petitioner: vellore citizens welfare forum vs. respondent: union of india & ors.

date of judgment: 28/08/1996 judgment

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

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 the tanneries 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 the effluent 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 order in respect or seven industries mentioned therein for a period 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 following order : "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 the closure orders in respect of various industries from time to time enable the said industries to install the pollution control devices.

this court by the order dated october 20, 1995 directed the national environmental engineering research institute, nagpur (neeri) to send a team of experts to examine, in particular, the feasibility of setting up of cetps for cluster of tanneries situated at, different places in, the state of tamil nadu where the work of setting up of the cetps has not started and also to inspect the existing cetps including those where construction work was in progress . neeri submitted its first report on december 9, 1995 and the second report on february 12, 1996. this court examined the two 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, 1996 and june 11, 1996 in respect of cetps set up by various industries. the neeri reports indicate that the physicochemical characteristics of ground water from dug wells in ranipath, thuthipath, valayambattu, vandyambadi and various other places do not conform to the limits prescribed for drinking purposes.

this court has been monitoring this petition for almost five years. the neeri, board and the central pollution control board (central board) have visited the tanning and other industries in the state of tamil nadu for several times. these expert bodies have offered all possible assistance to these industries. the neeri reports indicate that even the seven operational cetps are not functioning to its satisfaction. neeri has made several recommendations to be followed by the operational cetps. out of the 30 cetpsites which have been identified for tannery clusters in the five districts of north arcot ambedkar, erode periyar, dindigul anna, thrichi and chengai mgr. are under operation 10 are under construction and 13 are proposed. there are large number of tanneries which are not likely to be connected with any cetp and are required to set up pollution control devices on their own. despite repeated extensions granted by this court during the last five years and prior to that by the board the tanneries in the state of tamil nadu have miserably failed to control the pollution generated by them. it is no doubt correct that the leather industry in india has become a major foreign exchange earner and at present tamil nadu is the leading exporter of finished leather accounting for approximately 80% of the country's export. though the leather industry is of vital importance to the country as it generates foreign exchange and provides employment avenues it has no right to destroy the ecology, degrade the environment and pose as a health hazard. it cannot be permitted to expand or even to continue with the present production unless it tackles by itself the problem of pollution created by the said industry. the traditional concept that development and ecology are opposed to each of her, 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 court 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" 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 pring 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 153 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 and initiatives and agenda 21 a programme of action into the next century in areas like poverty, population and pollution. during the two decades from stockholm to rio "sustainable development" and came 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 eclogy and development has been accepted as a part of the customary international law though its salient feature have yet to be finalised by the international law jurists. some of the salient principles of "sustainable development", as culled-out from brundtland report and other international documents, are inter-generational equity, use and conservation of nature 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 vies 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 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 a sound principle by this court indian council for envirolegal action vs. union of india j.t. 1996 (2) 196. 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 any other person by his activity irrespective of the fact whether he took reasonable

care while carrying on his activity. the rule is premised upon the very nature of the activity carried on". consequently the polluting industries are "absolutely liable to compensate for the harm causedby them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas". the "polluter pays" principle as interpreted by this court means that the absolute 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 sufferers 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 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 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 of the central pollution control board by the central government and the constitution of one 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 or streams and wells fordisposal 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 later 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 judgement. in view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays pcinciple are part of the environmental law of the country. even otherwise once these principles are accepted as part of the customary international law there would be no difficultly in accepting them as part of the domestic law. it is almost accepted proposition of law that the rule of customary international law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law. to support we may refer to justice h.r. khanna's opinion in addl. distt. magistrate jabalpur vs shivakant shukla (air 1976 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 a persons right to fresh air, clean water and pollution free environment, but the source of the right is the inalienable common law right of clean environment. it would be useful to quote a paragraph from blackstone's commentaries on the laws of england (commentaries on the laws of england of sir willian blackstone) vol.iii, fourth edition published in 1876. chapter xiii, "of nuisance" depicts the law on the subject 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 british common law the right of a person to pollution environment isa part of the basic jurisprudence of the land. the statement of objects and reasons to the environment act, 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

free

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 coordination 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 which are 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 contains useful provisions for controlling pollution. the main purpose of the act is to create an authority or authorities under section 3(3) of the act with adequate powers to control pollution and protect the environment. it is a pity that till date no authority has been constituted by the central government. the work which is required to be done by an authority in terms of section 3(3) read with other provision of the act is being done by this court and the other courts in the country. it is high time that the central government realises its responsibility and statutory duty to protect the degrading environment in the country. if the conditions in the five districts of tamil nadu, where tanneries are operating, are permitted to continue then in the near future all rivers/canals shall be polluted, underground waters contaminated, agricultural lands turned barren and the residents of the area exposed to serious diseases. lt is, therefore, necessary for this court to direct the central government to take immediate action under the provisions of the environment act. there are more than 900 tanneries operating in the five districts of tamil nadu. some of them may, by now, have installed the necessary pollution control measures, they have been polluting the environment for over a decade and in some cases even for a longer period. this court has in various orders indicated that these tanneries are liable to pay pollution fine. the polluters must compensate the affected persons and also pay the cost of restoring the damaged ecology. mr. m.c. mehta, learned counsel for the petitioner has

invited our attention to the notification goms no. 213 dated march 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 the highly polluting industries. we have our doubts whether the above quoted government order is being enforced by the tamil nadu government. the order has been issued to control pollution and protect the environment. we are of the view that the order should be strictly enforced and no industry listed in annexure-l to the order should be permitted to be set up in the prohibited area. learned counsel for the tanneries raised an objection that the standard regarding total dissolved solids (tds) fixed by the board was no. justified. this court by the order date april 9, 1996 directed the neeri to examine this aspect and give its opinion. in its report dated june 11, 1996 neeri has justified the standards stipulated by the board. the reasoning of the neeri given in its report dated june 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 35, 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 the rules to lay down standards for emissions or discharge of environmental pollutants. rule 3(2) of the rules even permit the board to specify more stringent standards from those provided under the rules. the neeri having justified the standards stipulated by the board, we direct that these standards are to be maintained by the tanneries and other industries in the state of tamil nadu. keeping in view the scenario discussed by us in this judgment, we order and direct as under:1. the central government shall constitute an authority under section 3(3) of the environment (protection) act, 1986 and shall confer on the said authority all the powers necessary to deal with the situation created by the tanneries and other polluting industries in the state of tamil nadu. the authority shall be headed by a retired judge of the high court and it may have other members- preferably with expertise in the field of pollution control and environment protectionto be appointed by the central government. the central government shall confer on the said

authority the powers to issue directions under section 5 of the environment act and for taking measures with respect to the matters referred to in clause (v), (vi) (vii) (viii) (ix) (x) and (xii) of sub-section (2) of section 3. the central government shall consitute the authority before september 30, 1996. 2. the authority so constituted by the central government shall implement the "precautionary principle" and the "polluter pays" principle. the authority shall, with the help of expert opinion and after giving opportunity to the concerned polluters assess the loss to the ecology\environment in the affected areas and shall also identify the individuals/families who have suffered because of the pollution and shall assess the compensation to be paid to the said individuals/families. the authority shall further determine the compensation to be recovered from the polluters as cost of reversing the damaged environment. the authority shall lay down just and fair procedure for completing the exercise. 3. the authority shall compute the compensation under two heads namely, for reversing the ecology and for payment to individuals. a statement showing the total amount to be recovered, the names of the polluters from who the amount is to be recovered, the amount to be recovered from each polluter, the persons to who the compensation is to be paid and the amount payable to each of them shall be forwarded to the collector\district magistrates of the area concerned. the collector\district magistrate shall recover the amount from the polluters, if necessary, as arrears of land revenue. he shall disburse the compensation awarded by the authority to be affected persons/families. 4. the authority shall direct the closure of the industry owned/managed by a polluter in case he evades or refuses to pay the compensation awarded against him. this shall be in addition to the recovery from his as arrears of land revenue. 5. an industry may have set up the necessary pollution control device at present but it shall be liable to pay for the past pollution generated by the said industry which has resulted in the environmental degradation and suffering to the residents of the area. 6. we imposepollution fine of rs. 10,000/- each on all the tanneries in the districts of north arcot ambedkar, erode periyar, dindigul anna, trichi and chengai m.g.r. the fine shall be paid before october 31, 1996 in the office of the collector/district magistrate concerned. we direct the collectors/district magistrates of these districts to recover the fines from the tanneries. the money shall be deposited, alongwith the compensation amount recovered from the polluters, under a separate head called "environment protection fund" and shall be utilised for compensating the

affected persons as identified by the authorities and also for restoring the damaged environment. the pollution fine is liable to the recovered as arrears of land revenue. the tanneries which fail to deposit the amount by october 31, 1996 shall be closed forthwith and shall also be liable under the contempt of courts act. 7. the authority, in consultation with expert bodies like neeri, central board, board shall frame scheme/schemes for reversing the damage caused to the ecology and environment by pollution in the state of tamil nadu. the scheme/schemes so framed shall be executed by the state government under the supervision of the central government. the expenditure shall be met from the "environment protection fund" and from other sources provided by the state government and the central government. 8. we suspend the closure orders in respect of all the tanneries in the five districts of north arcot ambedkar, erode periyar, dindigul anna, trichi and chengai m.g.r. we direct all the tanneries in the above five districts to set up cetps or individual pollution control devices on or before november 30, 1996. those connected with cetps shall have to install in addition the primary devices in the tanerries. all the tanneries in the above five districts shall obtain the consent of the board to function and operate with effect from december 15, 1996. the tanneries who are refused consent or who fail to obtain the consent of the board by december 15, 1996 shall be closed forthwith. 9. we direct the superintendent of police and the collector/district magistrate/deputy commissioner of the district concerned to close all those tanneries with immediate effect who fail to obtain the consent from the board by the said date. such tanneries shall not be reopened unless the authority permits them to do so. it would be open to the authority to close such tanneries permanently or to direct their relocation. 10. the government order no. 213 dated march 30, 1989 shall be enforced forthwith. no. new industry listed in annexure-i to the notification shall be permitted to be set up within the prohibited area. the authority shall review the case of all the industries which are already operating in the prohibited area and it would be open to authority to direct the relocation of any of such industries. 11. the standards stipuated by the board regarding total dissolved solids (tds) and approved by the neeri shall be operative. all the tanneries and other industries in the state of tamil nadu shall comply with the said standards. the quality of ambient waters has to be maintained through the standards stipulated by the board. we have issued comprehensive directions for achieving the end result in this case. it is not necesary for this court to monitor these matters any further. we are of the

view that the madras high court would be in a better position to monitor these matters hereinafter. we, therefore, request the chief justice of the madras high court to constitute a special bench "green bench" to deal with this case and other environmental matters. we make it clear that it would be open to the bench to pass any appropriate order/orders keeping in view the directions issued by us. we may mention that "green benches" already functioning in calcutta, madhya pradesh and some other high courts. we direct the registry of this court to send the records to the registry of the madras high matter as a petition under article 226 of the constitution of india and deal with it in accordance with law and also in terms of the directions issued by us. we give liberty to the parties to approach the high court as and when necessary. mr. m.c. mehta has been assisting this court to our utmost satisfaction. we place on record our appreciation for mr. mehta. we direct the state of tamil nadu to pay rs. 50,000/- towards legal fees and other out of pocket expenses incurred by mr. mehta.

are

]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]]] ]] 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 rangnath venkatachalliah, m.n. (j) ojha, n.d. (j) citation: 1990 air 273 1989 scale (1)932 1989 scc (2) 540

act: bhopal gas leak disaster (registration and processing of claims) act, 1985: court giving reasons for the overall settlement order dated february 14, 1989--compelling duty both judicial and humane to secure immediate relief to the victims.

headnote: the bhopal gas leak tragedy that occurred at midnight of 2nd december, 1984, by the escape of deadly chemical fumes from the appellant's factory was a great industrial disaster and it took an immediate toil of 2600 human lives and left tens of thousands of innocent citizens of bhopal physically affected in various ways. as per the figures furnished by the union of india in its amended plaint a total number of 2,660 persons suffered agonising and excruciating deaths between 30,000 to 40,000 persons sustained serious injuries as a result of the said disaster. legal proceedings for the recovery of compensation for the victims were initiated against the multi-national company first in the u.s. courts and later in distt. court at bhopal in suit no. 113 of 1986. the present appeals concern with the order dated 4th april, 1988 passed by the madhya pradesh high court whereby it modified the interlocutory order dated 17.12.1987 made by the distt. judge and granted interim compensation of rs.250 crores. both the union of india and the union carbide corporation have appealed to this court against that order. the court by its order dated the 14th february, 1989 made in these appeals directed that there shall be an overall settlement of the claims in the suit for 470 million u.s. dollars and termination of all civil and criminal proceedings. on may 4, 1989 the court pronounced its reasons for its aforesaid order dated 14.2.89thus: 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 article 137 of the constitution. [132c-d] 129 the basic consideration motivating the conclusion of the settlement was the compelling need for urgent relief. considerations of excellence and niceties of legal principles were greatly over-shadowed by the pressing problems of very survival for a large number of victims. [133a, c] the instant case is one where damages are sought on behalf of the victims of a mass disaster, and having regard to the complexities and the legal question involved, any

person with an unbiased vision would not miss the time consuming prospect for the course of the litigation in its sojourn through the various courts, both in india and later in united states. this court considered it a compelling duty. both judicial and humane, to secure immediate relief to the victims. in doing so, the court did not enter upon any forbidden ground. what this court did was in continuation of what had already been initiated. [133e-f, h; 134a] the range of choice for the court in regard to the figures was, therefore, between the maximum of 426 million u.s. dollars offered by shri nariman and the minimum of 500 million u.s. dollars suggested by the attorney general. [134f-g] having regard to all the circumstances including the prospect of delays inherent in the judicial process in india and thereafter in the matter of domestication of the decree in the united states for the purpose of execution, the court directed that 470 million u.s. dollars which upon immediate payment and with interest over a reasonable period, pending actual distribution amongst the claimants, would aggregate very nearly to 500 million u.s. dollars or its rupee equivalent of approximately rs.750 crores which the attorney general had suggested. be made the basis of the settlement. [134g-h; 135a-b] the settlement proposals were considered on the premises that the government had the exclusive statutory authority to represent andact on behalf of the victims and neither counsel had any reservation as to this. the order was made on the premises that the bhopal gas leak disaster (registration and processing of claims) act 1985 was a valid law. [135b-c] there might be different opinions on the interpretation of laws or on questions of policy or even on what may be considered wise or unwise; but when one speaks of justice and truth, these words mean the same thing to all men whose judgment is uncommitted. [140b-c] the compulsions of the need for immediate relief to tens of 130 thousands of suffering victims could not wait till these questions, vital though they be, are resolved in due course of judicial proceedings. [142d-e] a settlement has been recorded upon material and in circumstances which persuaded the court that it was a just settlement. this is not to say that this court will shut out any important material and any compelling circumstances which might impose a duty on it to exercise the powers of review. like all other human institutions, this court is human and fallible. what appears to the court to be just and reasonable in that particular context and setting, need not necessarily appear to others in the same day. which view is right, in the ultimate analysis, is to be judged by what it

also

does to relieve the undeserved suffering of thousands of innocent citizens of this country. [142f-g] decisions of courts cannot be reacted or altered or determined by agitational pressures. if a decision is wrong, the process of correction must be in a manner recognised by law. all of those who invoke the corrective processes in accordance with law shall be heard and the court will do what the law and the course of justice requires. the matter concerns the interests of a large number of victims of a mass disaster. the court directed the settlement with the earnest hope that it would do hem good and bring them immediate relief, for, tomorrow might be too ate for many of them. but the case equally concerns the credibility of, and the 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; theories of compensation, r.e. goodin: oxford journal of legal studies, 1989 p.57 and wallace mendelson.. supreme court statecraft--the rule of law and men, referred to.

judgment: civil appellate jurisdiction: civil appeal nos. 3187 and 3188 of 1988. from the judgment and order dated 4.4.1988 of the madhya pradesh high court in cr no. 26 of 1988. anil b. dewan, j.b. dadachanji, mrs. a.k. verma for the appellant. k. parasaran, a. mariarputham, miss a. subhashini and c.l. sahu for the respondents. 131 the following order of the court was delivered: order the bhopal gas leak tragedy that occurred at midnight on 2nd december, 1984, by the escape of deadly chemical fumes from the appellant's pesticide-factory was a horrendous industrial mass disaster, unparalleled in its magnitude and devastation and remains a ghastly monument to the de-humanising influence of inherently dangerous technologies. the tragedy took an immediate toll of 2,660 innocent human lives and left tens of thousands of innocent citizens of bhopal physically impaired or affected in various degrees. what added grim poignance to the tragedy was that the industrial-enterprise was using methyl iso-cyanate, a lethal toxic poison, whose potentiality for destruction of life and biotic-communities was, apparently, matched only by the lack of a pre-package of relief procedures for management of any accident based on adequate scientific knowledge as to the ameliorative medical procedures for immediate neutralisation

of its effects. it is unnecessary for the present purpose to refer, in any detail, to the somewhat meandering course of the legal proceedings for the recovery of compensation initiated against the multi-national company initially in the courts in the united states of america and later in the district court at bhopal in suit no. 113 of 1986. it would suffice to refer to the order dated 4 april, 1988 of the high court of madhya pradesh which, in modification of the interlocutoryorder dated 17 december, 1987 made by the learned district judge, granted an interim compensation of rs.250 crores. both the union of india and the union carbide corporation appealed against that order. this court by its order dated 14 february, 1989 made in those appeals directed that there be an overall settlement of the claims in the suit, for 470 million us dollars and termination of all civil and criminal proceedings. the opening words of the order said: "having given our careful consideration 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-eminently 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 effectively 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 article 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 settlement? (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 companies 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 to the part of the settlement which terminated the criminal proceedings. the questions raised on the point in the review-petitions, prima facie, merit consideration and we should, therefore, abstain from saying anything which might tend to pre-judge this issue one way or the other. 133 the basic consideration motivating the conclusion of the settlement was the compelling need for urgent relief. the suffering of the victims has been intense and unrelieved. thousands of persons who pursued their own occupations for an humble and honest living have been rendered destitute by this ghastly disaster. even after four years of litigation, basic questions of the fundamentals of the law as to liability of the union carbide corporation and the quantum of damages are yet being debated. these, of course, are important issues which need to be decided. but, when thousands of innocent citizens were in near destitute conditions, without adequate subsistential needs of food and medicine and with every coming morrow haunted by the spectre of death and continued agony, it would be heartless abstention, if the possibilities of immediate sources of relief were not explored. considerations of excellence and niceties of legal principles were greatly over-shadowed by the pressing problems of very survival for a large number of victims. the law's delays are, indeed, proverbial. it has been the unfortunate baneof the judicial process that even ordinary cases, where evidence consists of a few documents and the oral testimony of a few witnesses, require some years to realise the fruits of litigation. this is so even

in cases of great and unquestionable urgency such as fatal accident actions brought by the dependents. these are hard realities. the present case is one where damages are sought on 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 time consuming prospect for the course of the litigation in its sojourn through the various courts, both in india and later in united states. it is indeed a matter for national introspection that public response to this great tragedy which affected a large number of poor and helpless persons limited itself to the expression of understandable anger against the industrial enterprise but did not channel itself in any effort to put together a public supported relief fund so that the victims were not left in distress, till the final decision in the litigation. it is well known that during the recent drought in gujarat, the devoted efforts of public spirited persons mitigated, in great measure, the loss of cattle-wealth in the near famine conditions that prevailed. this court, considered it a compelling duty, both judicial and humane, to secure immediate relief to the victims. in doing so, the court did not enter upon any forbidden ground. indeed, efforts had 134 earlier been made in this direction by judge keenan in the united states and by the learned district judge at bhopal. what this court did was in continuation of what had already been initiated. even at the opening of the arguments in the appeals, the court had suggested to learned counsel on both sides to reach a just and fair settlement. again, when counsel met for re-scheduling of the hearings the suggestion was reiterated. the response of learned counsel on both sides was positive in attempting a settlement, butthey expressed a certain degree of uneasiness and scepticism at the prospects of success in view of their past experience of such negotiations when, as they stated, there had been uninformed and even irresponsible criticism of the attempts at settlement. the learned attorney general submitted that even the most bona fide, sincere and devoted efforts at settlement were likely to come in for motivated criticism. the court asked learned counsel to make available the particulars of offers and counter offers made on previous occasions for a mutual settlement. learned counsel for both parties furnished particulars of the earlier offers made for an overall settlement and what had been considered as a reasonable basis in that behalf. the progress made by previous negotiations was graphically indicated and these documents form part of the record. shri nariman stated that his client would stand by its earlier offer of three hundred and fifty million us dollars and also submitted that his client

had also offered to add appropriate interest, at the rates prevailing in the u.s.a., to the sum of 350 million us dollars 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 tothis offer of 426 million us dollars the learned attorney-general submitted that he could not accept this offer. he submitted that any sum less than 500 million us dollars would not be reasonable. learned counsel for both parties stated that they would leave it to the court to decide what should be the figure of compensation. the range of choice for the court in regard to the figure was, therefore, between the maximum of 426 million us dollars offered by shri nariman and the minimum of 500 million us dollars suggested by the learned attorney general. in these circumstances, the court examined the prima facie material as to the basis of quantification of a sum which, having regard to all the circumstances including the prospect of delays inherent in the judicial-process in india and thereafter in the matter of domestication of the decree in the united states for the purpose of execution and directed that 470 million us dollars, which upon immediate payment 135 and with interest over a reasonable period, pending actual distribution amongst the claimants, would aggregate very nearly to 500 million us dollars or its rupee equivalent of approximately rs.750 crores which the learned attorney general had suggested, be made the basis of the settlement. both the parties accepted this direction. the settlement proposals were considered on the premise that government had the exclusive statutory authority to represent andact on behalf of the victims and neither counsel had any reservation as to this. the order was also made on the premise that the bhopal gas leak disaster (registration and processing of claims) act, 1985 was a valid law. in the event the act is declared void in the pending proceedings challenging its validity, the order dated 14, february, 1989 would require to be examined in the light of that decision. we should make it clear that if any material is placed before this court from which a reasonable inference is possible that the union carbide corporation had, at any time earlier, offered to pay any sum higher than an out-right down payment of us 470 million dollars, this court would straightaway initiate suo motu action requiring the concerned parties to show cause why the order dated 14 february, 1989 should not be set aside and the parties relegated to their respective original positions. the next question is as to the basis on which this court considered this sum to be a reasonable one. this is not

independent of its quantification, the idea of reasonableness for the present purpose is necessarily a broad and general estimate in the context of a settlement of the dispute and not on the basis of an accurate assessment by adjudication. the question is how good or reasonable it is as a settlement, which would avoid delays, uncertainties and assure immediate payment. the estimate, in the very nature of things, cannot share the accuracy of an adjudication. here again one of the important considerations was the range disclosed by the offers and counter offers which was between 426 million us dollars and 500 million us dollars. the court also examined certain materials available on record including the figures mentioned in the pleadings, the estimate made by the high court and also certain figures referred to in the course of the arguments. there are a large number of claims under the act. in the very nature of the situation, doubts that a sizeable number of them are either without any just basis or were otherwise exaggerated could not 136 be ruled out. it was, therefore, thought not unreasonable to proceed on some prima facie undisputed figures of cases of death and of substantially compensatable personal injuries. the particulars of the number of persons treated at the hospitals was an important indicator in that behalf. this court had no reason to doubt the bona fides of the figures furnished by the plaintiff itself in the pleadings as to the number of persons suffering serious injuries. from the order of the high court and the admitted position on the plaintiff's own side, a reasonable, prima facie, estimate of the number of fatal cases and serious personal injury 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 disaster ..... " (emphasis supplied) there is no scope for any doubt that the cases referred to as those of 'serious injuries' include both types of

cases of permanent total and partial disabilities of various degrees as also cases of temporary total or partial disabilities of different degrees. the high court relied upon the averments and claims in the amended pleadings of the plaintiff, the union of india, to reach this prima facie finding. then, in assessing the quantum of interimcompensation the high court did not adopt the standards of compensation usually awarded in fatal-accidents-actions or personalinjury-actions arising under the motor vehicles act. it is well-known that in fatal-accidentactions where children are concerned, the compensation awardable is in conventional sums ranging from rs.15,000 to rs.30,000 in each case. in the present case a large number of deaths was of children of very young age. even in the case of adults, according to the general run of damages in comparable cases, the damages assessed on the 137 usual multiplier-method in the case of income groups comparable to those of the deceased-persons, would be anywhere between rs.80,000 and rs. 1,00,000. but the high court discarded, and rightly, these ordinary standards which, if applied, would havelimited the aggregate of compensation payable in fatal cases to a sum less than rs.20 crores in all. the high court thought it should adopt the broader principle in m.c. mehta v. union of india, air 1987 sc 1086. stressing the need to apply such a higher 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 compensation, 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 unreasonable 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 disablement 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 the number of fatal cases and cases of serious personal injuries do not appear to have been disputed by anybody before the high court. these data and estimates of the high court had a particular significance in the settlement. then again, it was not disputed before us that the total number of fatal cases was about 3000 and of grievous and serious personal injuries, as verifiable from the records of the hospitals of cases treated 138 at bhopal, was in the neighbourhood of 30,000. it would not be unreasonable to expect that persons suffering serious and substantially compensable injuries would have gone to hospitals for treatment. it would also appear that within about 8 months of the occurrence, a survey had been conducted purposes of identification of cases of death and grievous and serious injuries for purposes of distribution of certain ex gratia payments sanctioned by government. these figures were, it would appear, less than ten thousand. in these circumstances, as a rough and ready estimate, this court took into consideration the prima facie findings of the high court and estimated the number of fatal cases at 3000 where compensation could range from rs.l lakh to rs.3 lakhs. this would account for rs.70 crores, nearly 3 times higher than what would, otherwise, be awarded in comparable casses in motor vehicles accident claims. death has an inexorable finality about it. human lives that have been lost were precious and in that sense priceless and invaluable. but the law can compensate the estate of a person whose life is lost by the wrongful act of another only in the way of the law is equipped to compensate i.e. by monetary compensations calculated on certain well-recognised principles. "loss to the estate" which is the entitlement of the estate and the 'loss of dependancy' estimated on the basis of capitalised present-value awardable to the heirs and dependants, are the main components in the computation of compensation in fatal accident actions. but, the high court in estimating the value of compensation had adopted a higher basis. so far as personal injury cases are concerned, about 30,000 was estimated as cases of permanent total or partial disability. compensation ranging from rs.2 lakhs to rs.50,000 per individual according as the disability is total or partial and degrees of the latter was envisaged. this alone would account for rs.250crores. in another 20,000 cases of temporary total or partial disability compensation ranging from rs. 1 lakh down to rs.25,000 depending on the nature and extent of the injuries and extent and degree of the temporary incapacitation accounting for a further allocation of rs. 100 crores, was envisaged. again,

for

there might be possibility of injuries of utmost severity in which case even rs.4 lakhs per individual might have to be considered. rs.80 crores, additionally for about 2000 of such cases were envisaged. a sum of rs.500 crores approximately was thought of as allocable to the fatal cases and 42,000 cases of such serious personal injuries leaving behind in their trail total or partial incapacitation either of permanent or temporary character. 139 it was considered that some outlays would have to be made for specialised institutional medical treatment for cases requiring such expert medical attention and for rehabilitation and after care. rs.25 crores for the creation of such facilities was envisaged. that would leave another rs.225 crores. it is true that in assessing the interim compensation the high court had taken into account only the cases of injuries resulting in permanent or temporary disabilities--total--or partial--and had not adverted to the large number of other claims, said to run into lakhs, filed by other claimants. such cases of claims do not, apparently, pertain to serious cases of permanent or temporary disabilities but are cases of a less serious nature, comprising claims for minor injuries, loss of personal belongings, loss of live-stock etc. for which there was a general allocation of rs.225 crores. if in respect of these claims allocations are made at rs.20,000, rs. 15,000 and rs. 10,000 for about 50,000 person or claims in each category--accounting for about one and half lakhs more claims--the sums required would be met by rs.225 crores. looked at from another angle, if the corpus of rs.750 crores along with the current market rates of interest on corporate borrowings, of say 14% or 14 1/2 % is spent over a period of eight years it would make available rs. 150 crores each year; or even if interest alone is taken, about rs. 105 to 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 run of damages in comparable accident claim cases and in cases under workmens compensation laws. the broad allocations made are higher than those awarded or awardable in such claims. these apportionments are merely broad considerations generally guiding the idea of reasonableness of the overall basis of settlement. this exercise is not a predetermination of the quantum of compensation amongst the claimants either individually or category-wise. no individual claimant shall be entitled to claim a particular quantum of compensation even if his case is found to fall within any of the broad categories indicated above. the determination of the actual quantum of compensation payable to the claimants has to be done by the authorities under the act, on the basis of the

facts of each case and without reference to the hypothetical quantifications made only for purposes of an overall view of the adequacy of the amount. 140 these are the broad and general assumptions underlying the concept of 'justness' of the determination of the quantum. 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 the basic assumptions underlying the settlement become wholly unrelated to the realities, the element of 'justness' of the determination and of the 'truth' of its factual foundation would seriously be impaired. the 'justness' of the settlement is based on these assumptions of truth. indeed, there might be different opinions on the interpretation of laws or on questions of policy or even on what may be considered wise or unwise; but when one speaks of justice and truth, these words mean the same thing to all men whose judgment is uncommitted. 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 many vital juristic principles of great contemporary relevance to the third world generally, and to india in particular, touching problems emerging from the pursuit of such dangerous technologies for economic gains by multi-nationals arose in this case. it is said that this is an instance of lost opportunity to this apex court to give the law the new direction on vital issues emerging from the increasing dimensions of the economic exploitation of developing countries by economic forces of the rich ones. this case also, it is said, concerns the legal limits to be envisaged, in the vital interests of the protection of the constitutional rights of the citizenry, and of the environment, on the permissibility of such ultra-hazardous technologies and to prescribe absolute and deterrent standards of liability if harm is caused by such enterprises. the prospect of exploitation of cheap labour and of captive-markets, it is said, induces multi-nationals to enter into the developing countries for such economic-exploitation and that this was eminently an appropriate case for a careful assessment of the legal and constitutional safeguards stemming from these vital issues of great contemporary relevance.

these issues and certain cognate areas of even wider significance 141 and the limits of the adjudicative disposition of some of their aspects are indeed questions of seminal importance. the culture of modern industrial technologies, which is sustained on processes of such pernicious potentialities, in the ultimate analysis, has thrown open vital and fundamental issues of technology-options. associated problems of the adequacy of legal protection against such exploitative and hazardous industrial adventurism, and whether the citizens of the country are assured the protection of a legal system which could be said to be adequate in a comprehensive sense in such contexts arise. these, indeed, are issues of vital importance and this tragedy, and the conditions that enabled it happen, are of particular concern. the chemical pesticide industry is a concomitant, and indeed, an integral part, of the technology of chemical farming. some experts think that it is time to return from the high-risk, resource-intensive, high-input, anti-ecological, monopolistic 'hard' technology which feeds, and is fed on, its self-assertive attribute, to a more human and humane, flexible, eco-conformable, "soft" technology with its systemic-wisdom and opportunities for human creativity and initiative. "wisdom demands" says schumacher" a new orientation of science and technology towards the organic, the gentle, the non-violent, the elegant and beautiful". the other view stressing the spectacular success of agricultural production in the new era of chemical farming, with highyielding strains, points to the break-through achieved by the green revolution with its effective response to, and successful management of, the great challenges of feeding the millions. this technology in agriculture has given a big impetus to enterprises of chemical fertilizers and pesticides. this, say its critics, has brought in its trail its own serious problems. the technology-options before scientists and planners have been difficult. indeed, there is also need to evolve a national policy to protect national interests from such ultra-hazardous pursuits of economic gains. jurists, technologists and other experts in economics, environmentology, futurology, sociology and public health etc. should identify areas of common concern and help in evolving proper criteria which may receive judicial recognition and legal sanction. one aspect of this matter was dealt with by this court in m.c. mehta v. union of india, (supra) which marked a significant stage in the development of the law. but, at the hearing there was more than a mere hint in the submissions of the union carbide that in this case the law was altered with only the union carbide corporation in mind, and 142

was altered to its disadvantage even before the case had reached this court. the criticism of the mehta principle, perhaps, ignores the emerging postulates of tortious liability whose principal focus is the social-limits on economic adventurism. there are certain things that a civilised society simply cannot permit to be done to its members, even if they are compensated for their resulting losses. we may note 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 compensation'--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 need for immediate relief to tens of thousands of suffering victims could not, in our opinion, wait till these questions, vital though they be, are resolved in the due course of judicial proceedings. the tremendous suffering of thousands of persons compelled us to move into the direction of immediate relief which, we thought, should not be subordinated to the uncertain promises of the law, and when the assessment of fairness of the amount was based on certain factors and assumptions not disputed even by the plaintiff. a few words in conclusion. a settlement has been recorded upon material and in circumstances which persuaded the court that it was a just settlement. this is not to say that this court will shut out any important material and compelling circumstances which might impose the duty on it to exercise the powers of review. like all other human institutions, this court is human and fallible. what appears to the court to be just and reasonable in that particular context and setting, need not necessarily appear to others in the same way. which view is right,in the ultimate analysis, is to be judged by what it does to relieve the undeserved suffering of thousands of innocent citizens of this country. as a learned author said: wallace mendelson: supreme court statecraft--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 reached or altered or determined by agitational pressures. if a decision is wrong, the process of correction must be in a manner recognised by law. here, many persons action groups claim to speak for the victims, quite a few in different voices. the factual allegations on which they rest their approach are conflicting in some areas and it becomes difficult to distinguish truth from false-hood and halftruth, and to distinguish as to who speaks for whom. however, all of those who invoke the corrective-processes in accordance with law shall be heard and the court will do what the law and the course of justice requires. the matter concerns the interests of a large number of victims of a mass disaster. the court directed the settlement with the earnest hope that it would do them good and bring them immediate relief, for, tomorrow might be too late formany of 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 the main contestants in the appeal, the benefit of some contrary or supplemental information or material, having a crucial bearing on the fundamental assumptions basic to the settlement, have been denied to the court and that, as a result, serious miscarriage of justice, violating the constitutional and legal rights of the persons affected, has been occasioned, it will be the endeavour of this court to undo any such injustice. but that, we reiterate, must be by procedures recognised by law. those who trust this court will not have cause for despair. 144

and social

petitioner: rural litigation & entitlement kendra vs. respondent: state of u.p. date of judgment30/08/1988 bench: misra rangnath bench: misra rangnath venkatachalliah, m.n. (j) citation: 1989 air 594 jt 1988 (4) 710 1989 scc supl. (1) 537 1988 scale (2)1574

act: constitution of india, 1950: article 32 limestone quarries- dehradun mussoorie belt-public interest litigation against pollution- high powered committee to be set up to look after re-afforestation, mining activities and bring about natural normalcy in the doon valley. %

forest (conservation) act 1980: limestone guarries in doon valley-- continuance of mining activity-impermissibility of. public interest litigation: procedure laws apply but every technicality in procedural laws not available in matters of grave public importance.

headnote: a letter-petition, and an application, containing allegations of unauthorised and illegal mining in the mussoorie-dehradun belt, affecting adversely the ecology and environmental order of the area, were directed to be registrered as writ petitions under public interest litigation. apart from the governments of the union and of uttar pradesh, several governmental agencies and mining lessees appeared in the proceedings. a number of committees and working groups were set up both by the court and the central government to look into the various aspects of the problem, their reports received and several comprehensive interlocutory directions issued. one of the committees, referred to as the bhargava committee, classified the mines into three groups, being a, b, c. on the basis of the recommendations of the bhargava committee report and other material the court directed, by its order dated 12th march, 1985, that category mines of the bhargava committee report should be closed down permanently. similar order was made in regard to category mines situated in the shasradhara block. the court further directed category mines located within the mussoorie municipal limits and the remaining b category mines to submit their mining scheme for scrutiny of the bandyopadhyay committee. the court, however, allowed category mines located outside the city limits to operate. pg no 690 pg no 691 some of the mines which were ordered to be closed down had earlier been refused renewal of their mining licences. these mines, however, continued to operate under the orders of various courts which had granted extension of their leases pending the final orders of the courts. this court, in its order dated 12th march, 1985 had therefore, directed that if any mining lessee of a mine, which had been ordered to be closed down, was running under the first grant or under court's orders after its expiry, it would not be entitled to take advantage of that position. in its order dated 16th december, 1986 this court recognised the need to strike a balance between preservation and utilisation of deposits, and urged the government to take a policy decision in the matter. the government

thereupon set up another committee to examine the working of the limestone mining operations in the doon valley. this committee inspected six mines which were operating. three of these mines were operating under valid mining leases and the other three, whose leases had expired in december 1982? were operating under orders of different courts. keeping in view the reports of the committee and the submissions at the bar, the court passed further orders. on behalf of the lessees it was contended: (1) decision of this court dated 12th march, 1985 was final in certain aspects including the release of the a category mines outside the city limits from the proceedings, and in view of such finality it is not open to this court in the same proceedings at a later stage to direct differently in regard to what has been decided earlier; (2) during the pendency of these writ petitions, the environment protection act of l986 has come into force and since that statute and the rules made thereunder provide detailed procedure to deal with the situations that arise in these cases, this could should no more deal with the matter and leave it to be looked into by the authorities under the act, and (3) there would be a total stalemate in the manufacture of drugs and sugar, as also steel,in case mining activity is stopped. disposing of the writ petition, this court, held: (1) "forest" was initially a state subject covered by entry 19 in list ii of the seventh schedule. in 1976, under the 42nd amendment the entry was deleted and entry 17a in the concurrent list was lnserted. the change from the state list to the concurrent list was brought about pg no 692 following the realisation of the central governmentthat `forests' were of national importance and should be placed in the concurrent list to enable the central government to deal with the matter. the same amendment of the constitution brought in article 48,a and article 51a(g) is part iva. [713h; 714a-b] (2) the forest (conservation) act, 1980 does not permit mining in the forest area. if mining activity even to a limited extent is permitted in future, it would be not congenial to ecology and environment, and the natural calm and peace which is a special feature of this area in its normal condition shall not be restored. this tourist zone in its natural setting would certainly be at its best if its serenity is restored in the fullest way. [7l0e-f] (3) by the court's order of 12th march, l985, the a category mining leases outside the city limits were only exempted from further scrutiny and not released from proceedings. if the court really intended to release the a category mines outside the city limits, it could very well pronounce that in clear terms. [706e-h] (4) the examination by this court when it made the order

the

of 12th march, 1985, omitted to consider the impact of the forest (conservation) act, 1980 which was then a statute in force. if the provision of the conservation act had been noticed and impact thereof for the continuance of mining activity bad been considered, perhaps the court would have made no exemptions and no mining may have been permitted. [706g] (5) the writ petitions are not inter-party disputes and have been raised by way of public interest litigation, and the controversy before the court is as to whether for safety and for creating a hazardless environment for the people to live in, mining in the area should be permitted or stopped. the court may not be taken to have said that for public interest litigations, procedural laws do not apply. at the same time, it has to be remembered that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for consideration before the court. even if it is said that there was a final order, in a dispute of this type it would be difficult to entertain the plea of res judicata. leaving the question open for examination in future would lead to unnecessary multiplicity of proceedings and would be against the interest of society. [707b-d] (6) these writ petitions were filed more than three years before the environment (protection) act, l986 came pg no 693 into force. this court appointed several expert commitees, received their reports and made directions. the several parties and their counsel have been heard for days together on different issues during the three and a quarter years of the pendency of the proceedings. the environment (protection) act does does purport to- and perhaps could not--take away the jurisdiction of this court to deal with a case of this type. in consideration of these facts, there is no justification to decline the exercise of jurisdiction at this stage. [707e-g] (7) ordinarily, the court would not entertain a dispute for the adjudication of which a special provision has been made by law but that rule is not attracted in the present situation in these cases. besides it is a rule of practice and prudence and not one of jurisdiction. [707h] (8) the forest (conservation) act, 1980 applies to renewals as well and even if there was a provision for renewal in the lease agreement on exercise of lessee's option,the requirements of l980 act had to be satisfied before 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 the judgment in the ambica quarry works case, that even if there has been an order of the court and no challenge is raised against such order, this court could invoke its jurisdiction to nullify the direction or order, and if any order, direction or decree has been passed ignoring the provisions of the conservation act of 1980 the same would not be binding. [7l8b-c] (10) parties have been heard on various aspects. an order made by this court to nullify the decrees in such circumstances would not be violative of the principles of natural justice. [718f] (11) it any decree or order has already been obtained from any court relating to renewal of these leases, the same shall stand vacated, and similarly any appeal or other proceeding taken to obtain a renewal or against order/decrees granting renewal shall also become nonest. [718g-h] (12) most of these mines are either within reserved forests or in forest lands as covered by the u.p. amendment of the forest act. to these areas the forest conservation pg no 694 act applies and to allow mining ia these areas even under strictest control as a permanent feature would not only be violative of the provisions of forest (conservation) act but would be detrimental to restoration of the forest growth in a natural way in this area. once the importance of forests is realised and as a matter of national policy and in the interests of the community, preservation of forests is accepted as the goal, nothing which would detract from that end should be permitted. in such circumstances, mining activity in this valley must be completely stopped. but such a situation will be available only after the original leases of the working mines are over. [726g-h; 727al (13) the court accepts the position that manufacture of drugs and sugar, as steel, would be hard-hit if mining 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 country apart from what has been indicated in the second affidavit of the union of india, the trade would adjust itself as every economic activity does. however, the position should be monitored and the switch-over from the present position to a total ban should be spread over a period and not be sudden. [727d-e] (14) in the circumstances, allowing the three on-going mines to operate for their initial period of lease is the most appropriate direction that can be given during the switch over from the present position to one of complete closing down of mining operation. [730c-h] (15) there is no dispute that continuance of mining operations effects environment and ecology adversely and at

the same time creates a prejudicial situation against conservation of forests. it is, therefore, necessary that each of these working mines shall have to work with an undertaking given to the monitoring committee that all care and attention shall be bestowed to preserve ecological and environmental balance while carrying on mining operations. [731d-e] (16) the court ordered the setting up of the monitoring committee to look after reafforestation, mining activities and all other aspects necessary to bring about natural normalcy in the doon valley. the court also issued directions regarding the finances, powers and duties of the monitoring committee. [733e] (17) the court has no other option but to close down the mining activity in the broad interests of the community. this, however, does not mean that the displaced mine owners pg no 695 should not be provided with alternative occupation. pious observation or even a direction in that regard may not be adequate. what is necessary is a time frame functioning if rehabilitation is to be made effective. it is, therefore, necessary that a committee should be set up to oversee the rehabilitation of the displaced mine owners. [732b-c]

judgment: original jurisdlcion : write petition (civil) nos. 8209 and 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, badri dass 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. 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. subba rao, 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, ranjit kumar, a.k. shrivastava, a.k. jain, a.d. sanger. pramod dayal, r.s. hedge, k.r. nagaraja, p.k. rao, m.n. shroff. n.n. keshwani, r.n. keshwani prashant bhushan and mr. nevva gupta advocates for the appearing parties. the judgment of the court was delivered by

s.r.

ranganath mlsra, j. on july 14, 1983, a letter received from the rural litigation and entitlement kendera, dehradun, bearing the date july 2, 1993, was directed to be registered as a writ petition under article 32 of the constitution and notice was ordered to the state of uttar pradesh and the collector of dehradun. allegations of unauthorised and illegal mining in the mussoorie- dehradun belt which adversely affected the ecology of the area and led to environment disorder were made. later on another application with similar allegations was directed to be tagged with the earlier one. that is how these two writ pg no 696 petitions were both in the registry of this court in a very innocuous manner as public interest litigation. the number of parties inflated both under the orders of the court and on application to be added. apart from the governments of the union and of uttar pradesh, several governmental agencies and mining lessees appeared in the proceedings. what initially appeared to be two simple applications for limited relief got expanded into a comprehensive litigation requiring appointment of committees, inspection and reports in them from time to time, serious exercises on the part of the mine owners before the committees, filing of affidavits both original and further, and lengthy arguments at the bar.these also necessitated several comprehensive interlocutory directions and orders. these two writ petitions are being disposed of by this common judgment. on august if, 1983, this court appointed a committee for inspection of the mines with a view to securing assistance in the determination as to whether safety standards laid down in the mines act of 1952 and the rules made thereunder have been followed and whether there was any danger of landside on account of quarrying operations particularly during the rainy season, and if there was any other hazard to any individual, cattle or agricultural lands on account of carrying of the mining operations. at the preliminary stage this court directed total stopping of blasting operations which, 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 an expert committee known as the working group had been set up by the union government which had also inspected these mines. the bhargava committee was of the view that the c group mines should be totally stopped; in the a group mines, quarrying could be carried on after ensuring that there was no ecological or environmental hazard; and in regard to the b group mines, the committee opined that those may not be closed down permanently but the matter should be probed further. a three-judge bench of this court by an order dated

march 12, 1985 (l985 3 scr 169) directed closure of the c category mines as also certain b category mines on permanent basis and gave directions in regard to further action to be taken by the bhargava committee. while making the order the court specifically stated that the reasons for the order would follow. one of the learned judges constituting the three-judge bench retired from the court on september 30, 1985, and the said learned judge (a.n. sen, j.) expressed his views in a short order dated 30th september, 1985. the pg no 697 working group appointed by the union government was also headed by the same mr. bhargava and had five other members. the examination by the two committees appeared to be with the same object, namely, as to whether the mining was being properly done and whether such activity should be carried on in this area. the working group and classified the mines into two categories being i and ii. they put those mines which according to them were suitable for continuing operation under category i and the mines which in their opinion were unsuitable for further mining under category ii. an interesting feature in these two reports seems to be that almost the same lime stone quarries which have been put by the bhargava committee under category a feature in category i of the working group. this court in its order of march 12, 1985, referred to those aspects and pointed out: "it will thus be seen that both the bhargav committee and the working group were unanimous in their view that the lime stone quarries classified in category a by the bhargav committee report and category i by the working group were suitable for continuance of mining operations. so far as the lime stone quarries in category c of the bhargav committee report are concerned, they were regarded by both the bhargav committee and the working group as unsuitable for continuance of mining operations and both were of the view that they should be closed down. the only difference between the bhargav committee and the working group was in regard to lime stone quarries classified in category b." this court had also appointed an expert committee consisting of prof. k.s. valdia, mr. hukum singh and mr. d.n. kaul to enquire and investigate into the question of disturbance of ecology and pollution and affectation of air, water and environment by reason of quarring operations or stone crushers and setting up of lime stone kilns. mr. kaul and mr. hukum singh submitted a joint report with reference to various aspects indicated in their order of appointment while prof. valdia submitted a separate report. in the order of march 12. 1985, this count took note of the position that prof. valdia's report was confined largely to the geological aspect and considerable reliance on the main boundary thrust (mbt) had been placed by him in making of the report and he had taken the view that the lime stone

quarries which were dangerously close to the mbt should be closed down in such as that was a sensitive and vulnerable belt. this court then took the view that not much pg no 698 importance could be placed to dr. valdia's report for this litigation. the joint report submitted by mr. kaul and mr. hukum singh had been taken into account by this court in makinginterim directions and for the making of the final order no specific reference is called for. in the order of march 12, 1985, this court directed that the c category mines of the bhargav committee report should be closed down permanently and if any mining lessee of such a mine was running under the first grant or under court's orders after its expiry, it would not be entitled to take advantage of the position. similar order was made in regard to the b category mines situated in the shasradhara block. this court directed a category mineslocated within the mussoorie municipal limits and the remaining b category mines to submit schemes subjected to further enquiry and ordered: "we accordingly appoint a high powered committee consisting of mr. d. bandyopadhyay, secretary, ministry of rural development as chairman, and shri h.s. ahuja, director general, mines safety, dhanbad, bihar, shri d.n. bhargav, controller general, indian bureau of mines, new secretariat building, nagpur and two experts to be nominated by the department of environment. government of india within four weeks from the date of this order. the lessees of the lime stone quarries classified as category a in bhargav committee report and for category p in the working group report and falling within the city limits of mussoorie as also the lessees of the lime stone quarries classified as category b in the bhargav committee scheme for mining their lime stone quarries to this committee (hereinafter called the bandyopadhyay committee) and if any such scheme or schemes are submitted the bandyopadhyay committee will proceed to examine the same without any unnecessary delay and submit a report to this court whether in its opinion the particular lime stone quarry can be allowed to be operated in accordance with the scheme and if so, subject to what conditions and if it cannot be allowed to be operated, the reasons for taking that view. the bandyopadhyay committee in making its report will take into account the various aspects which we had directed the bhargav committee and the kaul committee to consider while making their reports including pg no 699 the circumstances that the particular lime stone quarry may or may not be within the city limits of mussoorie and also give 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 filed before this court by many of the aggrieved lessees. it was directed in the aforesaid order of 12th march, 1985, that until the bandyopadhyay committee cleared the particular mines for operation, mining activity in regard to all mines covered within the purview of examination by that committee would stop. this court, however, allowed a category mines located outside the city limits to operate. while directing closure of the shasradhara area b category mines and all the c category mines, as also a and b category mines within the municipal limits this court made it clear that the ban indicated by it would supersede any order of any other court. the court observed: "the consequence of this order made by us would be that the lessees of lime stone quarries which have been directed to be closed down permanently under this order or which may be directed to be closed down permanently after consideration of the report of the bandyopadhyay). committee, would be thrown out of business in which they have invested large sums of money and expanded considerable time and effort. this would undoubtedly cause hardship to them but it is a price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance of ecological balance and 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 the forest (conservation) act of 1980 when it permitted the a category lime stone quarries located outside the city limits to operate. this court made several orders relating to specific aspects after the order of 12th march, 1985. one such order was made on 30th may, 1985, (1985 (3) scc 614), another on '18th december, 1986, (1986 suppl. scc 517) where reasons for the order of 12th march, 1985, given, and yet another order was made on 19th october, 1987 (air 1987 sc 2426). we pg no 700 shall refer to the last of these orders in a later part of this judgment. in the order of 16th december, 1986, when the reasonings for the order dated 12th march, 1985 were given, this court had stated: "it is for the government and the nation-and not for the court to-decide whether the deposits should be exploited at the cost of ecology and environmental consideration or the industrial requirement should be otherwise satisfied. it may be perhaps possible to exercise greater control and vigil over the operation and strike a balance between preservation and utilisation; that would indeed be a matter for an expert body to examine and on the basis of appropriate advice,

government should take a policy decision and firmly implement the same." the court had also indicated in its earlier order that it should be ensured that the low grade cilica content lime stone is specifically utilised only in special industries having regard to its quality and should not be wasted by being utilised for purposes for which this special grade lime stone is not required. keeping these aspects in view, the government of india in the ministry of environment and forests, department of environment, forests and wildlife, constituted a committee to examine the working of the lime stone mining operations in the doon valley by its memorandum no. j-20012/48/86-1a, dated 30th of december, 1986, which was also called the working group. shri d.n. bhargava was nominated as chairman and 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 hindu university, varanasi; and shri r. mehta, principal scientific officer, department of environment, forest and wildlife, new delhi. shri verma was substituted by shri n. mishra, deputy director general, northern zone. the terms of reference of the committee were: (i) whether the operations are being carried out on scientific lines? (ii) whether the limestone quarried is being supplied to end-users as stipulated by the supreme court; and (iii) the extent to which the mining operations are contributing to environmental damage? pg no 701 this committee visited the six mines which are operating and indicated: "the limestone deposits of dehradun-mussoorie area are highly valuable mineral resource now essentially required by the steel industry and it would be necessary to exploit them, of course, in a very planned and systematic manner.' the committee addressed itself to two aspects, namely,(i) those which were considered suitable for mining operations, and (ii) those which were considered unsuitable for further mining. the committee whose entire report has been made available to us came to the following conclusions in regard to each of the six operating mines. (i) lambidhar limestone mine of m/s uttar pradesh state mineral development corporation ltd. (upsmdc) is a state undertaking and holds a mining lease of 97 hectares covering the lambidhar hills and the lease is valid up to. 10th march, 1996. the committee found that 36% of its production was 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 this position. it further found that while colour limestone which is a metamarphose is being recorded as a minor mineral whereas it was learnt that it was being used for despatch as major mineral. the arrangement for classification of the lime stone also was not acceptable to the committee. it further found: "the hill slopes and the river/nallah base are covered by scree generated both during road construction as well as subsequent mining operations. this is the result of allowing the excavatedmaterial to roll down the slopes. the committee is of the opinion that road making may be done with front-end loader instead of bulldozer as with latter equipment excavated materials roll down the hill slope uncontrolably. the vegetation cover along the slopes has been damaged by the rolling material as well as the pg no 702 excavation made for the road making and the hills present an ugly look. hydro-seeding may be done to improve looks of hill slopes. deposition of debris/scree in the nullahs specially in betarli is the cause of concern because it happens to be one of the main steams which is source-of water supply to the villages as well as dehradun city. the approach road has reached the top and mining operations have been started but not work on reclamation of mined out area has yet commenced. a proper disposal yard for stocking debris must be provided so that the present practice of disposing it near the camp office on the bank of the violet is prevented. details of arrangements for controlling dust both in mining and crushing operations are not available." upsmdc is the largest of the working mines and apart from the fact that it belongs to the government of uttar pradesh, it has also the largest of investment. it has been claimed before us on its behalf that it operates most scientifically and satisfies all the requirements appropriate for ecological and environmental safeguards. the report of the committee, extracted above, negatives all these claims. (ii) we shall now refer to m/s punjab lime and limestone company which has two mines both of which are working. lease no. 14 covers 44.5 hectares and is a lease for 20 years from 1966; as such it has already expired. lease no. 96 is for 28.92 hectares and would expire in december, 1989. lease no. 14 had two areas and this court disallowed mining in the northern block. the committee found that 16.4 hectares equal to 41 acres, out of lease no. 96 comprised of thick forest and the lessee had surrendered the forest area. the mining operation is being carried on in lease no. 14 under orders of the court and the residual portion of lease no. 96. the committee found that the scheme which had been offered to the bandyopadhyay committee was in regard to the mining in the northern block of lease no. 14 which has since been

abandoned. it further transpires that about 27% of its output during 1986 was supplied for the steel industry. the report indicates that there is little generation of scree. as there is sparse growth of trees in the area covered by the mines, no significant deforestation is involved. disposal of overburden is not significant check dams have been set up in the lower reaches which are on the right bank of bhitarli river and no significant fall of the scree into the river was apprehended: (iii) next is lease no. 72 of shri r.k. oberai which would expire on 10th of april, 1994. it has an area of 15.92 pg no 703 hectares. the committee found that this mine lies in the upper reaches of the song river. thick forest growth is seen close to the mine and the committee gathered that the forest authorities have declined permission to extend the mine workings beyond rl 1280. the committee found that the lessee has undertaken to carry out afforestation and has also started compensatory forestory in the adjacent areas. there was no apprehension of spreading of scree and future mining operations are not likely to involve any significant deforestation. the committee also has opined that there is no apprehension of choking of the water-ways due to mining operations as the song river flows about 400 mts. away. apart from these three mines which are operating under valid mining leases, the committee inspected the mines corresponding to iease nos. 16, 17 and 76, belonging to ved pal singh chaudhary, seth ram avtar and shri c.g. gujral respectively. all these leases have expired in december, 1982, and under orders of different courts mining is being carried on. bhitarli kalan limestone mines of shri ved pal singh chaudhary was a lease for 38.8 hectares and expired on 29th december, 1982. this court has already directed closure of mining operation in a small area on the left bank of bhitarli river. seth ram avtar has a lease of 14. 18 hectares on the left bank of bhitarli river and the lease expired on 2nd december, 1982. the committee found that he had environment management plan. the working plan submitted by the iessee did not show any plantation area. the last of the working mines which the committee visited is that of shri c.g. gujaral. the iease was for 24.16 hectares and expired on 17th december, 1983. the committee found that the iease area contained very good forest. the rolling of scree/debris along the slopes had left not only ugly scars but also resulted in destruction of the green cover. the debris flow has also choked the sansaru nullah which once used to be a perennial stream. there was no environmental management plan. in fact the committee came to the conclusion that the working of this mine was not

no

conducive to the environmental conservation. we have in another part of this judgment indicated our conclusion that mining activity as a whole should be stopped in the doon valley but for the reasons indicated therein, we have also come to the conclusion that the three mining pg no 704 lessees who have been operating under valid lease may be permitted to work subject to such conditions as have been indicated. keeping the report of the working group in view and for the reasons we have elsewhere indicated, we direct that mining operations in lease nos. 16, 17 and 76 where the respective leases have expired and mining operation is being carried on under court's orders, shall stop and the several orders of the courts enabling mining activity shall stand superseded. 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 doon valley area should generally be stopped and reasons therefor we shall provide in due course." in another part of this judgment, reasons in support of that conclusion have been provided. the direction to close down the three operating mines where the period of lease has expired is to bring the position in accord with that conclusion. one of the submissions advanced at the bar is that the decision of this court dated 12th march, 1985, was final in certain aspects including the release of the a category mines outsidethe city limits of mussoorie from the proceedings and in view of such finality it is not open to this court in the same proceedings at 3 latter stage to direct differently in regard to what has been decided earlier. connected with this submission is the contention that during the pendency of these writ petitions, the environmental (protection) act of 1986 has come into force and since that statute and the rules made: thereunder provide detailed procedure to deal with the situations that arise in these cases, this court should no more deal with the matter and leave it to be looked into by the authorities under the act. counsel have relied upon what was stated by this court while giving reasons in support of the order of march 12, 1985, namely, "it is for the government and the nation-and not for the court-to decide whether the deposits should be exploited at the cost of ecology and environmental considerations." in the order of 12th march, 1985, this court had pointed out: "so far as the lime stone quarries classified as category). a in the bhargav committee report and/or category 1 in the working group report are concerned, we would divide them into two classes, one class consisting of those lime pg no 705

stone quarries which are within the city limits of mussoorie and the other consisting of those which are outside the city limits. we take the view that the lime stone quarries falling within category a of the bhargav committee report and/or category 1 of the working group report and falling outside the city limits of mussoorie, should be allowed to the operated subject, of course, to the observance of the requirements of the mines act, 1952, the metalliferous mines regulations, 1961 and other relevant statutes, rules and regulations. of course when we say this, we must make it clear that we are not holding that if the leases in respect of these lime stone quarries have expired and suits or writ petitions for renewal of the leases are pending in courts, such leases should be automatically renewed. it will be for the appropriate courts to decide whether such leases should be renewed or not having regard to the law and facts of each case. so, far as the lime stone quarries classified in category a in the bhargav committee report and category 1 in the working group report and falling within the city limits of mussoorie are concerned, we would give the same direction which we are giving in the next succeeding paragraph in regard to the lime stone quarries classified as category b in the bhargav committee report." the argument that a category mines outside the city limits had been cleared is based upon what has been indicated above. dealing with this of the direction, this court in its order of 19th october, 1987, stated : consciousness regarding environmental upkeep is of recent origin. cognizance of ecological importance entered into governmental activity only in this decade. everyday that consciousness as also the sense of social obligation in this regard are on the increase. it has been pointed out to us in course of hearing of the objections that the classification of the a category iime stone quarries on the basis of their location-within the municipal limits and outside--was indeed not a real one. we have been shown and it seems to be factually true that some of the lime stone quarries said to be outside the city limits are closer to the heart of the city of mussoorie that others located within the city limits. if the real purpose of the order made by this court was not to permit mining within the pg no 706 city limits without further scrutiny as in the case of b category stone quarries, we really do not see any justification as to why these stone quarries located outside the city limits but close to the heart of the city should not have been subjected to such scrutiny. since the writ petitions have not been finally disposed of and the order made in regard to the a category quarries located outside the city limits by the judgment referred to above only exempted them from further scrutiny as was directed in

the

has

respect of the other quarries, we see no impediment in matter of giving a re-look at the matter even with reference to the a category quarries located outside the city limits. in this connection it is relevant to take note of the fact that the state government has already formed an improvement programme of the area by constituting a combined body for mussoorie and dehradun. the considerations which had weighed with the court on the basis of municipal limits has indeed to be extended not to the entire area covered by the new scheme. we are, therefore of the view that the a category stone quarries in this area irrespectlve of location within or outside city limits should be subjected to further order of this court and there is no legal impediment 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 iimits were only exempted from further scrutiny and not released from the proceedings. our order of 18th december, 1986, left certain aspects to be considered by the state and immediately the central government responded by appointing the second working group. we would like to reiterate what we have already said in the order of 19th of october, 1987, that the examination by this court when it made the order of 12th march, 1985, omitted to consider the impact of the forest (conservation) act of 1980 which was then a statute in force. if the provisions of the conservation act had been noticed and impact thereof for the continuance of mining activity had been considered, perhaps the court would have made no exemptions and no mining may have been permitted. besides, if the court really intended to release the a category mines outside the city limits, it could very well pronounce that in clear terms. pg no 707 in view of what we have indicated above, it is difficult to accept the stand taken by some of the lessees and by mr. nariman appearing for the intervener that a final order has been by this court in regard to the a category mines outside the city limits of mussoorie. the writ petitions before us are not inter-party disputes and have been raised by way of public interest litigation and the controversy before the court is as to whether the social safety and for creating a hazardfess environment for the people to live in, mining in the area should be permitted or stopped. we may not be taken to have said that for public interest litigations, procedural laws do not apply. at the same time it has to be remembered that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for consideration before the court. even if it is said that there was a final order, in a dispute of this type it would be difficult to entertain the plea of res judicata. as we

the

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 leaving the question open for examination in future would lead to unnecessary multiplicity of proceedings and would be against the interests of society. it is mete and proper as also in the interest of the parties that the entire question is taken into account at this stage. undoubtedly, the environment (protection) act, 1986 (29 of 1986) has come into force with effect from 19th november, 1986. under this act power is vested in the central government to take measures to protect and improve environment. these writ petitions were filed as early as 1983-more than three years before the act came into force. this court appointed several expert committees, received their reports and on the basis of materials placed before it, made directions, partly final and partly interlocutory, in regard to certain mines in the area. several directions from time to time have been made by this court. as many as four reportable orders have been given. the several parties and their counsel have been heard for days together on different issues during the three and a quarter years of the pendency of the proceedings. the act does not purport toand perhaps could not-take away the jurisdiction of this court to deal with a case of this type. in consideration of these facts, we do not think there is any justification to decline the exercise of jurisdiction at this stage. ordinarily the court would not entertain a dispute for the adjudication of which a special provision has been made by law but that rule is not attracted in the present situation in these cases. besides it is a rule of practice and prudence and not one of jurisdiction. the contention against pg no 708 exercise of jurisdiction advanced by mr. nariman for the intervener and reiterated by some of the lessees before this court must stand overruled. we shall now briefly indicate reasons in support of our conclusion mentioned in the order of october 19, 1987, that mining in this area should be stopped. kalidas, the greatest of the indian poets, sang the praises of the himalayas in 'meghadoot' by describing it as the loftiest mountain on earth surface located on the north of the country. the himalayan ranges apart from operating as a natural seal on the northern border against intruders, have influenced the climate, culture, ecology and environment of the sub continent. these are the ranges from where originate several perennial rivers like the ganges and the yamuna. these two rivers which mingle at allahabad and later flow into the bay of bengal as one river have built up what is known as the gangetic belt-the most fertile part of lndia. the lcgendary tradition of our culture is deeply

the

associated with these two rivers. apart from providing succour to millions of people who inhabit this belt. yamuna is said to have provided the backdrop of krishna leela. the catchment area of this river is spread over the mussoorie hills-otherwise known as the doon valley with which we are concerned. before a quarter of a century, yamuna was having adequate water flow through-out the year. unlike the ganges which has her main tributaries originating from the snowclad regions of the mountain range and melting snow in summer helping the tributaries to be perennial, the yamuna used to receive the bulk of her water from the streams joining her in the lower regions. the doon valley used to receive sumptuous rains during the season; the tree roots helped the water to be stored; the lime stone mines operated as aquifers. the stored water was released in a continuous process and that streams even without the support of melting snow, provided perennial supply tothe yamuna. assured of such supply, the twin cities of mussoorie and dehradun grew up. lower down, hundreds of villages and small towns had also sprung up. lime stone mining operations in the doon valley became wide-spread during the decade between 1955 and 1965 and many of the leases were granted in 1962. in the decade after 1965. the depredation, of mining began to be felt. peace and tranquillity of the valley was gone. trees were felled at random and lush green forests disappeared. blasting affected and shook up the hills. rocks and scree rolled down and killed or injured the cattle, damaged the cultivable lands and adversely affected the villagers. the natural beauty of pg no 709 the queen of the hill stations was no more to be seen. with the felling of the forests, rains became less, with the trees gone and the lime stone dug out, the aquifers ceased to exist. the streams got blocked by scree and stones and the flow of water was substantially reduced. tourist traffic was adversely affected. irrigation was no more possible. the tributaries no longer fed the yamuna sufficiently. dehradun experienced scarcity of even drinking water. these led to the despatch of the letter in july, 1983 to this court. the doon valley lime stone deposits are a gift of nature to mankind. underneath the soil cover there is an unseen store house of bountry almost everywhere. similarly forests provide the green belt and are a bequest of the past generations to the present. lime stone deposits if excavated and utilised get exhausted while if forests are exploited, there can be regeneration provided reafforestation is undertaken. trees, however, take time to grow and ordinarily a 15 to 25 year period is necessary for such purpose. we have already indicated that several expert committees appointed by this court have opined generally against continuing the mining activity in the valley. the second

working group found in as late as 1987 that limited mining in the on-going mines was not congenial to ecological and environmental discipline. this court by its order on october 19, 1987, (alr 1987 sc 2426) called the union of india: "..... to place before the court on affidavit the minimum total requirement of this grade of lime stone for manufacture of quality steel and defence armaments. the affidavit should also specify as to how much of high grade ore is being imported into the country and as to whether other indigenous sources are available to meet such requirement. this court would also require an affidavit from responsible authorities of the union of lndia as to whether keeping the principles of ecology, environmental protection and safeguards and anti-pollution measures, it is in the interest of the society that the requirements should be met by import or by taking other alternate indigenous sources or mining activity in this area should be permitted to a limited extent. the court expects the union of lndia to balance these two aspects and place on record its stand not as a party to the litigation but as a protector of the pg no 710 environment in discharge of its statutory and social obligation for the purpose of consideration of the court . . the two affidavits filed on behalf of the union of india have been dealt with elsewhere in the judgment and it would be sufficient for the instant aspect to extract from the affidavit of mr. seshan, secretary to the government in the ministry of environment and forests, where he has stated : "5.1 union of india submits that from the point of view of protection of the environment in the unique doon valley, it would be desirable that lime stone mining operations in the valley are stopped completely." nariman questioned the value of this statement in view of the indication in the affidavit that it was the department's submission to the court. we do not think that the ministry secretary's affidavit can be brushed aside that way. read in the background of the directions in the order of 19th october, 1987, and in the sequence of the first affidavit not having been accepted by the court as compliance, we must assume that mr. seshan has disclosed the stand of the union of india with full authority and with the intention 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 is sufficient to note that the act does not permit mining in the forest area. we are also satisfied that if mining activity even to a limited extent is permitted in future, it would be not congenial to ecology and environment and the natural calm and peace which is a special feature of this area in its normal condition shall not be restored. this tourist zone in its natural setting would certainly be at

its best if its serenity is restored in the fullest way. we are of the considered opinion that mining activity in this valley must be completely stopped but as indicated in another part of this judgment such a situation will be available only after the original leases of the working mines are over. it is time to turn to the contention relating to forests. air and water are the most indispensable gifts of nature for preservation of life. abundant sun-shine together with adequate rain keeps nature's generating force at work. human habitations all through the ages have thrived on river banks and in close proximity of water sources. forests have natural growth of herbs which provide cure for diseases. pg no 711 our ancestors knew that trees were friends of mankind and forests were necessary for human existence and civilization to thrive. it is these forests that provided shelter for the 'rishies ' and accommodated the ancient 'gurukulas'. they too provided food and sport for our forefathers living in the state of nature. that is why there is copious reference to forests in the vedas and the ancient literature of ours. in ancient times trees were worshiped as gods and prayers for up-keep of forests were offered to the divine. in the artharva 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 to live away from forests. yet the human community depended fieavily upon the forests which caused rains and provided timber, fruits, herbs and sports. with sufficient sun-shine and water there was luxuriant growth of forests in the tropical and semi-tropical zones all over the globe. then came the age of science and outburst of human population. man requiredmore of space for living as also for cultivation as well as more of timber. in that pursuit the forests were cleared and exploitation was arbitrary and excessive; the deep forests were depleted; consequently rainfall got reduced; soil erosion took place. the earth crust was washed away and places like cherapunji in assam which used to receive an average annual rainfall of 500 inches suffered occasional drought. scientists came to realise that forests play a vital role in maintaining the balance of the ecological system. they came to know that forests preserve the soil and heavy humus acts as a porous reservoir for retaining water and gradually releasing it in a sustained flow. the trees in the forests draw water from the bowls of the earth and release the same into the atmosphere by the process of transpiration and the same is received back by way of rain as a result of

condensation of clouds formed out of the atmospheric moisture. forests thus help the cycle to be completed. trees are responsible to purify the air by releasing oxygen into the atmosphere through the process of photosynthesis. it has, therefore, been rightly said that there is a balance on earth between air, water, soil and plant. forests hold up the mountains, cushion the rains and they discipline the rivers and control the floods. they sustain the springs; they break the winds; they foster the bulks; they pg no 712 keep the air cool and clean. forests also prevent erosion by wind and water and preserve the carpet of the soil. in the second half of the 19th century felling of trees came to be regulated. in 1858, the department of forestry was set up and in 1864 the first inspector general of forests was appointed. in the following year the first indian forest act came into the statute book to be followed by another act in 1878 and yet another in 1927 which is still in force providing measures of regulation. this act has been amended in the various states and presently reference shall be made to the relevant amendments in uttar pradesh. laying the railway track and providing sleepers therefor required clearing of forest areas and cutting down of trees. during the second world war indian forests were very badly mauled for various defence purposes. by the time india became independent it had about 2 per cent of the earth's land area, 1 per cent of productive forest area 15 per cent of world's population and 10 per cent of world's animal life-a situation indicative of the fact that there was acute deficit of forest area. the government of lndia declared its national forest policy in 1452 which laid down that forests should occupy 33 per cent of the land surface as against 23 per cent then attention was intended to the bestowed for expansion of forests in each of the five-year plans that followed with a view to rehabilitating the forests. the demand occasioned by the growing population and the spread of economic development and consequent demand of timber as raw material as also feul led a excessive exploitation of the forests and consequent clearing of forest areas notwithstanding the declared of national forest policy. it is interesting to note that the national per capita average of forest area works out to 0. 11 hectare as against an international average of 1.5 hectare. state-wise, arunachal pradesh has per capita forest of 8.2.1 hectares which is the maximum and haryana has the minimum being 0.01 hectare (figures based on census report of 1981 and the report of the central forestry commission). while some of the 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 report on social forestry in india: problems and prospects [1986] has indicated: pg no 713 `the treeless expense of land provides an environment least conductive to healthy living. tree leaves recharge the atmosphere with life giving oxygen, take away excess carbondioxide and transmit moisture to the atmosphere by way of transpiration. it is estimated that one hectare of woodland consumes 3.7 tonnes of carbondioxide and gives out 2 tonnes of oxygen per year. denied these beneficial processes, life becomes lead heavy. a tree-covered environment is much healthier to live and work in. amongst the immediately perceptible effects of loss of vegetative protection are soil erosion, floods and droughts. if trees and other vegetations are present, they bear the burnt of winds, heat, cold and rain water, first in their crowns and foliage. the soil remains covered by humus, decomposing litter and freshly fallen leaves which protect it from direct action of the adverse natural forces. in a wooded area the flow of rain water gets regulated through the ieaves and the spongy material overlying the soil; but in a barren, unprotected surface the rain drops hit the soil directly and the water flows torrentially, dislodging and carrying with it the soil participles which have taken hundreds of years to form. this results in disastrous floods in lower areas causing damage to life and property. fast running water also causes landslides and other calamities en route. with all the rain water having run away in the form of floods the land surface losses its resiliance to drier spells and severe droughts are caused. the removal of soil by water produces fertility and the productive capacity of the up-lands to a considerable degree. it is estimated that nearly 6,000 million tonnes of soil is washed away every year in floods. with that go 6.0 million tonnes of nutrients-more than the amount that is applied in the form of fertilisers." we shall now deal with legislative measures to preserve the forests and impact of such provisions on mining after briefly referring to the legislative power in regard to forests. "forest" was initially a state subject covered by 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 inserted. the change from the state list to the concurrent list was brought about following the pg no 714 reallsation of the central government that forests were of national importance and should be placed in the concurrent list to enable the central government to deal with the

matter. the same amendment of the constitution brought in article 48-a in part iv providing thus: "the state shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country." article 51-a in part iv-a of the constitution inserted by the same amendment provided a set of fundamental duties and clause (g) runs thus: "it shall be the duty of every citizen of india(g) to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures." 1972 marks a watershed in the history of environmental management so far as india is concerned. the national committee of environment and planning and coordination was set up and various steps were taken to implement the recommendations already made and to be made: thereafter. the national commission on agricultural in 1976 noticed the inadequate implementation of the 1953 national forest policy and proposed the following amendments: (i) provision for prior approval of the central government before taking steps for dereservation diversion of forest lands to non-forest use. (ii) preventing and evicting encroachment of forest lands. (iii) safeguarding against monoculture practices in raising forest plantations so that preservation of habitats for natural flora and fauna is ensured. (iv) encouraging large scale industrial plantation to foster growth of forest industries. pg no 715 the problem of forest preservation and protection was no more to be separated from the life style of tribals. the approach required a shift from the dependence on law and executive implementation to dependence on the conscious and voluntary participation of the masses. this required educating the masses as well as appropriate education of the departmental employees. in this background the forest (conservation) act of 1980 was enacted with which we propose presently to deal after noticing certain provisions of the indian forest act of 1927. the forest act of 1927 deals with four categories of forests, namely1. 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 are government property while the last refers to control over forests and lands which are not government property. most of the private forests covered under the fourth category were

or

earlier parts of estates which have now been abolished and thus such forests have also become government property. in uttar pradesh there have been several amendments of forest act and chapter v-a has been incorporated which provides for control over forests of claimants. detailed procedure has been laid in chapter ii in respect of reserved forests. section 3 vests power in the state government to reserve forests. the process for reservation of forests starts with section 4 and ends up with the final declaration under section 20. section 27 vests power in the state government to declare a forest to be no longer reserved. as noticed earlier, notwithstanding the regulatory provisions in the forest act of 1927 and the government's national forest policy of 1952, forests generally got rapidly depleted. to meet this alarming situation the forest (conservation) ordinance of 1980 was promulgated by president and the ordinance was followed by the forest (conservation) act of 1980. the statement of objects and reasons, as far as relevant, point out: pg no 716 "deforestation causes ecological imbalance and leads to environmental deterioration. deforestation had been taking place on a large scale in the country and it had caused widespread concern. with a view to checking further deforestation the president promulgated on the 25th october, 1980, the forest (conservation) ordinance, 1980. the ordinance made the prior approval of the central government necessary for dereservation of forests and for use of forest land for nonforest purposes. the ordinance also provided for the constitution of an advisory committee to advice the central government with regard to grant of such approval." section 2 of the act which is relevant provides: "notwithstanding anything contained in any other law for the time being in force in a state, no state government or other authority shall make, except with the prior approval of the central government. any order directing(i) that any reserved forest (within the meaning of the expression reserved forest) in any law for the time being in force in that state or any portion thereof, shall cease to be reserved ; (ii) that any forest land or any portion thereof may be used for any non-forest purpose. explanation- for the purposes of this section non-forest purpose means breaking up or clearing of any forest land or portion thereof for any purpose other than reafforestation." thus the power which was vested in the state government under section 27 of the indian forest act of 1927 or any other law containing a similar provision is now exercisable subject to prior approval of the a central government. this court dealt with the provisions of the 1980 act in

the

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the case of ambica quarry works v. state of gujarat and ors., [1987] 1 scc 213. the question of renewal of mining leases in gujarat came for consideration in this case before pg no 717 the court. at page 219 of the reports, it was stated: "the rules dealt with a situation prior to the coming into operation of 1980 act. '1980 act' was an act in recognition of the awareness that deforestation and ecological imbalances as a result of deforestation have become social menaces and further deforestation and ecological imbalances should be prevented. that was the primary purpose writ large in the act of 1980. therefore, the concept that power coupled with the duty enjoined upon the respondents to renew the lease stands eroded by the mandate of the legislation as manifest in 1980 act in the facts and circumstances of these cases. the primary duty was to the community and that duty took precedence, in our opinion, in these cases. the obligation to the societymust predominate over the obligation to the individuals." again in paragraph 19, this court observed: "in the instant appeals the situation is entirely different. the appellants are asking for a renewal of the quarry leases. it will lead to further deforestation or at least it will not help reclaiming back theareas where deforestations 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 ram modi, [ 1985] 3 scc 643 cannot be made applicable to support the appellants' demands in these cases because the facts are entirely different here. the primary purpose of the act which must subserve the interpretation in order to implement the act is to prevent further deforestation. the central government has not granted approval. ......" the ratio of the decision of this court in stare of rajasthan v. hari shankar rajindra pal, [l965] 3 scr 402 has obviously no application to the facts of this case. in banshi ram modi' case (supra) what was being considered was extension of the leases for another mineral which was found while exploitation, under the existing mining lease was undertaken. we agree with the view expressed by brother mukharji that the conservation act of 1980 applies to renewal as well and even if there was a provision for renewal in the lease agreement on exercise of lessee's option, the requirements of 1980 act had to be satisfied before 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 718 these cases the request for renewal was rejected. on the plea that the state had no right to reject the request for first renewal, the aggrieved lessees went before different

courts and obtained decrees or interim orders. we have already pointed out that in the order of 12th march, 1985, this court vacated such orders or decrees regarding all c category and some b category mines. it is clear from the directions contained in the order of 12th march, 1985, as also the ratio of the judgment in the ambica quarry works case (supra) that even if there has been an order of the court and no challenge is raised against such order this court could invoke its jurisdiction to nullify the direction or order and if any order, direction or decree has been passedignoring the provisions of the conservation act of 1980 the same would not be binding. we have been given to understand during the hearing of these cases that appeals have been preferred by the state of uttar pradesh where decrees have been passed directing renewal. when this court left the litigations to be continued, the conservation act of 1980 had not been noticed. therefore, liberty had been granted to agitate the disputes arising out of refusal to renew. in view of the provisions in the conservation act and the opinion expressed in ambica quarry works case (supra), with which we are in agreement, the decrees also would not be sustainable where prior approval of the central government has not been obtained. we agree with brother mukharji that whether it is a case of first grant or renewal following exercise of option by the lessee, the compliance of section 2 of the conservation act is necessary as a condition precedent. no useful purpose would be served by allowing the litigations to be continued in different courts, particularly when keeping the broad interest of society with reference to ecology and environment, we have come to the conclusion that mining in this area has to be stopped. notice has to be taken of the situation that the entire dispute has been before this court and the scope of the dispute is comprehensive. all parties are before this court. parties have also been heard on various aspects at different times. an order made by this court to nullify the decrees in such circumstances would not be violative of the principles of natural justice. apart from the notice contained in the court's order of 19th october, 1987, where it had been specifically stated that this court was of the view that mining in the doon valley area should be totally stopped. the position was also made clear to different parties in course of the hearing which continued for several weeks. we, therefore, hold that if any decree or order has already been obtained from any court relating to renewal of these ieases, the same shall stand vacated and similarly any appeal or other proceeding taken to obtain a renewal or against orders/decrees renewal shall also become nonest. pg no 719 we shall now turn our attention to the consideration as to whether mining should be totally stopped outright or in a

phrased manner. in our order dated 14th october, 1987, we had categorically indicated that mining in this area has to be stopped but instead of outright closing down total mining operations wewere of the view that mining activity may have to be permitted to the extent it was necessary in the interest of defence of the country as also by way of the safe-guarding of the foreign exchange position. pursuant to our direction in the said order (air 1987 sc 2426) the union of lndia filed an affidavit on 18th november, 1987, through dr. s. maudgal, director in the department ofenvironment, forests & wildlife in the ministry of environment and forests. that affidavit inter alia stated: "3.l the ministry of defence do not require any highgrade low silica limestone over and above what is needed for production of steel. therefore, the limestone requirement of the defence ministry are fully covered in the requirement of the steel industry in the country. 3.2 high-grade limestone with low silica content is required in steel production only in the units which are operating on the ld process. as of today, only bhilai, rourkela, bokaro and tisco, jarnshedpur are operating on the ld process. the requirement of low-silica limestone in 198687 as provided by the steel authority of lndia ltd. for its plants at 2,20,550 tonnes with the break-up given in tablei. 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 steel plant & iisco, burnpur plant is also expected to switch over to the ld process by 1994-95. the requirement of low silica limestone for the steel plants as projected in the report of the steel and mines, department of steel in march, 1987 is given 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 has been identified at lambidhar. barkot (distt. dehradun) in u.p.. gotan and jaisalmer in rajasthan, solanin himachal pradesh and khorram in meghalaya. the deposits outside u.p. have not, however, been prospected/explored in detail. detailed exploration of these deposits is necessary for the preparation of mining and environmental manageement plants before definite assessment of the extent of production of ld-grade from these deposits can be determined. jaisalmer being the most favoured deposit should be explored on pg no 721 priority. all the same. prima facie availability pattern of the ld-grade limestone from various deposits is in given in table 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 quarries are operating shows that a total of 1,73.768 tonnes has been supplied to the steel plants from dehradun-mussoorie area during 1986 which is approximately 25% of their limestone production. 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 mussoorie limestone belt also meets the requirement of our sugar industry, and paper. the following table indicates the approximate short and long term requirements of industries that 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 are traditionally dependent on limestone from dehradun for use in the process of manufacture. sugar industry in our state is a key agriculture based industry on which the economy of farmers of nearly 40 out of 57 districts depends. the limestone needs of this industry are, therefore, important for its survival. the chemical and paper industry further set up in western and northern u.p. with large investments, is also dependent upon dehradun limestone for their existence. mini cement plants located in western u.p. and in the doon valley (m/s venus cements) utilise offgrade limestone generated from the mines consequent to their operations. this, in effect, helps with the control of pollution that would have occurred from mine wastes if dumped or allowed to roll into depressions, valleys or stream beds; it also helps with conservationand maximum utilisation of the resource mined. '' adverting to the question as to whether mining activity in this area should be permitted to a limited extent, keeping the principles of ecology in view, the affidavit stated: "the union government has all along taken the stand that the doon valley is a fragile eco-system and is endowed by nature with perennial water streams, lush green forests and scenic beauty. all these factors have contributed to mussoorie being called the queen of hill stations and dehradun becoming an important place of tourist attraction as well as centre of education. the unscientific and uncontrolled limestone quarrying operations spread over the entire 40 km. belt on the mussoorie slopes however, endangered the delicate ecological balance resulting in ugly scars, excessive debris flow, drying up of water streams and perennial streams and rivulets and deforestation. taking note of the disastrous ecological consequences, pg no 723 the technical group constituted by the state and union governments since 1979 have consistently recommended only controlled mining in this area. the technical expert committee constituted by the honourable supreme court under

the chairmanship of shri d.n. bhargav examined all the operating quarries and came to the conclusion that all of them, to a larger of smaller extent, have violated the statutory provisions relating to mines. conditions in some of the mines were considered to be so bad that 20 of these were closed immediately in 1983. the committee, under the chairmanship of shri d. bandy-opadhyaya examined the mining and environmental management plans prepared by parties came to the unanimous conclusions that none of there plans are satisfactory. therefore, the bandyopadhyaya committee strongly recommended that none of the mines reviewed by it should be allowed to operate. it is relevant to reiterate here that closure of these mines has been recommended by the bandyopadhyaya committee not just on ground that they are located within the mussoorie city limits but after due consideration of the environmentai implications, status of preparedness of mining and environmental management plans and capability of the lessee to under-take mining operations on a scientific basis so that the damage to life and property, apart from environmental degradation. is avoided. none of the mines already closed is, therefore, fit to be considered operation. it is the view of government that to prevent any further degradation of the ecology and environment in the area and to allow for rejuvenation. it is essential that limestone mining operations, if they are to continue, should be on a limited scale and completely regulated to ensure that they are done in an entirely scientific manner consistent with the imperatives of preservation and restoration of the ecology and environment in this area. in order to meet essential requirements of steel industry, it would be necessary to maintain supply of low silica limestone from the dehradun mussoorie area. the state government of u.p. also has brought to our notice that certain other vital industrial and agricultural operations are dependent on limestone supplies from this area. in view of these considerations, it is felt that limestone mining on a limited scale may have to continue under strict regulation." pg no 724 this affidavit of dr. maudgal was not accepted by this court as it did not fulfil the requirement of the directions given in the court's order dated 19th october, 1987.then came another affidavit dated 24th february, 1988, by shri t.n. seshan, secretary in the ministry of environment and forests. this affidavit indicated that 90 per cent of the low silica high grade limestone was supplied by the rajasthan mines to the steel authority of india ltd. and 10 per cent of supplies came from the dehradun quarries. tata iron and steel company at jamshedpur, however, received a sizeable supply from the dehradun quarries. according to

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for

the

this affidavit, in 1986, the total production of high grade limestone in the dehradun-mussoorie area was 6.02 lakh tonnes. the affidavit indicated availability of such limestone in several other parts of the country. in regard to import of limestone and foreign exchange components, this affidavit indicated that as low silica high grade limestone is available from indigenous sources, import thereof could be dispensed with. in paragraph 5 of this affidavit, the question as to whether keeping in view the principles of ecology, mining activity in the dehradun-mussoorie area could be permitted to a limited extent, perhaps as pleaded in the earlier affidavit, has been dealt with. this affidavit stated| "5.2 now that high grade low silica limestone is also available in the extensive deposits covering large areas in the state of rajasthan which can meet the requirements of the steel industry which also includes defence requirements, there is justification for disconstinuance of the existing mining operation in the dehradun-mussoorie area and, in fact, complete closure of the said mines in this area." it is fact that while in the first affidavit, controlled and limited mining was suggested, in the second affidavit filed after a gap of about three months total stoppage of mining activity in this area has been stressed. counsel appearing on behalf of the state of uttar pradesh and upsmdc offered serious criticism against this changed stance and we were called upon to reject the second affidavit also. we do not find any justification in this plea for rejection of the affidavit. this court in its order of 19th october, 1987, had in clear terms indicated what aspects were exactly required to be answered by the affidavit of the union of india. since the first affidavit did not answer those points it was rejected and a further affidavit was directed to be filed. there can be no two opinions that both the affidavits pleaded for banning of mining; but the first affidavit suggested controlled and limited mining inview pg no 725 of the demands while the second affidavit, on consideration of the fact that alternate sources were available for supply of the limestone of the desired quality, asked for total stoppage of mining operations. as we have already indicated in another part of this judgment. awareness of the environmental problem has been gradually increasing though in the first affidavit, the union of india had expressed its view that limited and controlled mining could be permitted, on a reconsideration of the matter and taking into account the relevant aspects for reaching its conclusion, the union of india has come to adopt the view that there should be no mining in this area. we can well gather why the upsmdc would feel aggrieved by the second affidavit but so far as the state of uttar pradesh is

and

concerned, we do not see any justification in its critical stand against the second affidavit on the plea that the stand accepted in the first affidavit has been given a go by. maintenance of the environment and ecological balance is the obligation of the state and the central governments and unless there was any real objection to the opinion of the union of india as to continuing or closing down of mining activity, it should have been taken in the proper light and the little modified stand adopted in the second affidavit should have been welcomed. in another part of our judgment we have found that the entire area is more or less forest. many portions are reserved while others constitute forest land. it is indisputable that mining operationsare detrimental to forest growth. in fact the union government in the ministry of environment and forest have on 31st may, 1988, informed the secretaries of all the state governments in the department of forest that even mining area below the forests would affect the forests. the variation of the stand in the second affidavit that mining activity should be totally stopped is certainly an improvement on the stand taken in the first affidavit but we do not think there is any inconsistency in the stand inasmuch as the justification in support of the plea of total closure has been indicated. even before any of these two affidavits was filed this court in its order of 19th of october, 1987, had clearly indicated that mining activity in this area should he totally stopped. the view expressed in the second affidavit is in accord with what this court has stated. on assessment of the factual position, we do not think there is any substance in the argument advanced on behalf of the uttar pradesh government, upsmdc or any other mine owner which would justify our rejecting the second affidavit. we would pg no 726 like to add that this is not a case of a somersault as contended on behalf of the state government of 'uttar pradesh nor has it been occasioned by any illegitimate consideration. the point which still remains to be dealt with is whether mining activity should be totally stopped immediately. it is the accepted-position by all parties that low silica content limestone is necessary for manufacturing class steel. the earlier ld process is being abandoned by new factories and even some are switching over to new methods but for quite some time there would be demand for low cilica content limestone for manufacture of steel by the ld process. the alternate source which has been indicated in these two affidavits of the union of india is not readily available to the fullest extent. the gotan-jaisalmer belt

has to be worked out in full swing and that would take some time. the main difficulty for the jaisalmer production to reach the consumers is the location of the mining area. it has no broad-gauge rail connection and admittedly location is in the interior. the consumer would immediately face transport difficulty until there is conversion of the railway track to broad-gauge and surface transport facility improves. even if these facilities are made available, the distant location is bound to reflect itself in the cost factor. the question of foreign exchange component does not seem to be very material as the required type of mineral is indigenously available and import may not be necessary when the production in rajasthan area increases. the fact that in the recent past the tata iron and steel company has made some import has indeed no real bearing on the question as that import has been necessitated on account of the closure of the mines in this area and non-availability of the material from the alternate indigenous source. we have already recorded a finding elsewhere in this judgment that most of these mines are either within reserved forests or in forest lands, as covered by the u.p. amendment of the forest act. to these areas the forest conservation act applies and to allow mining in these areas even under strictest control as a permanent feature would not only be violative of the provisions of forest (conservation) act but would be detrimental to restoration of the forest growth in a natural way in this area. once the importance of forests is realised and as a matter of national policy and in the interests of the community, preservation of forests is accepted as the goal, nothing which would detract from that pg no 727 end should be permitted. in such circumstances we reiterate our conclusion that mining in this area has to be totally stopped. there was some controversy as to whether some of the mines were located in the reserved forests. we have not made any attempt to resolve that controversy here as, in our opinion, whether the mines are within the reserved forests or, in other forest area, the provisions of the conservation act apply. we do not agree with the submission advanced by mr. nariman for the intervener, mr. sibbal for the uttar pradesh government, mr. yogeshwar prasad for the upsmdc, dr. singhvi for some of the mine owners and similar contentions advanced by other counsel of different mine lessees that there would be a total stalemate in the manufacture of drugs and sugar, as also steel, in case mining activity is stopped; yet we would accept this position that these would be hard-hit if mining activity in this area is stopped all of a sudden. with the pressing demand in the market and discovery of

the

useful limestone deposits in other parts of the country apart from what has been indicated in the second affidavit of the union of india the trade would adjust itself as every economic activity does. we are, however, of the view that the position should be monitored and the switch-over from the present position to a total ban should be spread over a period and not be sudden. we have already taken note of the fact that for different reasons several mines are closed down and only six, as indicated in another part of this judgment. are working. now that we have found that some mining activity for some more time in this area may be permitted under strict regulation, we have now to decide which of the mines may be permitted to work and for what period as also subject to what conditions. majority of the mining leases was granted in 1962. the lease period being 20 years. the original period of lease has expired in all such cases where the leases commenced from 1962. but following are the mines where the original grant is still valid and their date of expiry is separately indicated : 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 which are also operating under decrees/orders of courts as per the details 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 the lessor government refused to renew them. the lessees have obtained orders from the court and are working continuously. in view of what we have held, the orders or decrees become inoperative and are deemed to have been set aside by this judgment. mining in these four leases must stop within one month from today. apart from the three working mines specified above where the original lease period is yet to expire, there are six

other a category mines with valid leases which are not working now as per the particulars below : ______________________________________________________________________ ____ __ s.no. name of the lessee lease no. valid up-to ______________________________________________________________________ ____ __ 1. new era minerals 4 25.2.1990 2. u. p. minerals 8 10.4.1994 3. rajgiri minerals 9 24.11.1992 4. anand brothers 67 15.2.1992 5. uttrakhand minerals98 12. 12 1989 6. vijayashree minerals99 20.3. 1990 ______________________________________________________________________ ____ _ pg no 729 these mines are not operating at present for one reason or the other. on the 12th of may, 1985, the mines within the municipal limits of mussoorie were directed to close down until they were cleared by the bandyopadhyay committee and that committee did not clear any. so far as the first five mines are concerned, they are either within the municipal limits or within the forest area. we do not think it appropriate to allow them to operate until their lease periods lapse particularly when we have reached the conclusion that mining operation in this area should close down. an exception has to be made in the case of the mine being lease no. 99 where the lease period has to expire in 1990. the lease is of 15 acres of land and another 100 acres are from some private source. mr. jain appearing for the lessee had undertaken before us that over the 100 acres, there would be no mining operation and the lessee would immediately restore vegetation over the area and full forest growth will be available in regard to the 100 acres. the mine is neither within forest nor municipal area and minerals from this area would be removed not through the city limits. he has also assured us that immediately after the lease period is over, which would be about a year and half from now, the 15 acres would also be subject to real forestation by the lessee. he has agreed to file a undertaking in this court which we direct him to, do within four weeks hence. on the undertaking being filed this mine, as a special case, shall be permitted to operate until the expiry of the lease. the committee appointed under this order shall supervise the reafforestatian programme undertaken by the lessee of lease no. 99 and in case it is of the view 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. pramod dayal appearing for the lessee in respect of lease no. 67 had tried to make out specific cases. during the hearing of these cases we had felt impressed by what had been placed before us but since we have now taken a decision to close down mining activity in the area we do not think fresh mining operations where mining has already been stoppedwhatever be the ground-should on principle be permitted. to make out a special case for a few lesses from amongst similarly placed mine owners of small differences for being permitted to work out stopped mines, in our opinion, would not be appropriate at this stage. on the other hand to treat them all as a class and subject them to a common order would be just and proper. we reiterate that the exception in the case of lease no 99 is for testing the genuineness of the representation of the lessee and in consideration of the smallness of the area. pg no 730 we would like to notice at this place the contention of dr. singvi that a category mine owners should not suffer on account of this court's order and similar treatment to all a category mine owners should be given. there can be no two opinions about the court extending equal treatment to all equally placed parties before it. it is, however, not correct that the a category mines which are operating and those that are closed down are similarly situate. in fact, when the court made the earlier order asking for closing down, the distinction was noticed and on that basis orders involving different treatments had been made. it may be that we have not found the distinction to be a tenable one at a later stage. but in the peculiar situation emerging in this case we do not accept the submission of dr. singhvi that those a category mines which had stopped working should be permitted to run. there are certain situations where in the interest of general benefit to the community, interests of individual citizens may be over-looked. we are satisfied that this situation attracts that principle to operate and even if some of the mine owners are worse affected than some others, permission to reopen the mines located in the forests and within municipal limits cannot be granted with a view to compensating them for being placed at par with the less affected group. it is perhaps necessary to indicate why these three ongoing mines whose original lease period has not lapsed are being permitted to continue mining. we have already taken note of the position that upsmdc is a public sector undertaking of the state of uttar pradesh and there has been a huge investment by the state in this establishment. it gives sizeable output. though certain defects have been pointed out in its activities by the working group, we are

of the opinion that if appropriately controlled, mining activities can be regulated and simultaneously reafforestation can be activised. so far as r.k. oberai is concerned, the working group has found least objection against it. the lease of punjab lime & limestone company shall have life of a little more than one year. all these three mines are running their initial lease period. no additional exercises are necessary to make them operative. if any of these mines is closed down there would be problem of unemployment. in regard to the mines closed for more than three years, we do not think the labour is sitting idle and the mine owner is paying them. they must have got employed elsewhere of they have lost their service and have taken to alternate engagement. in our opinion, therefore, allowing these three on-going mines to operate for their initial period of lease is the most appropriate direction that can be given during the switch over from the present position to one of complete closing down of mining operation. we, therefore permit these three mines to continue mining pg no 731 operation subject to compliance with all legal requirements and the additional conditions whichwe shall hereafter indicate. the next aspect to be considered is as to under what conditions mining operation by these three lessees should be permitted. the objections raised by the working group against the upsmdc are germane and legitimate. we shall require this lessee to meet all these objections within a period of four months from now. if by the end of december, 1988, the lessee fails to comply with this direction to the satisfaction of the monitoring committee which is being setup by this judgment, the monitoring committee is empowered to direct closing down of the mine subject to any other direction of this court. so far as the other two mines are concerned, whatever objections have been raised by the working committee shall also be removed within the same time limit and on failure of compliance, they too shall be visited with the same consequences. there is no dispute that continuance of mining operations affects environment and ecology adversely and at the same time creates a prejudicial situation against conservation of forests. it is, therefore, necessary that each of these working mines shall have to work with an undertaking given to the monitoring committee that all care and attention shall be bestowed to preserve ecological and environmental balance while carrying on mining operations. 25% of the gross profits of these three mines shall be credited to the fund incharge of the monitoring committee in such manner as the committee may direct and the committee shall ensure maintenance of ecology and environment as also reafforestation in the area of mining by expending money

from the fund. in the event of expenses exceeding the contribution by these three respective lessees, the committee shall report to this court for directions. on the expiry of their respective leases, they shall not be entitled to carry mining operation and by operation of this judgment shall have to wind up. no application for renewal shall be entertained from them. these three lessees as also any other lessee shall not be entitled to any compensation for closing down of the mines under orders of this court. in the order of 12th march, 1985, a three-judge bench of this court had indicated that the mine owners who had been displaced should be rehabilitated. there is no material on record if any alternate provision has been made either by the state of uttar pradesh or the union of india. on-going leases have been terminated under orders of this court pg no 732 without provision for compensation. indisputably displacement has been suffered by these lessees and the sudden displacement must have up-set their activities and brought about substantial inconvenience to them. the court has no other option but to close down the mining activity in the broad interests of the community. this, however, does not mean that the displaced mine owners should not be provided with alternative occupation. pious observation or even a direction in that regard may not be adequate, what is necessary is a time frame functioning if rehabilitation is to be made effective. it is therefore, necessary that a committee should be set up to over-see the rehabilitation of the displaced mine owners. the uttar pradesh government, as apprehended by many of these mine owners, by itself may not be able to meet the requirements of the situation. it may be that all the displaced mine owners may not find suitable placement within the state of uttar pradesh. it is, therefore, necessary to associate of some other states in the programme. unless a high powered committee is set up wherein union of india is also represented, the committee to be constituted may not be effective and there may be lack of coordination. there is material that lime stone quarries are available in rajasthan and gujarat. it is, therefore, necessary that representatives of these state governments are also on the committee. we accordingly direct a committee to be set up with representatives of the union of india, the state governments of uttar pradesh, rajasthan and gujarat. while effecting rehabilitation by giving alternate mining sites, ecology and environment will have to be considered. it is, therefore, necessary that that such committee the ministry of environment should also be represented. apart from them there should at least be two experts. we direct constitution of a rehabilitation committee with the following 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 of uttar pradesh. rajasthan and gujarat-members. mr. anil aparwal of centre for science and environment, g-92, kalkaji, new delhi, and mr. subrata sinha, senior deputy director general, geological survey of india, 27, jawaharlal nehru road, calcutta, are nominated as the expert members of this committee. the committee shall have an officer of the grade of under secretary to the government of india as its secretary and the minimum skelton staff for carrying its pg no 733 activities. for convenience, the office may be located for the time being in the ministry of steel and mines at new delhi. the ministry of environment and forest is directed to deposit a sum of rs.3 lacs in the registry of this court within four weeks from today to be transferred to the committee for the purpose of the committee subject to appropriate accounts to be rendered to the ministry concerned. the committee is directed to make an initial report on the problem and the manner it proposes to tackle it within eight weeks from today. on the basis of such report, further directions shall be made. the laws in force shall have to be kept in view and the above-named members are directed to extend full cooperation with zeal and a sense of under-standing of the problems so that rehabilitation can be done as a part of the environmental programme. the court is of the view that a monitoring committee is necessary for reafforestation of the areas as also for overseeing the running of the three mines. the state- of uttar pradesh has already undertaken a reafforestation programme in the area. the record, however, does not indicate much of improvement yet. we have taken note of the position that the uttar pradesh government has a master plan for the doon valley spread over a quarter of century beginningwith 1986. since the court has stepped in to close down mining operation in this area except to a very limited extent, we are of the view that a high powered committee should be set up to look after reafforestation, mining, activities and all other aspects necessary to bring about natural normalcy in the doon valley. mr. k.p. geetakrishnan, a member of the indian administrative service, now secretary, forest, wild life and environment in the central government, in our opinion, should be made the chairman of the monitoring committee. mr. d. bandy-opadhyay, a member of the indian administrative service. now secretary, department of revenue in the central government. who, had headed a committee set up by this court is aware of the problems of this area. we are of the opinion that he should be made a

member of the monitoring committee. the head of the indian defence academy, the head of the indian forest lnstitute, the head ot the establishment of ongc (all located at dehradun), the secretary, forest department of the uttar pradesh and the chairmen of the mussoorie and dehradun municipalities, and two public spirited citizens-one belonging to mussoorie and another to dehradun area are to be the members of this committee. the two non-official members shall be co-opted by the committee. the committee shall have its office at dehradun in the accommodation to be provided either by the ongc or the forest staff college. the pg no 734 government of uttar pradesh is directed to deposit a sum of rs.5 lacs for creating the initial fund of the monitoring committee. the amount should be deposited in the registry of this court within four weeks from now. it shall be open to the monitoring committee to appoint a skelton staff with the suitable officers to run the establishment. we hope and expect that the concerned governments will permit their officers to undertake the respective assignments in public interest and we expect the officers also to extend their whole-hearted support to work out the trust reposed in them. the monitoring committee shall have powersto over-see reafforestation in the area by the state of uttar pradesh and undertake an appropriate scheme of reafforestation. it shall ensure that mining activity by the three on-going mines is carried out in accordancewith law and with appropriate safeguards from environment and ecology point of view. it shall also ensure that the scree is removedfrom the natural streams and the flow of water is maintained. after the committee makes its initial report within eight weeks from now to the registry further directions as necessary shall be given. it is not our intention to continue control over these matters. once this court is satisfied that the committees are operating on the right lines we shall consider whether it is any longer necessary for the court to supervise their activity. before we part with the case, we must indicate our appreciation of services rendered by the petitioners and their counsel to the cause, the cooperation and understanding extended by the mine owners, their counsel, the members of the several committees constituted by the court but for which these proceedings could not have come to terminate in the present manner. the records of the case have become unusually bulky and but for the continued assistance of mr. pramod dayal, a member of the bar of this court, it would indeed have been difficult for us as also parties and their advocates to handle the matter with ease. mr. parmod dayal deserves our commendation for the labour he has 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 of rs.5,000 (rupees five thousand only) for the services rendered. we direct the union of india to deposit the said amount with the registry of this court within two weeks from now. this amount when deposited shall be paid to mr. parmod dayal. pg no 735 the writ petitions are disposed of. there would be no order for a costs. we direct that the reports of the two committees, as and when received, shall be placed before this 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 scc (1) 471 1988 scr (2) 530 jt 1988 (1) 69

act: constitution of india, 1950: articles 48a and 51a-state to protect and improve environment-fundamental duty of every citizen to improve natural environment. environmental law water (prevention and control of pollution) act, 1974 and environment (protection) act, 1986:

'environment'-discharge of effluents from tannery into the river ganga-necessity to establish primary treatment plants-closure of tanneries directed on failure to complylife, health and ecology have great importance. practice and procedure: court can issue appropriate directions if it finds public nuisance being committed and statutory authorities not taking adequate steps to rectify the grievance.

headnote: the petitioner, an active social worker, filed a petition before this court complaining that neither the government nor the people were giving adequate attention to stop the pollution of the river ganga and it was, therefore, necessary to take steps for the purpose of protecting the cleanliness of the stream in the river ganga which was in fact the life sustainer of a large part of the northern india, and sought the issue of a writ/order/direction in the nature of mandamus to the respondents other than respondents nos. 1 and 7 to 9 restraining them from letting out the trade effluents into the river ganga till such time they put necessary treatment plants for treating the trade effluents in order to arrest the pollution of water in the said river. this court directed issue of notice under order 1 rule 8 of the 280 code of civil procedure treating the case as a representative action by publishing the gist of the petition in the newspapers in circulation in northern india and calling upon industrialists and the municipal corporations and town municipal councils having jurisdiction over the areas through which the river ganga flows to appear before the court to show cause as to why direction should not be issued as prayed for by the petitioner asking them not to allow trade effluents and sewage into theriver ganga without appropriately treating them before discharging them into the river. pursuant to the aforesaid notice a large number of industrialists and legal bodies entered appearance. some filed counter affidavits ex-plaining the steps taken by them for treating trade effluents before discharging them into the river. the case against the tanneries at jajmau, kanpur, was first taken up by the court for consideration. forty three respondents admitted in their counter affidavits that the tanneries discharged their trade effluents into the sewage nallah which led to the municipal sewage plant before they were thrown into the river ganga. the court was informed that six of the tanneries had

already set up and fourteen were engaged in construction of primary treatment plants, and some others pleaded for time to do so. it was submitted on behalf of the respondents that it would not be possible for them to have secondary system for treating waste water in view of the enormous expenditure involved, which the tanneries would not be able to meet. some of the tanneries neither appeared nor were represented by counsel in this court. issuing interim directions, this court, ^ held: 1.1 article 48-a of the constitution provides that the state shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. article 51-a of the constitution imposes as one of the fundamental duties on every citizen the duty to protect and improve the natural environment including forests, lakes, rivers and wild life and to have campassion for living creatures. [285c-d] realising the importance of the prevention and control of pollution of water for human existence, parliament passed the water (prevention and control of pollution) act, 1974, to provide for the 281 prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment, with a view to carrying out the purposes aforesaid of boards for the prevention and control of water pollution, for conferring on and assigning to such boards powersand functions relating thereto and for matters connected therewith sections 16 and 17 of the act describes the functions of the central and the state board. the act was adopted by the state of uttar pradesh. in addition, parliament also passed the environmental (prevention) act, 1986 which came into effect from november, 1986 throughout india. [288b-d; 289a, f] 1.2 notwithstanding the comprehensive provisions contained in the act of 1974, no effective steps appear to have been taken by the state board so far to prevent the discharge of effluents of the jajmau near kanpur to the river ganga. the fact that such effluents are being first discharged into the municipal sewerage does not absolve the tanneries from being proceeded against under the provisions of the law in force since ultimately the effluents reach the river ganga from the sewerage system of the municipality. not much has been done even under the act of 1986 by the central government to stop the grave public nuisance caused by the tanneries at jajmau, kanpur. [289-e; 290c] 1.3 there is no doubt that the discharge of the trade effluents from the tanneries into the river ganga has been causing considerable damage to the life of the people who use the water of the river and also to the aquatic life in

the river. the effluents discharged from a tannery is 10 times noxious when compared with the domestic sewage which flows into the river from any urban area on its banks. the tanneries at jajmau, kanpur cannot be allowed to continue to carry on the industrial activity unless they take steps to establish primary treatment plant. [298e-f] no doubt it may not be possible for the tanneries to establish immediately the secondary system plant in view of the large expenses involved, but having regard to the adverse effect the effluents are having on the river water, the tanneries at jajmau, kanpur, should at least set up primary treatment plants, which is the minimum that the tanneries should do in the circumstances of the case. the financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery, which cannot set up a primary treatment plant, cannot be permitted to continue to be in existence for the adverse 282 effect on the public at large which is likely to ensue by the discharging of the trade effluents from the tannery to the river ganga would be immense and it will outweigh any inconvenience that may be caused to the management and the labour employed by it on account of its closure. moreover, the tanneries involved in this case are not taken by surprise. for several years they are being asked to take necessary steps to prevent the flow of untreated water from their factories into the river. some of them have already complied with the demand. [298c-e] 1.4 in cases of this nature this court may issue appropriate directions if it finds that the public nuisance or other wrongful act affecting or likely to affect public is being committed and the statutory authorities which are charged with the duty to prevent it are not taking adequate steps to rectify the grivevance. for every breach of right there should be a remedy. [298f-g] it is unfortunate that a number of tanneries at jajmau even though they are aware of these proceedings have not cared even to enter appearance in this court to express their willingness to take appropriate steps to establish the pretreatment plants. so far as they are concerned, they are directed to stop running of their tanneries and also not to let out trade effluents either directly or indirectly into the river ganga without subjecting the trade effluents to a pretreatment process by setting up primary treatment plants as approved by the state board with effect from october 1, 1987. time granted till 31.3.1988 to other tanneries who are members of the hindustan chambers of commerce and the other tanneries to establish primary treatment plants within six

months. if any of these tanneries does not set up a primary treatment plant within 31.3.1988 such a tannery will stop business with effect from 1.4.1988. [298g-h; 299d, g-h; 300a] such of those tanneries who have already put up primary treatment plants may continue running provided they keep the plants in sound working order.[299fl the central government, the uttar pradesh board, established under the provisions of the water (prevention and control of pollution) act, 1974 and the district magistrate, kanpur are directed to enforce this order. [30ob l per singh, j: (supplementing) the pollution of the river ganga is affecting the life, health and 283 ecology of the indo-gangetic plain. the (government as well as parliament both have taken a number of steps to control the water pollution, but nothing substantial has been achieved. no law or authority can succeed in removing the pollution unless the people cooperate. it is the sacred duty of all those who reside or carry on business around river ganga to ensurethe purity of ganga. tanneries at jajmau area near kanpur have been polluting the ganga in a big way. though notices were issued many industrialists have not bothered either to respond to the notice or to take elementary steps for the treatment of industrial effluent before discharging the same into the river. those tanneries which have failed to take minimum steps required for the primary treatment of industrial effluent are directed to be closed. no doubt closure of tanneries may bring unemployment, loss of revenue, but life, health and ecology have greater importance to the people. [301g-h; 302a-b]

the

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.p singh 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, krishan kumar, 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 the respondents. 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 litigation the 284 petitioner who is an active social worker has filed this petition inter alia for the issue of a writ/order/direction in the nature of mandamus to the respondents other than respondents 1, and 7 to 9 restraining them from letting out the trade effluents into the river ganga till such time they put up necessary treatment plants for treating the trade effluents in order to arrest the pollution of water in the said river. respondent 1 is the union of india, respondent 7 is the chairman of the central board for prevention and control of pollution, respondent 8 is the chairman, uttar pradesh pollution control board and respondent 9 is the indian standards institute. water is the most important of the elements of nature. river valleys are the credles of civilization from beginning of the world. aryan civilization grew around the towns and villages on the banks of the river ganga. varanasi which is one of the cities on the banks of the river ganga is considered to be one of the oldest human settlements in the world. it is the popular belief that the river ganga is the purifier of all but we are now led to the situation that action has to be taken to prevent the pollution of the water of the river ganga since we have reached a stage that any further pollution of the river water is likely to lead to a catastrophe. there are today large towns inhabited by millions of people on the banks of the river ganga. there are also large industries on its banks. sewage of the towns and cities on the banks of the river and the trade effluents of the factories and other industries are continuously being discharged into the river. it is the complaint of the petitioner that neither the government nor the people are giving adequate attention to stop the pollution of the river ganga. steps have, therefore, to be taken for the purpose of protecting the cleanliness of the stream in the river ganga, which is in fact the life sustainer of a large part of the northern india. when this petition came up for preliminary hearing, the court directed the issue of notice under order 1 rule 8 of the code of civil procedure treating this case as a representative action by publishing the gist of the petition in the newspapers in circulation in northern india and calling upon all the industrialists and the municipal corporations and the town municipal councils having jurisdiction over the areas through which the river ganga

flows to appear before the court and to show cause as to why directions should not be issued to them as prayed by the petitioner asking them not to allow the trade effluents and the sewage into the river ganga without appropriately treating them before discharging them into the river. pursuant to the said notice a large number of industrialists and local bodies have entered 285 appearance before the court. some of them have filed counteraffidavits explaining the steps taken by them for treating the trade effluents before discharging t-hem into the river. when the above case came up for consideration before the court on the last date of hearing we directed that the case against the tanneries at jajmau area near kanpur would be taken up for hearing first. respondents 14 to 87 and 89 are the tanneries near kanpur. of them respondents 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 and 89 are represented by counsel. the remaining tanneries did not appear before the court at the time of the hearing nor were they represented by any counsel. before proceeding to consider the facts of this case it is necessary to state a few words about the importance of and need for protecting our environment. article 48-a of the constitution provides that the state shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. article 51-a of the constitution imposes as one of the fundamental duties on every citizen the duty to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. the proclamation adopted by the united nations conference on the human environment which took place at stockholm from 5th to 16th of june, 1972 and in which the indian delegation led by the 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 wellbeing 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 environ287 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 control of pollution of water for human existence parliament has passed 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 pollution and the maintaining or restoring of wholesomeness of water, for the establishment, with a view to carrying out the purposes aforesaid, of boards for the prevention and control of water pollution, for conferring on and assigning to such boards powers and functions relating thereto and for matters connected therewith. the act was passedpursuant to resolutions passed by all the houses of legislatures of the states of assam, bihar, gujarat, haryana, himachal pradesh, jammu and kashmir, karnataka, kerala, madhya pradesh, rajasthan, tripura and west bengal under clause (1) of article 252 of the constitution to the effect that the prevention and control of water pollution should be regulated in those states by parliamentary legislation. the act has been since adopted by the state of uttar pradesh also by resolutions passed in that behalf by the houses of legislature of the said state in the year 1975 (vide notification no. 897/ix-3-l00-74 dated 3.2.1975). section 24 of the act prohibits the use of any stream or well for disposal of polluting matter etc. it provides that subject to the provisions of the said section no person shall knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the state board to enter whether directly or indirectly into any stream or well or no person shall knowingly cause or permit to enter into any stream any other matter which may tend either directly or in combination with similar matters to impede the proper flow of the water of the stream in a manner leading or likely to lead to a substantial aggravation of pollution due to other causes or of its consequences. the expression stream is defined by section 2(j) of the act as including river, water course whether flowing or for the time being dry, inland water whether natural or artificial, sub-terranean waters,

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, 289 specify in that behalf. under the act it is permissible to establish a central board and the state boards. the functions of the central board and the state boards are described in section 16 and 17 respectively. one of the functions of the state board is to inspect sewage or trade effluents, works and plants for the treatment of sewage and trade effluents, and to review plans, specifications or other data relating to plants set up for the treatment of water, works for the purification and the system for the disposal of sewage or trade effluents. 'trade effluent' includes any liquid, gaseous or solid substance which is discharged from any premises used for carrying on any trade or industry, other than domestic sewage. the state board is also entrusted with the work of laying downstandards of treatment of sewage and trade effluents to be discharged into any particular stream taking into account the minimum fair weather dilution available in that stream and the tolerance limits of pollution permissible in the water of the stream, after the discharge of such effluents. the state board is also entrusted with the power of making application to courts for restraining apprehended pollution of water in streams or wells. notwithstanding the comprehensive provisions contained in the act no effective steps appear to have been taken by the state board so far to prevent the discharge of effluents of the jajmau near kanpur to the river ganga. the fact that such effluents are being first discharged into the municipal sewerage does not absolve the tanneries from being proceeded against under the provisions of the law in force since ultimately the effluents reach the river ganga from the sewerage system of the municipality. in addition to the above act, parliament has also passed the environment (protection) act, 1986 (29 of 1986) which has been brought into force throughout india with effect from november 19, 1986. section 3 of this act confers power on the central government to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. 'environment' includes water, air and land and the interrelationship which exists among and between water, air and land and human beings, other living creatures, plants, micro-organism and property. (vide section 2(a) of the environment (protection) act, 1986). under section 3(2)(iv) of the said act the central government may lay down standards for emission or discharge of environmental pollutants from various sources whatsoever. notwithstanding anything contained in any other law but subject to the

provisions of the environment (protection) act, 1986, the central government may under section s of the 290 act, in the exercise of its powers and performance of its functions under that act issue directions in writing to any person, officer or authority and such authority is bound to comply with such directions. the power to issue directions under the said section includes the power to direct the closure, prohibition or regulation of any industry, operation or process or stoppage or regulation of the supply of electricity or water or any other service. section 9 of the said act imposes a duty on every person to take steps to prevent or mitigate the environmental pollution. section 15 of the said act contains provisions relating to penalties that may be imposed for the contravention of any of the provisions of the said act or directions issued thereunder. it is to be noticed that not much has been done even under this act by the central government to stop the grave public nuisance caused by the tanneries at jajmau, kanpur. all the tanneries at jajmau, kanpur which were represented by counsel, except respondent nos. 87 and 89 have relied upon a common counter-affidavit filed by them and their case is argued by shri s.k. dholakia and shri mukul 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 that the discharge of the trade effluents from these tanneries into the river ganga has been causing considerable damage to the life of the people who use the water of the river ganga and also to the aquatic life in the river. the tanneries at jajmau in kanpur have themselves formed an association called jajmau tanners pollution control association with the objects among others: (1) to establish, equip and maintain laboratories, workshop, institutes, organisations and factories for conducting and carrying on p experiments and to provide funds for the main objects of the company. (2) to procure and import wherever necessary the chemicals etc. for the purpose of pollution control in tanning industries. (3) to set up and maintain common effluent treatment plant for member tanners in and around jajmau. (4) to make periodical charges on members for the effluent treatment based on the benefit he/it derives from time to time to meet the common expenses for maintenance, replacement incurred towards effluent treatment. 291 in the fiscal plan for setting up common effluent treatment plants for indian tanning industry-(march, 1986) prepared by the committee constituted by the directorate general 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 tannery effluents' prepared by s. rajamani, w. madavakrishna and g. thyagarajan of the central leather research institute, adyar, madras states that generally the wastewater from beam house process namely soaking, liming, deliming etc. are highly alkaline containing decomposing organic matter, hair, lime sulphide etc. and is nearly ten times as strong as domestic sewage and refers to the various methods 292 by which the effluents of the tanneries could be treated before their discharge into any river. they recommend four types of wastewater treatment technology sofar as the tanneries are concerned -1) segregation or mixing of suitable sectional waste water from different processes; (2) primary treatment; (3) secondary biological treatment; and

(4) disposal of solid wastes from the treatment system. the said monograph explains the work at the primary treatment unit 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 equalisationcum-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 said monograph 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, kanpur was made by the sub-committee on effluent disposal constituted by the development council forleather and leather goods industries along with the various tanneries situated in some other parts of india and in its report submitted in april, 1984, the sub-committee has observed in the 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 dis294 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 was also 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 'an action plan for prevention of pollution of the ganga' prepared by the department of environment, government of india 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 ist additional h 296 solicitor general of india placed before us a memorandum explaining 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 pretreatment 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 the hindustan chambers of commerce, of which 43 respondents are

members it is admitted that the tanneries discharge their trade effluents into the sewage nullah which leads to the municipal sewage plant before they are thrown into the river ganga. it is not disputed by any of the respondents that the water in the river ganga is being polluted grossly by the effluent discharged by the tanneries. we are informed that six of the tanneries have already set up the primary treatment plants for carrying out the pre-treatment of the effluent before it is discharged into the municipal sewerage which ultimately leads to the river ganga. about 14 of the tanneries are stated to be engaged in the construction of the primary treatment plants. it is pleaded on behalf of the rest of the tanneries who are the members of the hindustan chambers of commerce and three other tanneries represented by shir mukul mudgal that if some time is given to them to establish the pre-treatment plants they would h 298 do so. lt is, however, submitted by all of them that it would not be possible for them to have the secondary system for treating wastewater as that would involve enormous expenditure which the tanneries themselves would not be able to meet. it is true that it may not be possible for the tanneries to establish immediately the secondary system plant in view of the large expenditure involved but having regard to the adverse effect the effluents are having on the river water, the tanneries at jajmau, kanpur should, at least set up of the primary treatment plants and that is the minimum which the tanneries should do in the circumstances of the case. in the counter-affidavit filed on behalf of the hindustan chamber of commerce it is seen that the cost of pretreatment plant for a 'a' class tannery is rs.3,68,000, the cost of the plant for a 'b' class tannery is rs.2,30,000 and the cost of the plant for 'c' class tannery is rs.50,000 this cost does not appear to be excessive. the financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist a tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence for the adverse effect on the public at large which is likely to ensue by the discharging of the trade effluents from the tannery to the river ganga would be immense and it will outweigh any inconvenience that may be caused to the management and the labour employed by it on account of its closure. moreover, the tanneries involved in these cases are not taken by surprise. for several years they are being asked to take necessary steps to prevent the flow of untreated wastewater from their factories into the river. some of them have already complied with the demand. it should be remembered that the effluent discharged from a tannery is ten times noxious when compared

with the domestic sewage water which flows into the river from any urban areas on its banks. we feel that the tanneries at jajmau, kanpur cannot be allowed to continue to carry on the industrial activity unless they take steps to establish primary treatment plants. in cases of this nature this court may issue appropriate directions if it finds that the public nuisance or other wrongful act affecting or likely to affect the public is being committed and the statutory authorities who are charged with the duty to prevent it are not taking adequate steps to rectify the grievance. for every breach of a right there should be a remedy. it is unfortunate that a number of tanneries at jajmau even though they are aware of these proceedings have not cared even to enter appearance in this court to express their willingness to take appropriate steps to establish the pretreatment plants. so far as they are concerned an order directing them to stop working their tanneries should be passed. 299 we accordingly direct m/s. delight tannery (respondent 14), m/s. hindustan tannery (respondent 15), m/s. primer allarmin tannery (respondent 33), m/s. mahaboob tannery (respondent 37), m/s. popular tannery (respondent 38), m/s. standard tannery (respondent 39), m/s. vikash tarmery (respondent 40), m/s. new golden tannery (respondent 41), m/s. d.d. tannery (respondent 42), m/s. himalaya tannery (respondent 44), m/s. commercial industry (respondent 45), m/s. madina tannery (respondent 46), m/s. kanpur tannery (respondent 48), m/s. new jab tannery (respondent 49), m/s. famous tannery (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 tanning industry (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. alam tannery (respondent 83), m/s. g.t. tannery (respondent 84), and m/s. awadh tannery (respondent 86) to stop the running of their tanneries and also not to let out trade effluents from their tanneries either directly or indirectly into the river ganga without subjecting the trade effluents to a pretreatment process by setting up primary treatment plants as approved by the state board (respondent 8) with effect from 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. shewan tannery (respondent 20), m/s. pioneer tannery (respondent 23), and m/s. m.k.j. corporation (respondent 89) who have already put up the primary treatment plants may continue to

carry on production in their factories subject to the condition that they should continue to keep the primary treatment plants established by them in sound working order. shri s.k. dholakia, learned counsel for the other tanneries who are members of the hindustan chambers of commerce and the other tanneries who have entered appearance through shri mukul mudgal submits that they will establish primary treatment plants within six months and he further submits that in the event of their not completing the construction of the primary treatment plants as approved by the state board (respondent 8) and bringing them into operation within the period of six months the said tanneries will stop carrying on their business. we record the statement made by the learned counsel and grant them time till 31.3.1988 to set up the primary treatment plants. if 300 any of these tanneries does not set up a primary treatment plant within 31.3.1988 it is directed to stop its business with effect from 1.4.1988. we issue a direction to the central government, the uttar pradesh board, established under the provisions of the water (prevention and control of pollution) act, 1974 and the district magistrate, kanpur to enforce our order faithfully. copies of this order shall be cent to them for information the case is adjourned to 27th october, 1987 to consider the case against the municipal bodies in the state of uttar pradesh having jurisdiction over the areas through which the river ganga is passing. singh, j. i respectfully agree with every word what my learned brother venkataramiah, j. has stated in the proposed order and the directions issued by that order. however, i wish to add few words. the river ganga is one of the greatest rivers of the world, although its entire course is only 1560 miles from its source in himalaya to the sea. there are many rivers larger in shape and longer in size but no river in the world has been so great as the ganga. it is great because to millions of people since centuries it is the most sacred river. it is called "sursari" river of the gods, 'patitpawani' purifier of all sins and 'ganga ma' mother ganges. to millions of hindus, it is the most sacred, most venerated river on earth. according the hindu belief and mythology to bathe init, is to wash away guilt, to drink the water, having bathed in it, and to carry it away in containers for those who may have not had the good fortune to make the pilgrimage, to it, is meritorious. to be cremated on its banks, or to die there, and to have one's ashes cast on its waters, is the wish of every hindu. many p saints and sages have persued their quest for knowledge and enlightenment on the banks of the river ganga. its water has

not only purified the body and soul of the millions but it has given fertile land to the country in uttar pradesh and bihar. ganga has been used as means of water transport for trade and commerce. the indian civilization of the northern india thrived in the plains of ganga and most of the important towns and places of pilgrimage are situated on its banks. the river ganga has been part of hindu civilization. pt. jawahar lal nehru who did not consider himself a devout hindu gave expression to his feelings for the ganga that is to be found in his will and testament, a short extract from which 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 people of india, indian culture and civilization has grown around it. 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 always been an integral part of the nation's history, culture and environment. it has been the source of sustenance of the millions of people who have lived on its banks from time immemorial. millions of our people bathe in the ganga drink its water under an abiding faith and belief to purify themselves and to achieve moksha release from the cycle of birth and death. it is tragic that the ganga, which has since time immemorial, purified the people is being polluted by man in numerous ways, by dumping of garbage, throwing carcass of dead animals and discharge of effluents. scientific investigations and survey reports have shown that the ganga which serves one-third of the india's population is polluted

by the discharge of municipal sewage and the industrial effluents in the river. the pollution of the river ganga is affecting the life, health, and ecology of the indo-gangetic plain. the government as well as parliament both have taken a number of steps to control the water pollution, but nothing substantial has been achieved. i need not refer to those steps as my learned brother has referred to them in detail. no law or authority can succeed in removing the pollution unless the people cooperate. to my mind, it is the sacred duty of all those who reside or carry on business around 302 the 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 for the 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. 303 petitioner: 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 rangnath oza, 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--private corporation-engaged in industry vital to public interest with 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 only injunctive in ambit--remedial in scope and provides relief for infringement of fundamental right--power to award compensation. public interest litigation--maintainability of--whether letters addressed even to an individual judge entertainable--whether preferred form of address applicable--whether letters to be supported by affidavits--hyper-technical approach to be avoided by the court--court must look at the substance and not the form--court's power to collect relevant material and to appoint commissions. law of torts--liability of an enterprise engaged in a hazardous and inherently dangerous industry for occurrence of accident--strict and absolute--quantum of compensation payable for harm caused--determination of--rule laid in rylands v. fletcher--whether applicable in india. jurisprudence--law--should keep pace with changing socioeconomic norms---where a law of the past does not fit in to the present context, court should evolve new law. interpretation of constitution--creative and innovative interpretation in consonance with human rights jurisprudence emphasised. interpretation of statutes--foreign case law--supreme court 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 of shriram foods & fertilizers 820 industries on the ground that they were hazardous to the community. during the pendency of the petition, there was escapeof oleum gas from one of the units of shriram. the delhi legal aid and advice board and the delhi bar association filed applications for award of compensation to the persons who had suffered harm on account of escape of oleum gas. a bench of three hon'ble judges while permitting shriram to restart its power plant as also other plants subject to certain conditions, referred the applications for compensation to a larger bench of five judges because issues of great constitutional importance were involved, namely, (1)

what is the scope and ambit of the jurisdiction of the supreme court under art. 32 since the applications for compensation are sought to be maintained under that article; (2) whether art. 21 is available against shriram which is owned by delhi cloth mills limited, a public company limited by shares and which is engaged in an industry vital to public interest and with potential to affect the life and health of the people; and (3) what is the measure of liability of an enterprise which is engaged in an hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons die or are injured. does the rule in rylands v. fletcher, (1866 law report 1 exchequer 265) apply or is there any other principle on which the liability can be determined. disposing of the applications, held: 1. the question whether a private corporation like shriram would fall within the scope and ambit of art. 12 so as to be amenable to the discipline of art. 21 is left for proper and detailed consideration at a later stage if it becomes necessary to do so. [844f-g] rajasthan electricity board v. mohan lal, [1967] 3 scr 377; sukhdev v. bhagwat ram, [1975] 1 scc 421; ramanna shetty v. international airport authority, [1979] 3 scr 1014; ajay hasia v. khalid mujib, [1981] 2 scr 79; som prakash v. union of india, [1981] 1 s.c.c. 449; appendix i to industrial policy resolution, 1948; industries (development and regulation) act, 1951; delhi municipal act, 1957 water (prevention and control of pollution) act, 1974; air (prevention and control of pollution) act, 1981; eurasian equipment and chemicals ltd. v. state of west bengal, [1975] 2 scr 674; rasbehari panda v. st.ate, [1969] 3 scr 374; kasturi lal reddy v. state of jammu & kashmir, [1980] 3 scr 1338, referred to. 821 2. the delhi legal aid and advice board is directed to take up the cases of all those who claim to have suffered on account of oleum gas and to file actions on their behalf in the appropriate court for claiming compensation and the delhi administration is directed to provide necessary funds to the board for the purpose. [844g-h; 845a] 3.(i) where there is a violation of a fundamental or other legal right of a person or class of persons who by reason of poverty or disability or socially or economically disadvantaged position cannot approach a court of law for justice, it would be open to any public-spirited individual or social action group to bring an action for vindication of the fundamental or other legal right of such individual or class of individuals and this can be done not only by filing regular writ petition under art. 226 in the high court and under art. 32 in this court, but also by addressing a letter to the court. [828b-c; e-f]

3.(ii) even if a letter is addressed to an individual judge of the court, it should be entertained, provided of course it is by or on behalf of a person in custody or on behalf of a woman or a child or a class or deprived or disadvantaged persons. [829b-c] 3.(iii) letters addressed to individual justices of this court should not be rejected merely because they fail to conform to the preferred form of address nor should the court adopt a rigid stance that no letters will be entertained unless they are supported by an affidavit. if the court were to insist on an affidavit as a condition of entertaining the letters the entire object and purpose of epistolary jurisdiction would be frustrated because most of the poor and disadvantaged persons will then not be able to have easy access to the court and even the social action groups will find it difficult to approach the court. [828h; 829b] bandhua mukti morcha v. union of india & ors., [1984] 2 scr 67; s.p. gupta v. union of india, [1981] (suppl) scc 87 and union for democratic rights & ors. v. union of india, [1983] 1 scr 456, relied upon. 4.(i) article 32 does not merely confer power on this court to issue direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this court to protect the fundamental rights of the people and for that purpose this court has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights. it is in realisation of this constitutional obligation that this court 822 has, in the past, innovated new methods and strategies for the purpose of securing enforcement of the fundamental rights, particularly in the case of the poor and the disadvantaged who are denied their basic human rights and to whom freedom and liberty have no meaning. [827f-828a] 4.(ii) the power of the court is not only injunctive in ambit, that is, preventing the infringement of fundamental right but it is also remedial in scope and provides relief against a breach of the fundamental right already committed. [830a-b] 4.(iii) the power of the court to grant such remedial relief may include the power to award compensation in appropriate cases. the infringement of the fundamental right must be gross and patent, that is incontrovertible and exfacie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons or it should appear unjust or unduly harsh or oppressing on account of their poverty or disability or socially or economically disadvantaged position to require

the person or persons affected by such infringement to initiate and pursue action in the civil courts. [830d; e-f] 4. (iv) ordinarily a petition under art. 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of civil court. it is only in exceptional cases that compensation may be awarded in a petition under art. 32. [830f-g] 4.(v) the applications for compensation in the instant writ petition are for enforcement of the fundamental right to life enshrined in art. 21 of the constitution and while dealing with such applications the court cannot adopt a hyper-technical approach which would defeat the ends of justice. the court must look at the substance and not the form. therefore, the instant applications for compensation are maintainable under art. 32. [827a-b] bandhua mukti morcha v. union of india & ors., [1984] 2 scr 67; s.p. gupta v. union of india, [1981] (suppl.) scr 87; union for democratic rights & ors. v. union of india, [1983] 1 scr 456 and rudul shah v. state of bihar, air 1983 sc 1086, relied upon. 5. the rule in rylands v. fletcher (supra) laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does 823 damage to another, he is liable to compensate for the damage caused. this rule applies only to non-natural user of the land and it does not apply to things naturally on theland or where the escape is due to an act of god and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority. this rule evolved in the 19th century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. in a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to carry on as part of developmental programme, the court need not feel inhibited by this rule merely because the new law does not recognise the rule of strict and absolute liability in case of an enterprise engaged in hazardous and dangerous activity. [842d-g] halsburry laws of england, vol. 45 para 1305, relied upon. 6.(i) law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. law cannot afford to remain static. the court cannot allow judicial thinking

to be constricted by reference to the law as it prevails in england or in any other foreign country. although this court should be prepared to receive light from whatever source it comes, but it has to build up its own jurisprudence, evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialised economy. if it is found that it is necessary to construct a new principle of law to deal with -an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dangerous industries which are concommitant to an industrial economy the court should not hesitate to evolve such principles of liability merely because it has not been so done in england. [843a-e] 6(ii) this court has throughout the last few years expanded the horizon of art. 12 primarily to inject respect for human-rights and social conscience in corporate structure. the purpose of expansion has not been to destroy the raison d'etre of creating corporations but to advance the human rights jurisprudence. the apprehension that including within the ambit of art. 12 and thus subjecting to the discipline of art. 21 those private corporations whose activities have the potential of affecting the life and health of the people, would deal a death blow to 824 the policy of encouraging and permitting private enterpreneurial activity is not well founded. it is through creative interpretation and bold innovation that the human-rights jurisprudence has been developed in india to a remarkable extent and this forward march of the humanrights movement cannot be allowed to be halted by unfounded apprehensions expressed by status quoists. [841c-e] 7.(i) an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute non-delegable duty to the community to ensure that if any harm results to anyone, the enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity must be conducted with the highest standards of safety and if any harm results on account of such activity the enterprise must be absolutely liable to compensate for such harm irrespective of the fact that the enterprise had taken all reasonable care and that the harm occurred without any negligence on its part. [843e-g] 7.(ii) if the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such activity as an appropriate item of its

overheads. the enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards. [844a-b] 7.(iii) the measure of compensation in such kind of cases must be co-related to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. the larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in carrying on of the hazardous or inherently dangerous activity by the enterprise. [844e-f] 8. the historical context in which the american doctrine of state action evolved in the united states is irrelevant for the purpose of indian courts, especially in view of art. 15(2) of the indian constitution. but, it is the principle behind the doctrine of state aid, control and regulation so impregnating a private activity as to give it the colour of state action which can be applied to the limited extent to which it can be indianised and harmoniously blended with indian constitutional 825 jurisprudence. indian courts are not bound by the american exposition of constitutional law. the provisions of american constitution cannot always be applied to indian conditions or to the provisions of indian constitution and whilst some of the principles adumberated by the american decisions may provide a useful guide, close adherence to those principles while applying them to the provisions of the indian constitution is not to be favoured, because the social conditions in india are different. [840d-h] ramanna shetty v. international airport authority, [1979] 3 scr 1014; jackson v. metropolitan edison co., 42 l.ed. (2d) 477; air india v. nargesh mirza, [1982] 1 scr 438 and general electric co. maratha v. gilbert, 50 l.ed (2d) 343, relied upon.

judgment: original jurisdiction: writ petition (civil) no. 12739 of 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. lira goswami, s. kachwaha, mohan, ravinder bana, k.c. dua, k. kumaramangalam, o.c. jain and k.r.r. pilai for the respondents. 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 the constitution has come before us on a reference made by a bench of three judges. the reference was made because certain questions of seminal importance and high constitutional significance were raised in the course of arguments when the writ petition was originally heard. the facts giving rise to the writ petition and the subsequent events have been set out in some detail in the judgment given by the bench of three judges on 17th february 1986, and it is therefore not necessary to reiterate the same. suffice it to state that the bench of three judges 826 permitted shriram foods and fertiliser industries (hereinafter referred to as shriram) to restart its power plant as also plants for manufacture of caustic chlorine including its by-products and recovery plants like soap, glycerine and technical hard oil, subject to the conditions set out in the judgment. that would have ordinarily put an end to the main controversy raised in the writ petition which was filed in order to obtain a direction for closure of the various units of shriram on the ground that they were hazardous to the community and the only point in dispute which would have survived would have been whether the units of shriram should be directed to be removed from the place where they are presently situate and relocated in another place where there would not be much human habitation so that there would not be any real danger to the health and safety of the people. but while the writ petition was pending there was escape of oleum gas from one of the units of shriram on 4th and 6th december, 1985 and applications were filed by the delhi legal aid & advice board and the delhi bar association for award of compensation to the persons who had suffered harm on account of escape of oleum gas. these applications for compensation raised a number of issues of great constitutional importance and the bench of three judges therefore formulated the issues and asked the petitioner and those supporting him as also shriram to file their respective written submissions so that the court could take up the hearing of these applications for compensation. when these applications for compensation came up for hearing it was felt that since the issues raised involved substantial questions of law relating to the interpretation of articles 21 and 32 of the constitution, the case should be referred to a larger bench of five judges and this is how the case has now come before us. mr. diwan, learned counsel appearing on behalf of shriram raised a preliminary objection that the court should not proceed to decide these constitutional issuessince there was no claim for compensation originally made in the writ

petition and these issues could not be said to arise on the writ petition. mr. diwan conceded that the escape of oleum gas took place subsequent to the filing of the writ petition but his argument was that the petitioner could have applied for amendment of the writ petition so as to include a claim for compensation for the victims of oleum gas but no such application for amendment was made and hence on the writ petition as it stood, these constitutional issues did not arise for consideration. we do not think this preliminary objection raised by mr. diwan is sustainable. it is undoubtedly true that the petitioner could have applied for amendment of the writ petition so as to include a claim for compensation but merely because he did 827 not do so, the applications for compensation made by the delhi legal aid & advice board and the delhi bar association cannot be thrown out. these applications forcompensation are for enforcement of the fundamental right to life enshrined in article 21 of the constitution and while dealing with such applications, we cannot adopt a hypertechnical approach which would defeat the ends of justice. this court has on numerous occasions pointed out that where there is a violation of a fundamental or other legal right of a person or class of persons who by reason of poverty or disability or socially or economically disadvantaged position cannot approach a court of law for justice, it would be open to any public spirited individual or social action group to bring an action for vindication of the fundamental or other legal right of such individual or class of individuals and this can be done not only by filing a regular writ petition but also by addressing a letter to the court. if this court is prepared to accept a letter complaining of violation of the fundamental right of an individual or a class of individuals who cannot approach the court for justice, there is no reason why these applications for compensation which have been made for enforcement of the fundamental right of the persons affected by the oleum gas leak under article 21 should not be entertained. the court while dealing with an application for enforcement of a fundamental right must look at the substance and not the form. we cannot therefore sustain the preliminary objection raised by mr. diwan. the first question which requires to be considered is as to what is the scope and ambit of the jurisdiction of this court under article 32 since the applications for compensation made by the delhi legal aid and advice board and the delhi bar association are applications sought to be maintained under that article. we have already had occasion to consider the ambit and coverage of article 32 in the bandhua mukti morcha v. union of india & ors., [1984] 2 scr 67 and we 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 may now be taken as well settled that article 32 does not merely confer power on this court to issue a direction, order or writ for enforcement of the fundamental rights but italso lays a constitutional obligation on this court to protect the fundamental rights of the people and for that purpose this court has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to' enforce the fundamental rights. it is in realisation of this constitutional obligation that this court has in the past innovated new methods and strategies for the purpose of securing enforcement of the fundamental rights, 828 particularly in the case of the poor and the disadvantaged who are denied their basic human rights and to whom freedom and 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 wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened, and any such person or determinate class of persons is by reason of poverty or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of the public or social action group can maintain an application for an appropriate direction, order or writ in the high court under article 226 and in case of breach of any fundamental right of such person or class of persons, in this court under article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons." this court also held in s.p. gupta's case (supra) as also in the people's union for democratic rights and ors. v. union of india, [1983] 1 scr 456 and in babdhua mukti morcha's case (supra) that procedure being merely a hand-maden of justice it should not stand in the way of access to justice to the weaker sections of indian humanity and therefore where the poor and the disadvantaged are concerned who are barely eking out a miserable existence with their sweat and toil and who are victims of an exploited society without any access to justice, this court will not insist on a regular writ petition and even a letter addressed by a public spirited individual or a social action group acting probono publico would suffice to ignite the jurisdiction of this court. we wholly endorse this statement of the law in regard to the broadening of locus standi and what-has come to be known as epistolary jurisdiction. we may point out at this stage that in bandhua mukti morcha's case (supra) some of us apprehending that letters

addressed to individual justices may involve the court in frivolous cases and that possibly the view could be taken that such letters do not invoke the jurisdiction of the court as a whole, observed that such letters should not be addressed to individual justices of the court but to the court or to the chief justice and his companion judges. we do not think that it would be right to reject a letter addressed to an individual justice of the court merely on the ground that it is not addressed to the court or to the chief justice and his companion judges. we must not forget that 829 letters would ordinarily be addressed by poor and disadvantaged persons or by social action groups who may not know the proper form of address. they may know only a particular judge who comes from their state and they may therefore address the letters to him. if the court were to insist that the letters must be addressed to the court, or to the chief justice and his companion judges, it would exclude from the judicial ken a large number of letters and in the result deny access to justice to the deprived and vulnerable sections of the community. we are therefore of the view that even if a letter is addressed to an individual judge of the court, it should be entertained, provided of course it is by or on behalf of a person in custody or on behalf of a woman or a child or a class of deprived or disadvantaged persons. we may point out that now there is no difficulty in entertaining letters addressed to individual justice of the court, because this court has a public interest litigation cell to which all letters addressed to the court or to the individual justices are forwarded and the staff attached to this cell examines the letters and it is only after scrutiny by the staff members attached to this cell that the letters are placed before the chief justice and under his direction, they are listed before the court. we must thereforehold that letters addressed to individual justice of the court should not be rejected merely because they fail to conform to the preferred form of address. nor should the court adopt a rigid stance that no letters will be entertained unless they are supported by an affidavit. if the court were to insist on an affidavit as a condition of entertaining the letters the entire object and purpose of epistolary jurisdiction would be frustrated because most of the poor and disadvantaged persons will then not be able to have easy access to the court and even the social action groups will find it difficult to approach the court. we may point out that the court has so far been entertaining letters without an affidavit and it is only in a few rare cases that it has been found that the allegations made in the letters were false. but that might happen also in cases where the jurisdiction of the court is invoked in a regular way:

so far as the power of the court under article 32 to gather relevant material bearing on the issues arising in this kind of litigation, which we may for the sake of convenience call.social action litigation, and to appoint commissions for this purpose is concerned, we endorse. what one of us namely, bhagwati, j., as he then was, has said in his judgment in bandhua mukti morcha's case (supra). we need not repeat what has been stated in that judgment.' it has our full approval. we are also of the view that this court under article 32(1) is free 830 to devise any procedure appropriate for the particular purpose of the proceeding, namely, enforcement of a fundamental right and under article 32(2) the court has the implicit power to issue whatever direction, order or writ is necessary in a given case, including all incidental or ancillary power necessary to secure enforcement of the fundamental right. the power of the court is not only injunctive in ambit, that is, preventing the infringement of a fundamental right, but it is also remedial in scope and provides relief against a breach of the fundamental right already committed vide bandhua mukti morcha's case (supra). if the court were powerless to issue any direction, order or writ in cases where a fundamental right has already been violated, article 32 would be robbed of all its efficacy, because then the situation would be that if a fundamental right is threatened to be violated, the court can injunct such violation but if the violator is quick enough to take action infringing the fundamental right, he would escape from the net of article 32. that would, to a large extent, emasculate the fundamental right guaranteed under article 32 and render it impotent and futile. we must, therefore, hold that article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. he can in that event seek remedial assistance under article 32. the power of the court to grant such remedial relief may include the power to award compensation in appropriate cases. we are deliberately using the words "in appropriate cases" because we must make it clear that it is not in every case where there is a breach of a fundamental right committed by the violator that compensation would be awarded by the court in a petition under article 32. the infringement of the fundamental right must be gross and patent, that is, incontrovertible and ex facie glaring and either suchinfringement should be on a large scale affecting the fundamental rights of a large number of persons, or it should appear unjust or unduly harsh or oppressive on account of theft poverty or disability or socially or economically, disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the civil

courts. ordinarily, of course, a petition under article 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of civil court. it is only in exceptional cases of the nature indicated by us above, that compensation may be awarded in a petition under article 32. this is the principle on which this court awarded compensation in rudul shah v. state of bihar, (air1983 sc 1086). so also, this court awarded compensation to bhim singh, whose fundamental right to personal liberty was grossly violated by the state of jammu and kashmir. if we make a fact analysis of the cases where compensation has been 831 awarded 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 to shock the conscience of the court and it would have been gravely unjust to the person whose fundamental right was violated, to require him to go to the civil court for claiming compensation. the next question which arises for consideration on these applications for compensation is whether article 21 is available against shriram which is owned by delhi cloth mills limited, a public company limited by shares and which is engaged in an industry vital to public interest and with potential to affect the life and health of the people. the issue of availability of article 21 against a private corporation engaged in an activity which has potential to affect the life and health of the people was vehemently argued by counsel for the applicants and shriram. it was emphatically contended by counsel for the applicants, with the analogical aid of the american doctrine of state action and the functional and control test enunciated by this court in its earlier decisions, that article 21 was available, as shriram was carrying on an industry which, according to the government's own declared industrial policies, was ultimately intended to be carried out by itself, but instead of the government immediately embarking on that industry, shriram was permitted to carry it on under the active control and regulation of the government. since the government intended to ultimately carry on this industry and the mode of carrying on the industry could vitally affect public interest, the control of the government was linked to regulating that aspect of the functioning of the industry which could vitally affect public interest. special emphasis was laid by counsel for the applicants on the regulatory mechanism provided under the industries development and regulation act, 1951 where industries are included in the schedule if they vitally affect public interest. regulatory measures are also to be found in the bombay municipal corporation act,

the air and water pollution control acts and now the recent environment act, 1986. counsel for the applicants also pointed to us the sizable aid in loans, land and other facilities granted by the government to shriram in carrying on the industry. taking aid of the american state action doctrine, it was also argued before us on behalf of the applicants that private activity, if supported, controlled or regulated by the state may get so entwined with governmental activity as to be termed state action and it would then be subject to the same constitutional restraints on the exercise of power as the state. 832 on the other hand, counsel for shriram cautioned against expanding article 12 so as to bring within its ambit private corporations. he contended that control or regulation of a private corporations functions by the state under general statutory law such as the industries development and regulation act, 1951 is only in exercise of police power of regulation by the state. such regulation does not convert the activity of the private corporation into that of the state. the activity remains that of the private corporation, the state in its police power only regulates the manner in which it is to be carried on. it was emphasised that control which deems a corporation, an agency of the state, must be of the type where the state controls the management policies of the corporation, whether by sizable representation on the board of management or by necessity of prior approval of the government before any new policy of management is adopted, or by any other mechanism. counsel for shriram also pointed out the inappositeness of the state action doctrine to the indian situation. he said that in india the control and function test have been evolved in order to determine whether a particular authority is an instrumentality or agency of the state and hence 'other authority' within the meaning of article 12. once an authority is deemed to he 'other authority' under article 12, it is state for the purpose of all its activities and functions and the american functional dichotomy by which some functions of an authority can be termed state action and others private action, cannot operate here. the learned counsel also pointed out that those rights which are specifically intended by the constitution makers to be available against private parties are soprovided in the constitution specifically such as articles 17, 23 and 24. therefore, to so expand article 12 as to bring within its ambit even private corporations would be against the scheme of the chapter on fundamental rights. in order to deal with these rival contentions we think it is necessary that we should trace that part of the development of article 12 where this court embarked on the path of evolving criteria by which a corporation could be termed 'other authority' under article 12.

in rajasthan electricity board v. mohan lal, [1967] 3 scr 377 this court was called upon to consider whether the rajasthan electricity board was an 'authority' within the meaning of the expression 'other authorities' in article 12. bhargava, j. who delivered the judgment of the majority pointed out that the expression 'other authorities' in article 12 would include all constitutional and statutory authorities on whom powers are conferred by law. the learned judge also said that if any body of persons has authority to issue directions, the dis833 obedience of which would be publishable as a criminal offence, that would be an indication that the concerned authority is 'state'. shah, j., who delivered a separate judgment agreeing with the conclusion reached by the majority, preferred to give a slightly different meaning to the expression 'other authorities'. he said that authorities, constitutional or statutory, would fail within the expression "other authorities" only if they are invested with the sovereign power of the state, namely, the power to make rules and regulations which have the force of law. the ratio of this decision may thus be stated to be that a constitutional or statutory authority would be within the expression "other authorities" if it has been invested with statutory power to issue binding directions to third parties, the disobedience of which would entail penal consequences or it has the sovereign power to make rules and regulations having the force of law. this test was followed by ray, c j, in sukhdev v. bhagat ram, [1975] 1 scc 421. mathew, j. however, in the same case propounded a broader test. the learned judge emphasised that the concept of 'state' had undergone drastic changes in recent years and today 'state' could not be conceived of simply as a coercive machinery wielding the thunderbolt of authority; rather it has to be viewed mainly as a service corporation. he expanded on this dictum by stating that the emerging principle appears to be that a public corporation being an instrumentality or agency of the 'state' is subject to the same constitutional limitations as the 'state' itself. the preconditions of this are two, namely, that the corporation is the creation of the 'state' and that there is existence of power in the corporation to invade the constitutional rights of the individual. this court in ram anna shetty v. international airport authority, [1979] 3 scr 1014 accepted and adopted the rational of instrumentality or agencyof state put forward by mathew, j., and spelt out certain criteria with whose aid such an inference could be made. however, before we come to these criteria we think it necessary to refer to the concern operating behind exposition of the broader test by justice mathew which is of equal relevance to us today, especially considering the fact

the

that the definition under article 12 is. an inclusive and not an exhaustive definition. that concern is the need to curb arbitrary and unregulated power wherever and howsoever reposed. in ramanna d. shetty v. international airport authority (supra) this court deliberating on the criteria on the basis of which to determine whether a corporation is acting as instrumentality or agency of government said that it was not possible to formulate an all inclu834 sive or exhaustive test which would adequately answer this question. there is no out and dried formulawhich would provide the correct division of corporations into those which are instrumentalities or agencies of government and those which are not. the court said whilst formulating the criteria that analogical aid can be taken from the concept of state action as developed in the united states wherein the u.s. courts have suggested that a private agency if supported by extra-ordinary assistance given by the state may be subject to the same constitutional limitations as the state. it was pointed out that the state's general commonlaw and statutory structure under which its people carry on their private affairs, own property and enter into contracts, each enjoying equality in terms of legal capacity, is not such assistance as would transform private conduct into state action. "but if extensive and unusual financial assistance is given and the purpose of such assistance coincides with the purpose for which the corporation is expected to use the assistance and such purpose is of public character, it may be a relevant circumstance supporting an inference that the corporation is an instrumentality or agency of the government". on the question of state control, the court in r.d. shetty's case (supra) clarified that some control by the state would not be determinative of the question, since the state has considerable measure of control under its police power over all types of business organisations. but a finding of state financial support plus an unusual degree of control over the management and policies of the corporation might lead to the characterisation of the operation as state action. whilst deliberating on the functional criteria namely, that the corporation is carrying out a governmental function. the court emphasised that classification of a function as governmental should not be done on earlier day perceptions but on what the state today views as an indispensable part of its activities, for the state may deem it as essential to its economy that it owns and operate a railroad, a mill or an irrigation system as it does to own and operate bridges street lights or a sewage disposal plant. the court also 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 or public functions are by virtue of the nature of the functions performed government agencies. activities which are too fundamental to the society are by definition too important not to be considered government functions." the above discussion was rounded off by the court in r.d. 835 shetty's case (supra) by enumerating the following five factors namely, (1) financial assistance given by the state and magnitude of such assistance (2) any other form of assistance whether of the usual kind or extraordinary (3) control of management and policies of the corporation by the state-nature and extent of control (4) state conferred or state protected monopoly status and (5) functions carried out by the corporation, whether public functions closely related to governmental functions, as relevant criteria for determining whether a corporation is an instrumentality or agencyof the state or not, though the court took care to point out that the enumeration was not exhaustive and that it was the aggregate or cumulative effect of all the relevant factors that must be taken as controlling. the criteria evolved by this court in ramanna shetty's case (supra) were applied by this court in ajay hasia v. khalid mujib, [1981] 2 scr 79 where it was further emphasised that: "where constitutional fundamentals vital to the maintenance of human rights are at stake, functional realism and not facial cosmetics must be the diagnostic tool for constitutional law must seek the substance and not the form. now it is obvious that the government may through the instrumentality or agency of natural persons or it may employ the instrumentality or agency of judicial persons to carry out its functions. it is really the government which acts through the instrumentality or agency of the corporation and the juristic veil of corporate personality worn for the purpose of convenience of management and administration cannot be allowed to obliterate the true nature of the reality behind which is the government ..... (for if the government acting through its officers is subject to certain constitutional limitations it must follow a fortiorari that the government acting through the instrumentality or agency of a corporation should be equality subject to the same limitations". on the canon of construction to be adopted for interpreting constitutional guarantees the court pointed out: ".... constitutional guarantees ... should not be allowed to be emasculated in their application by a narrow and constructed judicial interpretation. the courts should be anxious to enlarge the scope and width of the fundamental 836

rights by bringing within their sweep every authority which is an instrumentality or agency of the government or through the corporate personality of which the government is acting, so as to subject the government in all its myriad activities, whether through natural persons or through corporate entities to the basic obligation of the fundamental rights." in this case the court also set at rest the controversy as to whether the manner in which a corporation is brought into existence had any relevance to the question whether it is a state instrumentality or agency. the court said that it is immaterial for the purpose of determining whether a corporation is an instrumentality or agency of the state or not whether it is created by a statute or under a statute: "the inquiry has to be not as to how the juristic person is born but why it has been brought into existence. the corporation may be a statutory corporation created by statute or it may be a government company or a company formed under the companies act, 1956 or it may be a society registered under the societies registration act, 1860 or any other similar statute". it would come within the ambit of article 12, if it is found to an instrumentality or agency of the state on a proper assessment of the relevant factors. it will thus be seen that this court has not permitted the corporate device to be utilised as a barrier ousting the constitutional control of the fundamental rights. rather the court has held: "it is dangerous to exonerate corporations from the need to have constitutional conscience, and so that interpretation, language permitting, which makesgovernmental agencies whatever their main amenable to constitutional limitations must be adopted by the court as against the alternative of permitting them to flourish as an imperium in imperio". som prakash v. union of india, [1981] 1 scc 449. taking the above exposition as our guideline, we must now proceed to examine whether a private corporation such as shriram comeswithin the ambit of article 12 so as to be amenable to the discipline of article 21. in order to assess the functional role allocated to private corporation engaged in the manufacture of chemicals and fertilisers we need 837 to examine the industrial policy of the government and see the public interest importance given by the state to the activity carried on by such private corporation. under the industrial policy resolution 1956 industries were classified into three categories having regard to the part which the state would play in each of them. the first category was to be the exclusive responsibility of the state. the second category comprised those industries which would be progressively state owned and in which the state would therefore generally take the initiative in establish-

ing new undertakings but in which private enterprise would also be expected to supplement the effort of the state by promoting and development undertakings either on its own or with state participation. the third category would include all the remaining industries and their future development would generally be left to the initiative and enterprise of the private sector. schedule b to the resolution enumerated the industries. appendix i to the industrial policy resolution, 1948 dealing with the problem of state participation in industry and the conditions in which private enterprise should be allowed to operate stated that there can be no doubt that the state must play a progressively active role in the development of industries. however under the present conditions, the mechanism and resources of the state may not permit it to function forthwith in industry as widely as may be desirable. the policy declared that for some time to come, the state could contribute more quickly to the increase of national wealth by expanding its present activities wherever it is already operating and by concentrating on new units of production in other fields. on these considerations the government decided that the manufacture of arms and ammunition, the production control of atomic energy and the ownership and management of railway transport would be the exclusive monopoly of the central government. the establishment of new undertakings in coal, iron and steel, aircraft manufacture, ship building, manufacture of telephone telegraph and wireless apparatus and mineral oil were to be the exclusive responsibility of the state except where in national interest the state itself finds it necessary to secure the co-operation of private enterprise subject to control of the central government. the policy resolution also made mention of certain basic industries of importance the planning and regulation of which by tile cent838 ral government was found necessary in national interest. among the eighteen industries so mentioned as requiring such central control. heavy chemicals and fertilisers stood included. in order to carry out the objective of the policy resolution the industries (development and regulation) act of 1951 was enacted which, according to its objects and reasons, brought under central control the development and regulation of a number of important industries the activities of which affect the country as a whole and the development of which must be governed by economic factors of all india import. section 2 of the act declares that it is expedient in the public interest that the union should take under its control the industries specified in the first schedule. chemicals and fertilisers find a place in the

and

first schedule as items 19 and 18 respectively. if an analysis of the declarations in the policy resolutions and the act is undertaken, we find that the activity of producing chemicals and fertilisers is deemed by the state to be an industry of vital public interest, whose public import necessitates that the activity should be ultimately carried out by the state itself, in the interim period with state support and under state control, private corporations may also be permitted to supplement the state effort. the argument of the applicants on the basis of this premise was that in view of this declared industrial policy of the state, even private corporations manufacturing chemicals and fertilisers can be said to be engaged in activities which are so fundamental to the society as to be necessarily considered government functions. sukhdev v. bhagat ram, ramanna shetty and ajay hasia (supra). it was pointed out on behalf of the applicants that as shriram is registered under the industries development and regulation act 1951, its activities are subject to extensive and detailed control and supervision by the government. under the act a licence is necessary for the establishment of a new industrial undertaking or expansion of capacity or manufacture of a new article by an existing industrial undertaking carrying on any of the scheduled industries included in the first schedule of the act. by refusing licence for a particular unit, the government can prevent over concentration in a particular region or over-investment in a particular industry. moreover, by its power to specify the capacity in the licence it can also prevent over-development of a particular industry if it has already reached target capacity. section 18 g of the act empowers the government to control the supply, distribution, price etc. of the articles manufactured by a scheduled 839 industry and under section 18a government can assume management and control of an industrial undertaking engaged in a scheduled industry if after investigation it is found that the affairs of the undertaking are being managed in a manner detrimental to public interest and under section 18aa in certain emergent cases, take-over is allowed even without investigation. since shriram is carrying on a scheduled industry, it is subject to this stringent system of registration and licensing. it is also amenable. to various directions that may be issued by the government from time to time and it is subject to the exercise of the powers of the government under sections 18a, and 18g. shriram is required to obtain a licence under the factories act and is subject to the directions and orders of the authorities under the act. it is also required to obtain a licence for its manufacturing activities from the municipal authorities 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 the factory is situated in an air pollution control area, it is also subject to the regulation of the air (prevention and control of pollution) act, 1981. it is true that control is not exercised by the government in relation to the internal management policies of the company. however, the control is exercised on all such activities of shriram which can jeopardize public interest. this functional control is of special significance as it is the potentiality of the fertilizer industry to adversely affect the health and safety of the community and its being impregnated with public interest which perhaps dictated the policy decision of the government to ultimately operate this industry exclusively and invited functional control. along with this extensive functional control, we find that shriram also receives sizable assistance in the shape of loans and overdrafts running into several crores of rupees from the government through various agencies. moreover, shriram is engaged in the manufacture of caustic soda, chlorine etc. its various units are set up in a single complex surrounded by thickly populated colonies. chlorine gas is admittedly dangerous to life and' health. if the gas escapes either from the storage tank or from the filled cylinders or from any other point in the course of production, the health and wellbeing of the people living in the vicinity can be seriously affected. thus shriram is engaged in an activity which has the potential to invade the right to life of large sections of people. the question is whether these factors are cumulatively sufficient to bring shriram within the ambit of article 12. prima facie it is arguable that when the states' power as economic agent, economic entrepreneur and allocator of economic benefits is subject to the limitations of fundamental rights. (vide 840 eurasian equipment and chemicals ltd. v. state of west bengal, (1975) 2 scr 674, rashbehari panda v. state, [1983] 3 scr 374, ramanna shetty v. international airport authority, (supra) and kasturilal reddy v. state of jammu & kashmir, [1980] 3 scr 1338) why should a private corporation under the functional control of the state engaged in an activity which is hazardous to the health and safety of the community and is imbued with public interest and which the state ultimately proposes to exclusively run under its industrial policy, not be subject to the same limitations. but we do not propose to decide this question and make any definite pronouncement upon it for reasons which we shall point out later in the course of this judgment. we were during the course of arguments, addressed at great length by counsel on both sides on the american doctrine of state action. the learned counsel elaborately traced the evolution of this doctrine in its parent country.

we are aware that in america since the fourteenth amendment is available only against the state, the courts, in order to thwart racial discrimination by private parties, devised the theory of state action under which it was held that wherever private activity was aided, facilitated or supported by the slate in a significant measure, such activity took the colour of state action and was subject to the constitutional limitations of the fourteenth amendment. this historical context in which the doctrine of state action evolved in the united states is irrelevant for our purpose especially since we have article 15(2) in our constitution. but it is the principle behind the doctrine of state aid, control and regulation so impregnating a private activity as to give it the colour of state action that is of interest to us and that also to the limited extent to which it can be indianized and harmoniously blended with our constitutional jurisprudence. that we in no way consider ourselves bound by american exposition of constitutional law is well demostrated by the fact that in ramanna shetty, (supra) this court preferred the minority opinion of douglas, j. in jackson v. metropolitan edison company, 42 l.ed. (2d) 477 as against the majority opinion of rehnquist, j. and again in air india v. nargesh mirza, [1982] 1 scr 438 this court whilst preferring the minority view in general electric company martha v. gilbert, 50 l.ed. (2d) 343 said that the provisions of the american constitution cannot always be applied to indian conditions or to the provisions of our constitution and whilst some of the principles adumbrated by the american decisions may provide a useful guide, close adherence to those principles while applying them to the provisions of our constitution is not to be favoured, because the social conditions in our country are different. the learned counsel for shriram stressed the inapposite841 ness of the doctrine of state action in the indian context because, according to him, once an authority is brought within the purview of article 12, it is state for all intents and purposes and the functional dichotomy in america where certain activities of the same authority may be charaterised as state action and others as private action cannot be applied here in india. but so far as this argument is concerned, we must demur to it and point out that it is not correct to say that in india once a corporation is deemed to be 'authority', it would be subject to the constitutional limitation of fundamental rights in the performance of all its functions and that the appellation of 'authority' would stick to such corporation, irrespective of the functional context. before we part with this topic, we may point out that this court has throughout the last few years expanded the horizon of article 12 primarily to inject respect for

human-rights and social conscience in our corporate structure. the purpose of expansion has not been to destroy the raison d'eter of creating corporations but to advance the human rights jurisprudence. prima facie we are not inclined to accept the apprehensions of learned counsel for shriram as well-founded when he says that our including within the ambit of article 12 and thus subjecting to the discipline of article 21, those private corporations whose activities have the potential of affecting the life and health of the people, would deal a death blow to the policy of encouraging and permitting private entrepreneurial activity. whenever a new advance is made in the field of human rights, apprehension is always expressed by the status quosits that it will create enormous difficulties in the way of smooth functioning of the system and affect its stability. similar apprehension was voiced when this court in ramanna shetty's case (supra) brought public sector corporations within the scope and ambit of article 12 and subjected them to the discipline of fundamental rights. such apprehension expressed by those who may be affected by any new and innovative expansion of human rights need not deter the court from widening scope of human rights and expanding their reach ambit, if otherwise it is possible to do so without doing violence to the language of the constitutional provision. it is through creative interpretation and bold innovation that the human rights jurisprudence has been developed in our country to a remarkable extent and this forward march of the human rights movement cannot be allowed to be halted by unfounded apprehensions expressed by status quoists. but we do not propose to decide finally at the present stage whether a private corporation like shriram would fall within the scope and ambit of article 12, because we have not had sufficient time to consider and reflect on this question in depth- the hearing of this case before us 842 concluded only on 15th december 1986 and we are called upon to deliver our judgment within a period of four days, on 19th december 1986. we are therefore of the view that this is not a question on which we must make any definite pronouncement at this stage. but we would leave it for a proper and detailed consideration at a later stage if it becomes necessary to do so. we must also deal with one other question which seriously debated before us and that question is as to what is the measure of liability of an enterprise which is engaged in an hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons die or are injured. does the rule in rylands v. fletcher apply or is there any other principle on which the liability can be determined? the rule in rylands v. fletcher was evolved in the year 1866 and it provides that a person

the

was

who

for his own purposes being on to his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and, if he falls to do so, is prima facie liable for the damage which is the natural consequence of its escape. the liability under this rule is strict and it is no defence that the thing escaped without that person's wilful act, default or neglect or even that he had no knowledge of its existence. this rule laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does damage to another, he is liable to compensate for the damage caused. of course, this rule applies only to non-natural user of the land and it does not apply to things naturally on the land or where the escapeis due to an act of god and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority. vide halsbury laws of england, vol. 45 para 1305. considerable case law has developed in england as to what is natural and what is non-natural use of land and what are precisely the circumstances in which this rule may be displaced. but it is not necessary for us to consider these decisions laying down the parameters of this rule because in a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to carry out part of the developmental programme. this rule evolved in the 19th century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. we need not feel inhibited by this rule which was evolved in this context of a totally different kind of 843 economy. law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. as new situations arise the law has to be evolved in order to meet the challenge of such new situations. law cannot afford to remain static. we have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialised economy. we cannot allow our judicial thinking to be constricted by reference to the law as it prevails in england or for the matter of that in any other foreign country. we no longer need the crutches of a foreign legal order. we are certainly prepared to receive light from whatever source it comes but we have to build up our own jurisprudence and we cannot countenance an argument that merely because the new law does not recognise the rule of strict and absolute liability in cases of

hazardous or dangerous liability or the rule as laid down in rylands v. fletcher as is developed in england recognises certain limitations and responsibilities. we in india cannot hold our hands back and i venture to evolve a new. principle of liability which english courts have not done. we have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dangerous industries which are concommitant to an industrial economy, there is no reason why we should hesitate to evolve such principle of liability merely because it has not been so done in england. we are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and nondelegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. the enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. since the persons harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous preparation of substance or any other related element that caused the harm must be held strictly liable for causing such harm as a part of the social cost for carrying on the hazardous or 844 inherently dangerous activity. if the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its over-heads. such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not. this principle is also sustainable on the ground that the enterprise alone has the resource to discover and guardagainst hazards or dangers and to provide warning against

potential hazards. we would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule in rylands v. fletcher (supra). we would also like to point out that the measure of compensation in the kind of cases referred to in the preceding paragraph must be co-related to the magnitude and capacity of the enterprise because such compensation must have a deferent effect. the larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise. since we are not deciding the question as to whether shriram is an authority within the meaning of article 12 so as to be subjected to the discipline of the fundamental right under article 21, we do not think it would be justified in setting up a special machinery for investigation of the claims for compensation made by those who allege that they have been the victims of oleum gas escape. but we would direct that delhi legal aid and advice board to take up the cases of all those who claim to have suffered on account of oleum gas and to file actions on their behalf in the appropriate court for claiming compensation against shriram. such actions claiming compensation may be filed by the delhi legal aid and advice board.within two months from 845 today and the delhi administration is directed to provide the necessary funds to the delhi legal aid and advice board for the purpose of filing and prosecuting such actions. the high court will nominate one or more judges as may be necessary for the purpose of trying such actions so that they may be expeditiously disposed of. so far as the issue of relocation and other issues are concerned the writ petition will come up for hearing on 3rd february, 1987. a.p.j. petition disposed 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--government as also every citizen undertake. mineral regulations act, 1948/minerals concession rules, 1949. limestone--quarrying of--grant of mining leases--deposits not to be exploited at cost of ecology and environmental consideration.

headnote: a letter received from the rural litigation and entitlement kendra dehradun was treated as a writ petition and notices issued. the main allegations therein related to unauthorised and illegal mining operations carried on in the mussoorie hills and the area around adversely affecting the ecology of the area and leading to environmental disturbances. in july, 1983 this court directed all fresh quarrying to be stopped. on 11.8.1983 this court appointed bhargav committee for inspecting all the mines except those belonging to the state of uttar pradesh and the union of india for determining whether the safety standards laid down in the mines act 1952 and the mines rules were being observed or not and whether there was any danger of landslides or was any hazard to individuals, cattle or agricultural lands by carrying on of mining operations. blasting operations in the area were also directed to be stopped. on the basis of the main report of the said committee this court on august 24, 1983 permitted removal of limestone already quarried. the committee directed closure of some of the mines and reported the defects appearing in other mines and called upon the mine owners to carry out rectifications. the bhargav committee classified the mines in a, b and c groups. so far as the mines in group c were concerned, the committee recommended that they should he closed down. as regards the mines in group a, the committee opined that the quarrying could he carried on without any environmental or ecological hazard. the committee also 642 recommended closure of b group mines permanently. the union government had also appointed a working group on mining of limestone quarries in dehradun and mussoorie area some time in. 1983 which was also headed by shri bhargav who was heading the committee appointed by this court. the working group submitted its report in september, 1983. after a comparative analysis of the two reports, the court found that the working group had taken these very mines for their study and had divided the mines into two categories, namely, class i and class ii. all the mines then categorised as class i were now included by the bhargav committee in group

a and the remaining mines now classified as group b and c were in class ii. this court had also appointed an expert committee headed by professor valdia to consider the problems of ecology and environment with reference to mining. professor valdia gave a separate report while the other two members gave a joint report. in its order of march 12, 1985, this court observed that it does not propose to rely on the report of professor valdia and it would not be safe to direct continuance or discontinuance of mining operations in limestone quarries on the basis of main boundary thrust. in 12th march, 1985 order this court directed that the limestone quarries located in sahasradhara block and placed in category il by the working group should be closed down, that the limestone quarries placed in category ii by the working group other than those which are placed in category b and c by the bhargav committee should also be closed down save and except for the limestone quarries covered by the mining leases numbers 31, 36 and 37 for which the same direction should be given as would be given in regard to the limestone quarries classified as category b in the bhargav committee report, and that 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 on unexpired leases in respect of any of these limestone quarries are pending, they too will stand dismissed. this court also directed closing down of the mines in a category located within the municipal limits of mussoorie. in regard to b class quarries of the bhargav committee report which featured in category ii of the working group report, as also of the a category quarries within the municipal limits, this court set up a committee headed by shri bandopadhyay, then secretary in the ministry of rural development and called upon the mine owners to submit a full and detailed scheme to that committee for its examination 643 and report to the court about the same. it was directed that until further orders from this court on the basis of the bandopadhyay committee report these mines shall not be worked. bandopadhyay committee submitted its report rejecting the schemes put forward by various lessees of the mines which have been closed down. on 20th november, 1986 this court granted time to the erstwhile lessees of mines to file objections to bandopadhyay committee report within six weeks and reply, if any, to be filed by the petitioners and the state within four weeks thereafter. the petitions were to come up for hearing in february, 1987. by order dated march 12, 1985 the court made a detailed order containing various directions reported in [(1985) 3 scr 169] and the reasons therefor were to follow later.

hon'ble mr. justice a.n. sen one of the members of the bench who heard these petitions before his retirement delivered judgment on 30th september 1985 expressing his views that it is not necessary to give any further reasons than those which are already stated in the order made on 12th march, 1985 because the broad reasons have been adequately set out in the order and it would be an unnecessary exercise to elaborate them. giving the reasons the court, held: 1. on a perusal of order dated 12th march, 1985 the other members of the bench are inclined to agree with the view taken by hon'ble mr. justice a.n. sen that the said order covered almost all the relevant aspects and touched upon every issue germane to the matter. [646e] 2. the question whether the schemes submitted by the mine lessees to bandopadhyay committee have been rightly rejected or not and whether under those schemes, the mine lessees can be allowed to carry on mining operations without in any way adversely affecting environment or ecological balance or causing hazard to individuals, cattle or agricultural lands still remain to be considered and would have to be decided in the light of the view taken by this court in the order dated 12th march, 1985 and the instant judgment. [650c-e] 3. preservation of the environment and keeping the ecological balance unaffected is a task which not only governments but also every citizen must undertake. it is a social obligation and every indian citizen 644 is reminded that it is his fundamental duty as enshrined in article 51 a(g) of the constitution. [653d-e] 4. consciousness for environmental protection is of recent origin. scientific development have made it possible and convenient for man to approach the places which are beyond his ken. the consequences of such interference with ecology and environment have now come to be realised. [652f-h] 5. government both at the centre and in the state-must realize and remain cognizent of the fact that the stake involved in the matter is large and far reaching. the evil consequences would last long. once that unwanted situation sets in, amends or repairs would not be possible. the greenery of india may perish and the thar desert may expand its limits. [652 e-f] 6. it has been commended earlier to the state of uttar pradesh as also to the union of india that afforestation activity may be carried out in the whole valley and the hills. such activity has been undertaken. this court is not oblivious of the fact that the natural resources have to be tapped for the purposes of social development but one cannot forget of the same time that tapping of resources have to be

done with requisite attention and care so that ecology and environment may not be affected in any serious way; there may not be any depletion of water resources and long term planning must be undertaken to keep up the national wealth. [653b-c] 7. it is for the government and the nation-and not for the court--to decide whether the deposits should be exploited at the cost of ecology and environmental considerations or the industrial requirement should be otherwise satisfied. it may be perhaps possible to exercise greater control and vigil over the operation and strike a balance between preservation and utilisation and that would indeed be a matter for an expert body to examine and on the basis of appropriate advice, government should take a policy decision and firmly implement the same. [652d-e] 8. in the instant case, the limestone quarries in the area are estimated to satisfy roughly three per cent of the country's demand. at the present rate of mining, the deposits are likely to last some 50 years. digging of limestone and allowing the waste to roll down or carried down by rain water to the lower levels has affected the villages as also the agricultural lands located below the hills. for removing the 645 limestones quarried from the mines, roads have been laid and for that purpose the hills have been interfered with; traffic hazard for the local population both animals and men--has increased. [652b] 9. in 1949 the minerals concession rules made by the central government under the minerals regulations act, 1948 authorised grant of mining leases and several applicants came forward for quarrying of high grade limestone. until 1962, extraction of limestone was permitted on temporary permits by the state govt. of uttar pradesh. [651 f-g]

judgment: original jurisdiction writ 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, shri narain, 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 mal petitioner in person. the judgment of the court was delivered by,

ranganath misra, j. on march 12, 1985, after hearing counsel and parties appearing in person at great length this court 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 exhaustively canvassed his factual as well as legal points of view but also because this is the first case of its kind in the country involving issues relating to environment and ecological balance and the questions arising for consideration are of grave moment and significance 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 reconciling 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 immediately 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 quarries, 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, on 30th september, 1985, he delivered a judgment expressing his views 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 unnecessary exercise to elaborate them." on a perusal of our order of the 12th march, 1985, we are inclined to agree with his view that the detailed order covered 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 and serious ramifications, we would like. to give a brief account of the manner in which the proceedings commenced, were carried on and are to be concluded. by an order dated 14.7.1983, this court directed a letter received from the rural litigation and entitlement kendra, dehra dun dated 2.7.1983 along with accompanying affidavits to be treated as a writ petition and issued notice to the state of uttar pradesh and the collector of dehra dun. the main allegation therein related to unauthorised and illegal mining operations carried on in the mussoorie hills and the area around adversely affecting the ecology' of the area and leading to environmental disturbances. later on, another application was directed to be tagged on and both the applications were dealt with together. several parties, mainly, mining lessees numbering more than 100, got impleaded either at the instance of the petitioners or on their own seeking. by a later order made in the month of july 1983, 647 this court directed all fresh quarrying to be stopped and called upon the district magistrate and the superintendent of police of dehra dun district to strictly enforce that order. on 11.8.1983, after heating the counsel for parties then appearing, this court appointed a committee for the purpose of inspecting all the mines other than those belonging to the state of uttar pradesh and the union of india, with a view to determining whether the safety standards laid down in the mines act, 1952, and the mines rules made thereunder were being observed or not and whether there was any danger of landslides on account of the quarrying operations particularly during the monsoon in any of the mines and if there was any other hazard to individuals, cattle or agricultural lands by reason of the carrying on of mining operations. blasting operations in the area were also directed to be stopped. this committee came to be known as the bhargava committee and its members were authorised to inspect the mines and give suitable directions. the committee made its main report on the basis whereof this court on august 24, 1983 permitted removal of limestone already quarried. the committee directed closure of some of the mines and reported the defects appearing in the other mines and called upon the mine owners to carry out rectifications. the bhargava committee classified the mines in the area into three groups being a, b and c. so far as the mines in group (c) were concerned, the committee was of the view that.they were not suitable for continuance and should, therefore, be closed down. so far as the question related to the mines in group a the committee was of the opinion that

the quarrying could be carried on without any environmental or ecological hazard. in regard to the b group mines, the bhargava committee opined that those may not be closed down permanently though it did notice the adverse impact of their mining activities. in its order of 12th march, 1985, this court took note of the fact that the union government had appointed a working group on mining of limestone quarries in dehra dun and mussoorie area some time in 1983 and the working group was also headed by shri bhargava who-was heading the committee appointed by this court. the other members of the working group were experts in the field and the working group had submitted the report in september 1983. a comparative analysis was made by this court in regard to the mines by referring to both the reports. the court found that the working group had taken these very mines for their study and had divided the mines into two categories--namely, class i and class ii. it transpires 648 that all the mines then categorised as class i were now included by the bhargava committee in group a and the remaining mines now classified as group b and c by the bhargava committee were in class ii. this court also, appointed an expert committee with professor valdia and two members mainly to consider the problems of ecology and environment with reference to mining. professor valdia gave a separate report while the other two members gave a joint report. dealing with the separate report furnished by professor valdia, this court in its of march 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 quarrying 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 operations-in limestone quarries on the basis of m.b.t." at the further. hearings after the said order, parties did not address arguments with reference to m.b.t. and we are of the view that this topic need not be dealt with by us: in 12th march 1985 order we directed that the limestone quarries located in sahasradhara block and ii by the working group 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 categories 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 limestone 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 limestone 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 a category located within the municipal limits of mussoorie. in regard to b class quarries of the bhargava committee report which featured in category ii of the working group report, as also of the a category quarries within the municipal limits, we set up a committee under the chairmanship of shri d. bandyopadhyay, then secretary in the ministry of rural development and called 'upon the mine owners to submit a full and detailed scheme to that committee which would examine the said scheme keeping in view the provisions of the law as also the expediency of allowing mining operations in the area and report to the court about the same. we have directed that until further orders from this court on the basis of bandopadhyay committee report these mines shall not be worked. it may be pointed out that the bandopadhyay committee has submitted its report rejecting the schemes put forward by various lessees of the mines which have been closed 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 the directions given by this court the question still remains to be considered whether the schemes submitted by the mine lessees to the bandopadhyaya committee under our order dated 12th march 1985 have been rightly rejected or not and whether under those schemes, the mine lessees can be allowed to carry on mining operations without in any way adversely affecting environment or ecological balance or causing hazard to individuals, cattle and agricultural lands. this question would, of course, have to be decided in the light of the view taken by us in our order dated 12th march 1985 and the present judgment. the himalayan range on the northern boundary of india is the most recent mountain range and yet it is the tallest. it has formed the northern boundary of the country and until recent times provided an impregnable protection to the indian sub-continent from the northern direction. this mountain range has been responsible to regulate the monsoons and consequently the rainfall in the indo-gangetic belt. the himalayas are the source for perennial rivers--the ganges, yamuna and brahmputra as also several other tributaries which have joined these main rivers. for thousands of years

nature has displaced its splendour through the lush green trees, innumerable springs and beautiful flowers. the himalayas has been the store house of herbs, shrubs and plants. deep forests on the lower hills have helped to generate congenial conditions for good rain. the doon valley has been an exquisite region bounded by the himalayanand the shivalik ranges and the ganga and yamuna rivers. the perennial water streams and the fertile soil have contributed not only to the growth of dense lush green forests but have helped the yield 651 of basmati rice and leeches. mussoorie, known as the queen of indian hill stations situated at a height of 5000 ft. above sea level and dehra doon located below the heights have turned out to be important places of tourist attraction, centres of education, research and defence complex. at present the valley is in danger because of erratic, irrational and uncontrolled quarrying of limestone. the landscape has been stripped bare of its verdant cover. green cover today is about 10 per cent of the area while from decades ago it was almost 70 per cent. the limestone belt has acted as the aquifer--to hold and release water perennially. all the important streams--song, baldi, rispana, kairuli and bhitarli originate from this area. reckless mining, careless disposal of the mine-debris and random blasting operations have disturbed the natural water system and the supply of water both for drinking and irrigation has substantially gone down: there is a growing apprehension that if mining is carried on in this process, a stage will come when there would be dearth of water in the entire belt. about a hundred years back around the middle of the last century, britishers penetrated into the area and developed mussoorie as a hill resort. the existence of huge limestone deposits came to be discovered by the beginning of this century. quarrying operations on small scale began. direct human interference in limestone quarrying seems to have begun in 1900. around 1904 all the quarries were declared as property of the government and as appears from the bandopadhyay report, in the year 1911 there existed only four limestone quarries. it had been working in the dehra dun area. around 1947, limestone quarrying took a new turn and a number of persons who had migrated from pakistan started working on limestone deposits by quarrying in private lands. in 1949, the minerals concession rules made by the central government under the minerals regulations act, 1948, authorised grant of mining leases and several applicants came forward for quarrying of high grade limestone. until 1962, extraction of limestone was permitted on temporary permits by the state government of uttar pradesh. in these proceedings we came across 105 mining leases

and these, as the various reports have indicated, had direct environmental impact on the area. it is said that the limestone deposits in this area are of high grade having upto 99.8 calcium carbonate. mining operations in these areas have led to cutting down of the forest. digging of 652 limestone andallowing the waste to roll down or carried down by rain water to the lower levels has affected the villages as also the agricultural lands located below the hills. the naturally formed streams have been blocked. blasting has disturbed the natural quiet, has shaken the soil, loosened the rocky structures and disturbed the entire ecology of the area. for removing the limestones quarried from the mines, roads have been laid and for that purpose the hills have been interfered with; traffic hazard for the local population--both animals and men--has increased. the limestone quarries in this area are estimated to satisfy roughly three per cent of the country's demand for such raw material and we were told during the heating that the tata iron and steel company is the largest consumer of this limestone for manufacturer of a special kind of steel. at the present rate of mining, the deposits are likely to last some 50 years. it is for the government and the nation-and not for the court--to decide whether the deposits should be exploited as the cost of ecology and environmental considerationsor the industrial requirement should be otherwise satisfied. it may be perhaps possible to exercise greater control and vigil over the operation and strike a balance between preservation and utilisation that would indeed be a matter for an expert body to examine and on the basis of appropriate advice, government should take a policy decision and firmly implement the same. governments--both at the centre and in the state--must realize and remain cognizant of the fact that the stake involved in the matter is large and far-reaching. the evil consequences would last long. once that unwanted situation sets in, amends or repairs would not be possible. the greenery of india, as some doubt, may perish and the thar desert may expand its limits. consciousness for environmental protection is of recent origin. the united nations conference on world environment held in stockholm in june 1972 and the follow-up action thereafter is spreading the awareness. over thousands of years men had been successfully exploiting the ecological system for his sustenance but with the growth of population the demand for land has increased and forest growth has been and is being cut down and man has started encroaching upon nature and its assets. scientific developments have made it possible and convenient for man to approach the places which were hitherto beyond his ken. the consequences of such interference with ecology and environment have now came to

be realised. it is necessary that the 653 himalayas and the forest growth on the mountain range should be left uninterfered with so that there may be sufficient quantity of rain. the top soil may be preserved without being eroded and the natural setting of the area may remain intact. we had commended earlier to the state of uttar pradesh as also to the union of india that afforestation activity may be carried out in the whole valley and the hills. we have been told that such activity has been undertaken. we are not oblivious of the fact that natural resources have got to be tapped for the purposes of social development but one cannot forget at the same time that tapping of resources have to be done with requisite attention and care so that ecology and environment may not be affected in any serious' way; there may not be any depletion of water resources and long-term planning must be undertaken to keep up the national wealth. it has always to be remembered that these are permanent assets of mankind and are not intended to be exhausted in one generation. we must place on record our appreciation of the steps taken by the rural litigation and entitlement kendra. but for this move, all that has happened perhaps may not have come. preservation of the environment and keeping the ecological balance unaffected is a task which not only governments but also every citizen must undertake. it is a social obligation and let us remind every indian citizen that it is his fundamental duty as enshrined in article 51 a(g) of the constitution. we are of the view that the kendra should be entitled to the costs of this proceeding. we assess the same at rs. 10.000 and direct the state of uttar pradesh to pay the same either 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 murtaza tulzapurkar, 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 rf rf e

1991 sc 101 1991 sc1117 1991 sc1902 1992 sc 789

(23,32,223,239,258) (5) (24) (13)

act: constitution of india, 1950 : article 32 - fundamental rights - estoppel - principle behind - no estoppel can be claimed against enforcement of fundamental rights. article 21, 19(1) (e) & (g) - pavement and slum dwellers forcible eviction and removal of their hutments under bombay municipal corporation act - whether deprives them of their means of livelihood and consequently right to life - right to life - meaning of - whether includes right to livelihood. article 32 & 21 - writ petition against procedurally ultra vires government action - whether maintainable. bombay municipal corporation act, 1888, s.314 - power to remove encroachments "without notice , when permissible section - whether ultra vires the constitution. administrative law - natural justice - audi alteram partem - notice - discretion to act with or without notice must be exercised reasonably, fairly and justly - natural justice - exclusion - how far permissible.

headnote: the petitioners in writ petitions nos. 4610-12/81 live on pavements and in slums in the city of bombay. some of the petitioners in the second batch of writ petitions nos.506879 of 1981, are residents of kamraj nagar, a basti or habitation which is alleged to have come into existence in about 1960-61, near the western express highway, bombay, while others are residing in structures constructed off the tulsi pipe road, mahim, bombay. the peoples union for civil liberties, committee for the protection of democratic rights and two journalists have also joined in the writ petitions. 52 some time in 1981, the respondents - state of maharashtra and bombay municipal corporation took a decision that all pavement dwellers and the slum or busti dwellers in the city of bombay will be evicted forcibly and deported to their respective places of origin or removed to places outside the city of bombay. pursuant to that decision, the pavement dwellings of some of the petitioners were in fact demolished by the bombay municipal corporation. some of the petitioners challenged the aforesaid decision of the respondents in the high court. the petitioners conceded

before the high court that they could not claim any fundamental right to put up huts on pavements or public roads, and also gave an undertaking to vacate the huts on or before october, 15, 1981. on such undertaking being given, the respondents agreed that the huts will not be demolished until october 15, 1981 and the writ petition was disposed of accordingly. in writ petitions filed under article 32, the petitioners challengedthe decision of the respondents to demolish the pavement dwellings and the slum hutments on the grounds (i) that evicting a pavement dweller from his habitat amounts to depriving him of his right to livelihood, which is comprehended in the right guaranteed by article 21 of the constitution that no person shall be deprived of his life except according to procedure established by law, (ii) that the impugned action of the state government and the bombay municipal corporation is violative of the provisions contained in article 19(1)(3), 19(1)(g) and 21 of the constitution, (iii) that the procedure prescribed by section 314 of the bombay municipal corporation act, 1888 for the removal of encroachments from pavements is arbitrary and unreasonable since, not only does it not provide for the giving of a notice before the removal of an encroachment but, expressly enables that the municipal commissioner may cause the encroachments to be removed without notice , (iv) that it is constitutionally impermissible to characterise the pavement dwellers as 'trespassers', because their occupation 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 welfare state, the dimension and true meaning of the constitutional mandate that property must subserve common good, the sweep of the right to reside and settle in any part of the territory of india which is guaranteed by article 19(1) (a) 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 hand and of the pedestrians on the other and, the larger question of ensuring equality before the law. 53 the respondents contested the writ petitions contending that (1) the petitioners must be estopped from contending in the supreme court that the huts constructed by them on the pavements cannot be demolished because of their right to livelihood, since they had conceded in the high court that they did not claim any fundamental right to put up huts on pavements or public roads and had given an undertaking to the high court that they will not obstruct the demolition of the huts after october 15, 1981.; (2) that no person has any legal right to encroach upon or to construct any structure on a foot-path, public street or on any place over which the

public has a right of way. the right conferred by article 19(1) (e) of the constitution to reside and settle in any part of india cannot be read to confer a licence to encroach and trespass upon public property; (3) that the provisions of sections 312, 313 and 314 of the bombay municipal corporation act do not violate the constitution, but are conceived in public interest and great care is taken by the authorities to ensure that no harassment is caused to any pavement dweller by enforcing the provisions; (4) that the huts near the western express highway, vile parle, bombay, were constructed on an accessory road which is a part of the highway itself, and were never regularised by the corporation and no registration numbers were assigned to them; (5) that no deprivation of life, either directly or indirectly is involved in the eviction of the slum and pavement dweller from public places. the municipal corporation is under an obligation under section 314 of the b.m.c. act to remove obstruction on pavements, public streets and other public places. the petitioners have not only violated the provisions of the bombay municipal corporation act, but they have contravened sections 111 and 115 of the bombay police act also. disposing of the writ petitions, ^ held: 1.1 the petitions are clearly maintainable under article 32 of the constitution. where the action taken against a citizen is procedurally ultra vires, the aggrieved party 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] 1 s.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 land but, it is the source and sustenance of all laws. its provisions are conceived in public interest and are intended to serve a public purpose. the doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs. if a person makes representation to another, on the faith of which the latter acts to is prejudice, the former cannot resile from the representation made by him. he must make it good. this principle can have noapplication to representations made regarding the assertion or enforcement of fundamental rights. [77 c-e] 1.3 fundamental rights are undoubtedly conferred by the constitution upon individuals which have to be asserted and en forced by them, if those rights are violated. but, the high purpose which the constitution seeks to achieve by conferment of fundamental rights is not only to benefit

individuals but to secure the larger interests of the community. the preamable of the constitution says that india is a democratic republic. it is in order to fulfil the promise of the preamble that fundamental rights are conferred by the constitution, some on citizens like those guaranteed by articles 15, 16, 19, 21 and 29 and, some on citizens and non-citizens alike, like those guaranteed by articles 14, 21, 22 and 25 of the constitution. no individual can barter away the freedoms conferred upon him by the constitution. a concession made by him in a proceedings, whether under a mis take of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceedings. such a concession, if enforced, would defeat the purpose of the constitution. [77 f-h, 78 a-b] the plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day-to day transactions. [78 d] in the instant case, notwithstanding the fact that the petitioners had conceded in the bombay high court that they have no fundamental right to construct hutments on pavements and that they will not object to their demolition after october 15, 1981, they are entitled to assert that any such action on the part of public authorities will be in violation of their fundamental rights. how far the argument regarding the existence and scope of the right claimed by the petitioners is well-founded is 55 another matter- but, the argument has to be examined despite the 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 article 21 is wide and far reaching. it does not mean merely that life 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 is but one aspect of the right to life. an equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. if the right to livelihood is not treated as a part of the constitutional right to live, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. and yet, such deprivation would not have to bein accordancewith the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. that, which alone

makes it possible to live, leave aside what makeslike livable, must be deemed to be an integral component of the right to life. [79 f-h, 80 a-b] 2.2 the principles contained in articles 39(a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. if there is an obligation upon the state to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. the state may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. but, any person who is deprived of his right to livelihood except according to just and fair procedure established by law, can challengethe deprivation as offending the right to life conferred by article 21. [80 gh, 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 of half of the city's population is at stake, the court must consult authentic empirical data compiled by agencies, official and non-official. it is by that process that the core of the problem can be reached and a satisfactory solution found. it would be unrealistic on the part of the court to reject the petitions on the ground that the petitioners have not adduced evidence to show that they will be rendered jobless if they are evicted from the slums and pavements. common sense, which is a cluster of life's experiences, is often more dependable than the rival facts presented by warring litigants. [82 b-c] in the instant case, it is clear from the various expert studies that one of the main reasons of the emergence and growth of squatter-settlements in big metropolitan cities like bombay, is the availability of job opportunities which are lacking in the rural sector. the undisputed fact that even after eviction, the squatters return to the cities affords proof of that position. these facts constitute empirical evidence to justify the conclusion that persons in the position of petitioners live in slums and on pavements because they have small jobs to nurse in the city and there is nowhere else to live. evidently, they choose a pavement or a slum in the vicinity of their place of work, the time otherwise taken in commuting and its cost being forbidding for their slender means. to lose the pavement or the slum is to lose the job. the conclusion, therefore, in terms of the constitutional phraseology is that the eviction of the petitioners will lead to deprivation of their livelihood and consequently to the deprivation of life. [82 d, 83 b-d]

3.1 the constitution does not put an absolute embargo on the deprivation of life or personal liberty. it is far too well settled to admit of any argument that the procedure prescribed by law for the deprivation of the right conferred by article 21 must be fair, just and reasonable. just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. it is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right, must conform to the means of justice and fair play. procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it. any action taken by a public authority which is invested with statutory powers has, therefore, to be tested by the application of two standards: the action must be 57 within the scope of the authority conferred by law and secondly, it must be reasonable. if any action, within the scope of the authority conferred by law, is found to be unreasonable, it must mean that the procedure established by law under which that action is taken is itself unreasonable. the substance of the law cannot be divorced from the procedure which it prescribes for, how reasonable the law is, 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 prescribed by section 314 is fair and reasonable, the court must first determine the true meaning of that section because, the meaning of the law determines its legality. considered in its proper perspective, section 314 is in the nature of an enabling provision and not of a compulsive character. it enables the commissioner in appropriate cases, to dispense with previous notice to persons who are likely to be affected by the proposed action. it does not require and, cannot be read to mean that, in total disregard of the relevant circumstances pertaining to a given situation, the commissioner must cause the removal of an encroachment without issuing previous notice. the primary rule of construction is that the language of the law must receive its plain and natural meaning. what section 314 provides is that the commissioner may, without notice, cause an encroachment to be removed. it does not command that the commissioner, shall without notice, cause an encroachment to be removed. putting it differently, section 314 confers on the commissioner the discretion to cause an encroachment to be removed with or without notice. that discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable. the

court must leen in favour of this interpretation because it helps sustain the validity of the law. reading section 314 as containing a command not to the issue before the removal of an encroachment will make the law invalid. [88 h, 89 a-d] 3.3 section 314 is so designed as to exclude the principles of natural justice by way of exception and not as a general rule. there are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place, the apprehended danger and so on. the ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. the hearing may be given individually or collectively, depending upon the facts 58 of each situation. a departure from this fundamental rule of natural justice may be presumed to have been intended by the legislature only in circumstances which warrant it. such circumstances must be known to exist, when so required, the burden being upon those who affirm their existence. [89 e-g] 3.4 the proposition that notice need not be given of a pro posed action because, there can possibly be no answer to it, is contrary to the well-recognized understanding of the real import of the rule of hearing. that proposition overlooks that justice must not only be done but must manifestly be seen tobe done and confuses one for the other. the appearance of injustice is the denial of justice. it is the dialogue with the person likely to be affected by the proposed action which meets the requirement that justice must also be seen to be done. procedural safeguards have their historical origins in the notion that conditions of personal freedom can be preserved only when there is some institutional check on arbitrary action on the part of the public authorities. the right to be heard has two facets, intrinsic and instrumental. the intrinsic value of that right consists in the 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 are made, an opportunity that expresses 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, hussainra khatoon, i v. home secret any state of bihar, patna [1979] 3 s.c.r. 532,537. husinara 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] 2 s.c.r. 913, 921-922. kasturi lal lakshmi redy v. state of jammu & kashmir [1980] 3 s.c.r.

1338, 1356, francis coralie muliin v. the administrator union territory of delhi [1981] 2 s.c.r. 516, 523-524, the influence of remedies on rights' (current legal problems [1953] volume 6), per frankfurter, j. in viterall v. seton 3 l. ed (2nd series) 1012, ramana dayaram shetty v. the international airport authority of india [1979] 3 s.c.r. 1014, 1032, referred to. in the instant case, the procedure prescribed by section 314 of the bombay municipal corporation act for removal of encroachments on the footpaths or pavements over which the public has the 59 right of passage or access, cannot be regarded as unreasonable, unfair or unjust. there is no static measure of reasonableness which can be applied to all situations alike. indeed, the question is this procedure reasonable?" implies and postulates the inquiry as to whether the procedure prescribed is reasonable in the circumstances of the case. francis corlie mullin v. the administrator, union territory of delhi [1981] 2 s.c.r. 516, 523-524, referred to. 3.5 footpaths or pavements are public properties which are intended to serve the convenience of the general public. they are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets. the main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with a reasonable measure of safety and security. that facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. [87 b-c] 3.6 no one has the right to make use of a public property for a private purpose without the requisite authorisation and, therefore, it is erroneous to contend that the pavement dwellers have the right to encroach upon pavements 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 but the limited right of using pavementsfor the purpose of passing and repassing. so long as a person does not transgress the limited purpose for which pavements are made, his use thereof is legitimate and lawful. but, if a person puts any public property to a use for which it is not intended and is not authorised so to use it, he becomes a trespasser. [87 d-f] putting up a dwelling on the pavement is a case which is clearly on one side of the line showing that it is an act of 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, ridge v. baldwin [1964] ac 40 at 68, john v. rees [1970] 1 chancery 345 at 402, annamunthodo v. oil fields workers' trade union [1961] 3 all e.r. 621 (h.l.) at 625, margarits fuentes at al v. tobert l. 60 shevin 32, l. ed. 2nd 556 at 574, chintepalli agency taluk arrack sales cooperative society ltd. v. secretary (food and agriculture) [1978] 1 s.c.r. 563 at 567, 569-70, relied upon. 4.1 there is no doubt that the petitioners are using pavements and other public properties for an unauthorised purpose. but, their intention or object in doing so is not to "commit an offence or intimidate insult or annoy any person", whichis the gist of the offence of "criminal trespass" under section 441 of the penal code. they manage to find a habitat in places which are mostly filthy or marshy, out of sheer helplessness. it is not as if they have a free choice to exercise as to whether to commit an encroachment and if so, where. the encroachment committed by these persons are involuntary acts in the sense that those acts are compelled by inevitable circumstances and are not guided by choice. trespass is a tort. but, even the law of torts requires that though a trespasser may be evicted forcibly, the force used must be no greater than what is reasonable and appropriate to the occasion and, what is even more important, the trespasser should be asked and given a reasonable opportunity to depart before force is used to expel him. [93 a-d] in the instant case, the court would have directed the municipal commissioner to afford an opportunity to the petitioners to show why the encroachments committed by them on pavements or footpaths should not be removed. but, the opportunity which was denied by the commissioner was granted by the supreme court in an ample measure, both sides having made their contentions elaborately on facts as well as on law. having considered those contentions the court is of the opinion that the commissioner was justified in directing the removal of the encroachments committed by the petitioners on pavements, footpaths or accessory roads. [94 e-f] 4.2 pavement dwellers who were censused or who happened to be censused in 1976 should be given, though not as a condition precedent to their removal, alternate pitches at malavani or, at such other convenient place as the government considers reasonable but not farther away in terms of distance; slum dwellers who were given identity cards and whose dwellings were numbered in the 1976 census must be given alternate sites for their resettlement; slums which have been in existence for a long time, say for twenty years or more, and which have been improved and developed will not be removed unless the land on which they stand or

the appurtenant land, is required for a public purpose, in which case, alternate sites of accommodation will be provided to 61 them; the 'low income scheme shelter programme' which is proposed to be undertaken with the aid of the world bank will be pursued earnestly; and the 'slum upgradation programme (sup)' under which basic amenities are to be given to slum dwellers will be implemented without delay. in order to minimise the hardship involved in any eviction, the slums, wherever situated, will not be removed until one month after the end of the current monsoon season, that is until october 31, 1985 and, thereafter, only in accordance with this judgment. if any slum is required to be removed before that date, parties may apply to the supreme court. pavement dwellers, whether censused or uncensused, will not be removed until the same date viz. october 31, 1984. [98 dh] 4.3 in so far as the kamraj nagar basti is concerned, there are over 400 hutments therein. since the basti is situated on a part of the road leading to the express highway, serious traffic hazards arise on account of the straying of the basti children on to the express highway, on which there is heavy vehicular traffic. the same criterion would apply to the kamaraj nagar basti as would apply to the dwellings constructed unauthorisedly on other roads and pavements 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, anand grover 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 and m.n. shroff for respondent nos. 2 & 3 in w.p. nos. 4610-12 of 1981 and for respondent nos. 1 and 3 in w.p. no. 5068-79 of 1981. k.k.singhvi, f.n.d. mollo and d.n. mishra for respondent 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 the plight of lakhs of persons who live on pavements and in slums in the city of bombay. they constitute nearly half the

population of 62 the city. the first group of petitions relates to pavement dwellers while the second group relates to both pavement and basti or slum dwellers. those who have made pavements their homes exist in the midst of filth and squalor, which has to be seen to believed. rabid dogs in search of stinking meat and cats in search of hungry rats keep them company. they cook and sleep where they ease, for no conveniences are available to them. their daughters, come of age, bathe under the nosy gaze of passers by, unmindful of the feminine sense of bashfulness. the cooking and washing over, women pick lice from each other's hair. the boys beg. menfolk, without occupation, snatch chains with the connivance of the defenders 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 court to ask for a judgment that they cannot be evicted from their squalid shelters without being offered alternative accommodation. they rely for their rights on article 21 of the constitution which guarantees that no person shall be deprived of his life except according to procedure established by law. they do not contend that they have a right to live on the pavements. their contention is that they have a right to live, a right which cannot be exercised without the means of livelihood. they have no option but to flock to big cities like bombay, which provide the means of bare subsistence. they only choose a pavement or a slum which is nearest to their place of work. in a word, their plea is that the right to life is illusory without a right to the protection of the means by which alone life can be lived. and, the right to life can only be taken away or abridged by a procedure established by law, which has to be fair and reasonable, not fanciful or arbitrary such- as is prescribed by the bombay municipal corporation act or the bombay police act. they also rely upon their right to reside and settle in any part of the country which is guaranteed by article 19(1)(e). the three petitioners in the group of writ petitions 4610 4612 of 1981 are a journalist and two pavement dwellers. one of these two pavement dwellers, p. angamuthu, migrated from salem, tamil nadu, to bombay in the year 1961 in search of employment. he was a landless labourer in his home town but he was rendered jobless because of drought. he found a job in a chemical company at dahisar, bombay, on a daily wage of rs-23 per day. a slum-lord extorted a sum of rs.2,50 from him in exchange of a shelter of plastic sheets and canvas on a pavement on the western express highway, bombay. he lives in it with his wife and three daughters who are 16, 13 and 5 years of age. 63

the second of the two pavement dwellers came to bombay in 1969 from sangamner, district ahmednagar, maharashtra. he was a cobbler earning 7 to 8 rupees a day, but his so-called house in the village fell down. he got employment in bombay as a badli kamgar for rs. 350 per month. he was lucky in being able to obtain a "dwelling house" on a pavement at tulsiwadi by paying rs. 300 to a goonda of the locality. the bamboos and the plastic sheets cost him rs. 700. on july 13, 1981 the then chief minister of maharashtra, shri a.r. antulay, made an announcement which was given wide publicity by the newspapers that all pavement dwellers in the city of bombay will be evicted forcibly and deported to their respective places of origin or removed to places outside the city of bombay. the chief minister directed the commissioner of police to provide the necessary assistance to respondent 1, the bombay municipal corporation, to demolish the pavement dwellings and deport the pavement dwellers. the apparent justification which the chief minister gave to his announcement was : "it is a very inhuman existence. these structures are flimsy and open to the elements. during the monsoon there is no way these people can live comfortably." on july 23, 1981 the pavement dwelling of p. angamuthu was demolished by the officers of the bombay municipal corporation. he and the members of his family were put in a bus for salem. his wife and daughters stayed back in salem but he returned to bombay in search of a job and got into a pavement house once again. the dwelling of the other petitioner was demolished even earlier, in january 1980 but he rebuilt it. it is like a game of hide and seek. the corporation removes the ramshackle shelters on the pavements with the aid of police, the pavement dwellers flee to less conspicuous pavements in by-lanes and, when the officials are gone, they return to their old habitats. their main attachment to those places is the nearness thereof to their place of work. in the other batch of writ petitions nos. 5068-79 of 1981, which was heard along with the petitions relating to pavement dwellers, there are 12 petitioners. the first five of these are residents of kamraj nagar, a basti or habitation which is alleged to have come into existence in about 1960-61, near the western express highway, bombay. the next four petitioners were residing in structures constructed off the tulsi pipe road, 64 mahim, bombay. petitioner no. 10 is the peoples' union of civil liberties, petitioner no. 11 is the committee for the protection of democratic rights while petitioner no. 12 is a journalist. the case of the petitioners in the kamraj nagar group of cases is that there are over 500 hutments in this

particular basti which was built in about 1960 by persons who were employed by a construction company engaged in laying water pipes along the western express highway. the residents of kamraj nagar are municipal employees, factory or hotel workers, construction supervisors and so on. the residents of the tulsi pipe road hutments claim that they have been living there for 10 to 15 years and that, they are engaged in various small trades. on hearing about the chief minister's announcement, they filed a writ petition in the high court of bombay for an order of injunction restraining the officers of the state government and the bombay municipal corporation from implementing the directive of the chief minister. the high court granted an ad-interim injunction to be in force until july 21, 1981. on that date, respondents agreed that the huts will not be demolished until october 15, 1981. however, it is alleged, on july 23, 1981, the petitioners were huddled into state transport buses for being deported out of bombay. two infants were born during the deportation but that was set off by the death of two others. the decision of the respondents to demolish the huts is challenged by the petitionerson the ground that it is violative of articles 19 and 21 of the constitution. the petitioners also ask for a declaration that the provisions of sections 312, 313 and 314 of the bombay municipal corporation act, 1888 are in valid as violating articles 14, 19 and 21 of the constitution. the reliefs asked for in the two groups of writ petitions are that the respondents should be directed to withdraw the decision to demolish the pavement dwellings and the slum hutments and, where they are already demolished, to restore possession of the sites to the former occupants. on behalf of the government of maharashtra, a counteraffidavit has been filed by v.s.munje, under secretary in the department of housing. the counter-affidavit meets the case of the petitioners thus. the government of maharashtra neither proposed to deport any payment dweller out of the city of bombay nor did it, in fact, deport anyone. such of the pavement dwellers, who expressed their desire in writing, that they wanted to return to their home towns and who sought assistance from the government in 65 that behalf were offered transport facilities up to the nearest rail head and were also paid railway fare or bus fare and incidental expenses for the onward journey. the government of maharashtra had issued instructions to its officers to visit specific pavements on july 23, 1981 and to ensure that no harassment was caused to any pavement dweller. out of 10,000 hutment-dwellers who were likely to be affected by the proposed demolition of hutments constructed on the pavements, only 1024 persons opted to

avail of the transport facility and the payment of incidental expenses. the counter-affidavit says that no person has any legal right to encroach upon or to construct any structure on a footpath, public street or on any place over which the public has a right of way. numerous hazards of health and safety arise if action is not taken to remove such encroachments. since, no civic amenities can be provided on the pavements, the pavement dwellers use pavements or adjoining streets for easing themselves. apart from this, some of the pavement dwellers indulge in anti-social acts like chain-snatching, illicit distillation of liquor and prostitution. the lack of proper environment leads to increased criminal tendencies, resulting in more crime in the cities. it is, therefore, in public interest that public places like pavements and paths are not encroached upon. the government of maharashtra provides housing assistance to the weaker sections of the society like landless labourers and persons belonging to low income groups, within the frame work of its planned policy of the economic and social development of the state. any allocation for housing has to be made after balancing the conflicting demands from various priority sectors. the paucity of resources is a restraining factor on the ability of the state to deal effectively with the question of providing housing to the weaker sections of the society. the government of maharashtra has issued policy directives that 75 percent of the housing programme should be allocated to the lower income groups and the weaker sections of the society. one of the objects of the state's planning policy is to ensure that the influx of population from the rural to the urban areas is reduced in the interest of a proper and balanced social and economic development of the state and of the country. this is proposed to be achieved by reversing the rate of growth of metropolitan cities and by increasing the rate of growth of small and medium towns. the state government has therefore, devised an employment guarantee scheme to enable the rural population, which remains unemployed or underemployed at certain periods of the year, to get employment during such periods. a sum 66 of about rs. 180 crores was spent on that scheme during the years 1979-80 and 1980-81. on october 2, 1980 the state government launched two additional schemes for providing employment opportunities for those who cannot get work due to old age or physical infirmities. the state government has also launched a scheme for providing self-employment opportunities under the 'sanjay gandhi niradhar anudan yojana'. a monthly pension of rs. 60 is paid to those who are too old to work or are physically handicapped. in this scheme, about 1,56,943 persons have been identified and a sum of rs. 2.25 crores was disbursed. under another scheme

called 'sanjay gandhi swawalamban yojana', interest-free loans, subject to a maximum of rs. 2,500, were being given to persons desiring to engage themselves in gainful employment of their own. about 1,75,000 persons benefited under this scheme, to whom a total sum of rs. 5.82 crores was disbursed by way of loan. in short, the objective of the state government was to place greater emphasis on providing infrastructural facilities to small and medium towns and to equip them so that they could act as growth and service centres for the rural hinterland. the phenomenon of poverty which is common to all developing countries has to be tackled on an all-india basis by making the gains of development available to all sections of the society through a 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 areas being a reflection of the colossal poverty existing in the rural areas. the rural poverty cannot, however, be eliminated by increasing the pressure of population on metropolitan cities like bombay. the problem of poverty has to be tackled by changing the structure of the society in which there will be a more equitable distribution of income and greater generation of wealth. the state government has stepped up the rate of construction of tenements for the weaker sections of the society from 2500 to 9500 per annum. it is denied in the counter-affidavit that the provisions of sections 312, 313 and 314 of the bombay municipal corporation act violate the constitution. those provisions are conceived in public interest and great care is taken by the authorities to ensure that no harassment is causedto any pavement dweller while enforcing the provisions of those sections. the decision to remove such encroachments was taken by the government with specific instructions that every reasonable precaution ought to be taken to cause the least possible inconvenience to the pavement dwellers. what is more important, so the counteraffidavit says, the government of maharashtra had decided that, on the basis of 67 the census carried out in 1976, pavement dwellers who would be uprooted should be offered alternate developed pitches at malvani where they could construct their own hutments. according to that census, about 2,500 pavement hutments only were then in existence. the counter-affidavit of the state government describes the various steps taken by the central government under the five year plan of 1978-83, in regard to the housing programmes. the plan shows that the inadequacies of housing policies in india have both quantitative and qualitative dimensions. the total investment in housing shall have to be of the magnitude of rs. 2790 crores, if the housing problem

had

has to be tackled even partially. on behalf of the bombay municipal corporation, a counter-affidavit has been filed by shri d.m. sukthankar, municipal commissioner of greater bombay. that affidavit shows that he had visited the pavements on the tulsi pipe road (senapati bapat marg) and the western express high way, vile parle (east), bombay. on july 23, 1981, certain hutments on these pavements were demolished under section 314 of the bombay municipal corporation act. no prior notice of demolition was given since the section does not provide for such notice. the affidavit denies that the intense speculation in land prices, as alleged, owes its origin to the high rise buildings which have come up in the city of bombay. it is also denied that there are vast vacant pieces of land in the city which can be utilised for housing the pavement dwellers. section 61 of the b.m.c. act lays down the obligatory duties of the corporation. under clauses (c) and (d) of the said section, it is the duty of the corporation to remove excrementitious matters, refuse and rubbish and to take measures for abatement of every kind of nuisance. under clause(g) of that section, the corporation is under an obligation to take measures for preventing and checking the spread of dangerous diseases. under clause (o), obstructions and projections in or upon public streets and other public places have to be removed. section 63 (k) empowers the corporation to take measures to promote public safety, health or convenience, not specifically provided otherwise. the object of sections 312 to 314 is to keep the pavements and foot-paths free from encroachment so that the pedestrians do not have to make use of the streets on which there is heavy vehicular traffic. the pavement dwellers answer the nature's call, bathe, cook and wash their clothes and utensils on the foot-paths and on parts of public streets adjoining the foot68 paths. their encroachment creates serious impediments in repairing the roads, foot-paths and drains. the refusal to allow the petitioners and other persons similarly situated to use foot-paths as their abodes is, therefore, not unreasonable, unfair, or unlawful. the basic civic amenities, such as drainage, water and sanitation, cannot possibly be provided to the pavement dwellers. since the pavements are encroached upon, pedestrians are compelled to walk on the streets, thereby increasing the risk of traffic accidents and impeding the free flow of vehicular movement. the municipal commissioner disputes in his counter-affidavit that any fundamental right of the petitioners is infringed by removal of the encroachment committed by them on public property, especially the pavements. in this behalf, reliance is placed upon an order dated july 27, 1981 of lentin j. of the bombay high court, which recordsthat counsel for the

petitioners had stated expressly on july 24, 1981, that no fundamental right could be claimed to put up a dwelling on public foot-paths and public roads. the municipal commissioner has stated in his counteraffidavit in writ petitions 5068-79 of 1981 that the huts near the western express highway, vile parle, bombay, were constructed on an accessory road which is a part of the highway itself. these hutments were never regularised by the corporation and no registration numbers were assigned to them. in answer to the municipal commissioner's counteraffidavit, petitioner no. 12. prafulla chandra bidwai who is a journalist, has filed a rejoinder asserting that kamraj nagar is not located on a foot-path or a pavement. according to him, kamraj nagar is a basti off the highway, in which the huts are numbered, the record in relation to which is maintained by the road development department and the bombay municipal corporation.contending that petitioners 1 to 5 have been residing inthe said basti for over 20 years, he reiterates that the public has no right of way in or over the kamraj nagar. he also disputes that the huts on the foot-paths cause any obstruction to the pedestrians or to the vehicular traffic or that those huts are a source of nuisance or danger to public health and safety. his case in paragraph 21 of his reply-affidavit seems to be that since, the foot-paths are in the occupationof pavement dwellers for a long time, foot-paths have ceased to be foot-paths. he says that the pavement dwellers and the slum or basti dwellers, who number about 47.7 lakhs, constitute about 50 per cent of the total population of greater bombay, that they supply the major work force 69 for 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 the economic life of the city and that, therefore, it is unfair and unreasonable on the part of the state government and the municipal corporation to destroy their homes and deport them : a home is a home wherever it is. the main theme of the reply-affidavit is that" the slum dwellers are the sine qua non of the city. they are entitled to a quid pro quo. "it is conceded expressly that the petitioners do not claim any fundamental right to live on the pavements. the right claimed by them is the right to live, at least to exist. only two more pleadings need be referred to, one of which is an affidavit of shri anil v. gokak, administrator of maharashtra housing and areas development authority, bombay, who was then holding charge of the post of secretary, department of housing. he filed an affidavit in answer to an application for the modification of an interim order which was passed by this court on october 19, 1981. he

says that the legislature of maharashtra had passed the maharashtra vacant land (prohibition of unauthorised occupation and summary eviction) act, 1975 in pursuance of which the government had decided to compile a list of slums which were required to be removed in public interest. it was also decided that after a spot inspection, 500 acres of vacant land in and near the bombay suburban district should be allocated for re-settlement of the hutment dwellers who were removed from the slums. a task force was constituted by the government for the purpose of carrying out a census of the hutments standing on lands belonging to the government of the maharashtra, the bombay municipal corporation and the bombay housing board. a census was, accordingly, carried out on january 4, 1976 by deploying about 7,000 persons to enumerate the slum dwellers spread over approximately 850 colonies all over bombay. about 67 per cent of the hutment dwellers from a total of about 2,60,000 hutments produced photographs of the heads of their families, on the basis of which hutments were numbered and their occupants were given identity cards. it was decided that slums which were in existence for a long time and which were improved and developed would not normally be demolished unless the land was required for a public purpose. in the event that the land was so required, the policy of the state government was to provide alternative accommodation to the slum dwellers who were censused and possessed identity cards. this is borne out by a circular of the government dated february 4, 1976 (no. sis 1176/d. 41). shri gokak says that the state government has 70 issued instructions directing, inter alia, that "action to remove the slums excepting those which are on the foot-paths or roads or which are new or casually located should not, therefore, be taken without obtaining approval from the government to the proposal for the removal of such slums and their rehabilitation." since, it was never the policy of the government to encourage construction of hutments on footpaths, pavements or other places over which the public has a right of way, no census of such hutments was ever intended to be conducted. but, sometime in july 1981, when the government officers made an effort to ascertain the magnitude of the problem of evicting pavement dwellers, it was discovered that some persons occupying pavements, carried census cards of 1976. the government then decided to allot pitches to such occupants of pavements. the only other pleading which deserves to be noticed is the affidavit of the journalist petitioner, ms. olga tellis, in reply to the counter-affidavit of the government of maharashtra. according to her, one of the important reasons of the emergence and growth of squatter-settlements in the metropolitan 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 region is not high according to the town planning standards. difficulties are caused by the fact that the population is not evenly distributed over the region, in a planned manner. new constructions of commercial premises, small-scale industries and entertainment houses in the heart of the city, have been permitted by the government of maharashtra contrary to law and even residentialpremises have been allowed to be converted intocommercial premises. this, coupled with the fact that the state government has not shifted its main offices to the northern region of the city, has led to the concentration of the population in the southern region due to the availability of job opportunities in that region. unless economic and leisure activity is decentralised, it would be impossible to find a solution to the problems arising out of the growth of squatter colonies. even if squatters are evicted, they come back to the city because, it is there that job opportunities are available. the alternate pitches provided to the displaced pavementdwellers on the basis of the so-called 1976 census, are not an effective means totheir resettlement because, those sites are situated far away from the malad railway station involving cost and time which are beyond their means. there are no facilities available at malavant like schools and hospitals, which drives them back to the stranglehold of the city. the permission granted to the 71 'national centre of performing arts' to construct an auditorium at the nariman point, backbay reclamation, is cited as a 'gross' instance of the short-sighted, suicidal and discriminatory policy of the government of maharashtra. it is as if the sea is reclaimed for the construction of business 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 is that, as a result of this imbalance, there are not enough jobs available in the northern tip of the city. the improvement of living conditions in the slums and the regional distribution of job opportunities are the only viable remedies for relieving congestion of the population in the centre of the city. the increase allowed by the state government in the floor space index over and above 1.33, has led to a further concentration of population in the centre of the city. in the matter of housing, according toms. tellis' affidavit, government has not put to the best use the finances and resources available to it. there is a wide gap between the demand and supply in the area of housing which was in the neighbourhood of forty five thousand units in the decade 1971-81. a huge amount of hundreds of crores of

rupees shall have to be found by the state government every year during the period of the sixth plan if adequate provision for housing is at all to be made. the urban land ceiling act has not achieved its desired objective nor has it been properly implemented. the employment schemes of the state government are like a drop in the ocean and no steps are taken for increasing job opportunities in the rural sector. the neglect of health, education transport and communication in that sector drives the rural folk to the cities, not only in search of a living but in search of the basic amenities of life. the allegation of the state government regarding the criminal propensities of the pavement dwellers is stoutly denied in the reply-affidavit and it is said to be contrary to the studies of many experts. finally, it is stated that it is no longer the objective of the sixth plan to reverse the rate of growth of metropolitan cities. the objective of the earlier plan (1978-83) has undergone a significant change and the target now is to ensure the growth of large metropolitan cities in a planned manner. the affidavit claims that there is adequate land in the bombay metropolitan region to absorb a population of 20 million people, which is expected to be reached by the year 2000 a.d. the arguments advanced before us by ms. indira jaisingh, mr. v.m. tarkunde and mr. ram jethmalani cover a wide range but 72 the main thrust of the petitioners' case is that evicting a pavement dweller or slum dweller from his habitat amounts to depriving of his right to livelihood, which is comprehended in the right guaranteed by article 21 of the constitution that no person shall be deprived of his life except according to procedure established by law. the question of the guarantee of personal liberty contained in article 21 does not arise and was not raised before us. counsel for the petitioners contended that the court must determine in these petitions the content of the right to life, the function of property in a welfare state, the dimension and true meaning of the constitutional mandate that property must subserve common good, the sweep of the right to reside and settle in any part of the territory of india which is guaranteed by article 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 hand and of the pedestrians on the other and, the larger question of ensuring equality before the law. it is contended that it is the responsibility of the courts to reduce inequalities and social imbalances by striking down statutes which perpetuate them. one of the grievances of the petitioners against the bombay municipal corporation act, 1888 is that it is a century old antiquated piece of legislation passed

in an era when pavement dwellers and slum dwellers did not exist and the consciousness of the modern notion of a welfare state was not present to the mind of the colonial legislature. according to the petitioners, connectedwith these issues and yet independent of them, is the question of the role of the court in setting the tone of values in a democratic society. the argument which bears on the provisions of article 21 is elaborated by saying that the eviction of pavement and slum dweller will lead, in a vicious circle, to the deprivation of their employment, their livelihood and, therefore, to the right to life. our attention is drawn in this behalf to an extract from the judgment of douglas j in baksey v. board of regents, 347 m.d. 442 (1954) in which the learned 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." 73 the right to live and the right to work are integrated and interdependent and, therefore, if a person is deprived of his job as a result of his eviction from a slum or a pavement, his very right to life is put in jeopardy. it is urged that the economic compulsions under which these persons are forced tolive in slums or on pavements impart to their occupation the character of a fundamental right. it is further urged by the petitioners that it is constitutionally impermissible to characterise the pavement dwellers as "trespassers" because, their occupation of pavements arises from economic compulsions. the state is under an obligation to provide to the citizens the necessities of life and, in appropriate cases, the courts have the power to issue order directing the state, by affirmative action, to promote and protect the right to life. the instant situation is one of crisis, which compels the use of public property for the purpose of survival and sustenance. social commitment is the quintessence of our constitution which defines the conditions under which liberty has to be enjoyed and justice has to be administered. therefore, directive principles, which are fundamental in the governance of the country, must serve as a beacon light to the interpretation of the constitutional provisions. viewed in this context, it is urged, the impugned action of the state government and the bombay municipal corporation is violative of the provisions contained in articles 19(1)(e), 19(1)(g) and 21 of the constitution. the paucity of financial resources of the state is no excuse for defeating the fundamental rights of the citizens.

in support of this argument, reliance is placed by the petitioners on what is described as the 'factual context'. a publication dated january 1982 of the planning commission, government of india, namely, 'the report of the expert group of programmes for the alleviation of poverty', is relied on as showing the high incidence of poverty in india. that report shows that in 1977-78, 48% of the population lived below the poverty line, which means that out of a population of 303 million who lived below the poverty line, 252 million belonged to the rural areas. in 1979-80 another 8 million people from the rural areas were found to live below the poverty line. a government of maharashtra publication "budget and the new 20 point socio-economic programme" estimates that there are about 45 lakh families in rural areas of maharashtra who live below the poverty line. another 40% was in the periphery of that area. one of the major causes of the persistent rural poverty of landless labourers, 74 marginal farmers, shepherds, physically handicapped persons and others is the extremely narrow base of production available to the majority of the rural population. the average agricultural holding of a farmer is 0.4 hectares, which is hardly adequate to enable him to make both ends meet. landlesslabourers have no resource base at all and they constitute the hard-core of poverty. due to economic pressures and lack ofemployment opportunities, the rural population is forced to migrate to urban areas in search of employment. 'the economic survey of maharashtra' published by the state government shows that the bulk of public investment was made in the cities of bombay, pune and thane, which created employment opportunities attracting the starving rural population to those cities. the slum census conducted by the government of maharashtra in 1976 shows that 79% of the slum-dwellers belonged to the low income group with a monthly income below rs.600. the study conducted by p. ramachandran of the tata institute of social sciences shows that in 1972,91% of the pavement dwellers had a monthly income of less than rs.200. the cost of obtaining any kind of shelter in bombay is beyond the means of a pavement dweller. the principal public housing sectors in maharashtra, namely, the maharashtra housing and area development agency (mhada) and the city and industrial development corporation of maharashtra ltd. (cidco) have been able to construct only 3000 and 1000 units respectively as against the annualneed of 60,000 units. in any event, the cost of housing provided even by these public sector agencies is beyond the means of the slum and pavementdwellers. under the urban land (ceiling and regulation) act 1975, private land owners and holders are given facility to provide housing to the economically weaker sections of the

society at a stipulated price of rs.90 per sq.ft., which also is beyond the means of the slum and pavement-dwellers. the reigning market price of houses in bombay varies from rs.150 per sq.ft. outside bombay to rs.2000 per sq.ft. in the centre of the city. the petitioners dispute the contention of the respondents regarding the non-availability of vacant land for allotment to houseless persons. according to them, about 20,000 hectares of unencumbered land is lying vacant in bombay. the urban land (ceiling and regulation) act,1975 has failed to achieve its object as is evident from the fact that in bombay, 5% of the land-holders own 55% of the land. even though 2952.83 hectares of urban land is available for being acquired by the state government as being in excess of the permissible ceiling area, only 41.51% of this excess land was, so far, acquired. thus, the 75 reason why there are homeless people in bombay is not that there is no land on which homes can be built for them but, that the planning policy of the state government permits high density areas to develop with vast tracts of land lying vacant. the pavement-dwellers and the slum-dwellers who constitute 50% of the population of bombay, occupy only 25% of the city's residential land. it is in these circumstances that out of sheer necessity for a bare existence, the petitioners are driven to occupy the pavements and slums. they live in bombay because they are employed in bombay and they live on pavements because there is no other place where they can live. this is the factual context in which the petitioners claim the right under articles 19(1)(e) and (g) and article 21 of the constitution. the petitioners challenge the vires of section 314 read with sections 312 and 313 of the bombay municipal corporation act, which empowers the municipal commissioner to remove, without notice, any object or structure or fixture which is set up in or upon any street. it is contended that, in the first place, section 314 does not authorise the demolition of a dwelling even on a pavement and secondly, that a provision which allows the demolition of a dwelling without notice is not just, fair or reasonable. such a provision vests arbitrary and unguided power in the commissioner. it also offends against the guarantee of equality because, it makes an unjustified discrimination between pavement dwellers on the one hand and pedestrians on the other. if the pedestrians are entitled to use the pavements for passing and repassing, so are pavement dwellers entitled to use pavements for dwelling upon them. so the argument goes. apart from this, it is urged, the restrictions which are sought to be imposed by the respondents on the use of pavements by pavement-dwellers are not reasonable. a state which has failed in its

the

constitutional obligation to usher a socialistic society has no right to evict slum and pavement-dwellers who constitute half of the city's population. therefore, sections 312,313 and 314 of the b.m.c. act must either be read down or struck down. according to the learned attorney-general, mr. k.k.singhvi and mr. shankaranarayanan who appear for respondents, no one has a fundamental right, whatever be the compulsion, tosquat on or construct a dwelling on a pavement, public road or any other place to which the public has a right of access. the right conferred by article 19(1)(e) of the constitution to reside and settle in any part of india cannot be read to confer a licence to encroach and trespass upon public property. sections 3(w) and 76 (x) of the b.m.c. act define "street" and "public street" to include a highway, a footway or a passage on which the public has the right of passage or access. under section 289(1) of the act, all pavements and public streets vest in the corporation and are under the control of the commissioner. in so far as article 21 is concerned, no deprivation of life, either directly or indirectly, is involved in the eviction of the slum and pavement-dwellers from public places. the municipal corporation is under an obligation under section 314 of the b.m.c. act to remove obstructions on pavements, public streets and other public places. the corporation does not even possess the power to permit any person to occupy a pavement or a public place on a permanent or quasi-permanent basis. the petitioners have not only violated the provisions of the b.m.c. act, but they have contravened sections 111 and 115 of the bombay police act also. these sections prevent a person from obstructing any other person in the latter's use of a street or public place or from committing a nuisance. section 117 of the police act prescribes punishment for the violation of these sections. we will first deal with the preliminary objection raised by mr. k.k.singhvi, who appears on behalf of the bombay municipal corporation, that the petitioners are estopped from contending that their huts cannot be demolished by reason of the fundamental rights claimed by them. it appears that a writ petition, no. 986 of 1981, was filed on the original side of the bombay high court by and on behalf of the pavement dwellers claiming reliefs similar to those claimed in the instant batch of writ petitions. a learned single judge granted an ad-interim injunction restraining the respondents from demolishing the huts and from evicting the pavement dwellers. when the petition came up for hearing on july 27, 1981, counsel for the petitioners made a statement in answer to a query from the court, that no fundamental right could be claimed to put up dwellings on

the

foot-paths or public roads. upon this statement, respondents agreed not to demolish until october 15, 1981, huts which were constructed on the pavements or public roads prior to july 23,1981. on august 4, 1981, a written undertaking was given by the petitioners agreeing, inter alia, to vacate the huts on or before october 15, 1981 and not to obstruct the public authorities from demolishing them. counsel appearing for the state of maharashtra responded to the petitioners' undertaking by giving an undertaking on behalf of the state government that, until october 15, 1981, no pavement dweller will be removed out of the city against his wish. on the basis of these undertakings, the learned judge disposed of the 77 writ petition without passing any further orders. the contention of the bombay municipal corporation is that since the pavement dwellers had conceded in the high court that they did not claim any fundamental right to put up huts on pavements or public roads and since they had given an undertaking to the high court that they will not obstruct the demolition of the huts after october 15, 1981 they are estopped from contending in this court that the huts constructed bythem on the pavements cannot be demolished because of their right to livelihood, which is comprehended within the fundamental right to life guaranteed by article 21 of the constitution. it is not possible to accept the contention that the petitioners are estopped from setting up their fundamental rights as a defence to the demolition of the huts put up by them on pavements or parts of public roads. there can be no estoppel against the constitution. the constitution is not only the paramount law of the land but, it is the source and substance of all laws. its provisions are conceived in public interest and are intended to serve a public purpose. the doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs. if a person makes a representation to another, on the faith of which the latter acts to his prejudice, the former cannot resile from the representation made by him. he must make it good. this principle can have no application to representations made regarding the assertion or enforcement of fundamental rights. for example, the concession made by a person that he does not possess and would not exercise his right to free speech and expression or the right to move freely throughout the territory of india cannot deprive him of those constitutional rights, any more than a concession that a person has no right of personal liberty can justify his detention contrary to the terms of article 22 of the constitution. fundamental rights are undoubtedly conferred by the constitution upon individuals which have to be asserted and enforced by them,

if those rights are violated. but, the high purpose which the constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger interests of the community. the preamble of the constitution says that india is a democratic republic. it is in order to fulfil the promise of the preamble that fundamental rights are conferred by the constitution, some on citizens like those guaranteed by articles 15,16,19,21 and 29, and some on citizens and noncitizens alike, like those guaranteed by articles 78 14,21,22 and 25 of the constitution. no individual can barter away the freedoms conferred upon him by the constitution. a concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. such a concession, if enforced, would defeat the purpose of the constitution. were the argument of estoppel valid, an all-powerful state could easily tempt an individual to forego his precious personal freedoms on promise of transitory, immediate benefits. therefore, notwithstanding the fact that the petitioners had conceded in the bombay high court that they have no fundamental right to construct hutments on pavements and that they will not object to their demolition after october 15, 1981, they are entitled to assert that any such action on the part of public authorities will be in violation of their fundamental rights. how far the argument regarding the existence and scope of the right claimed by the petitioners is wellfounded is another matter. but, the argument has to be examined despite the concession. the plea of estoppel is closely connected with the plea of waiver, the object of both being to ensure bona fides in day-today transactions. in basheshar nath v. the commissioner of income tax delhi, [1959] supp. 1 s.c.r. 528 a constitution bench of this court considered the question whether the fundamental rights conferred by the constitution can be waived. two members of the bench (das c.j. and kapoor j.) held that there can be no waiver of the fundamental right founded on article 14 of the constitution. two others (n.h.bhagwati and subba rao,jj.) held that not only could there be no waiver of the right conferred by article 14, but there could be no waiver of any other fundamental right guaranteed by part iii of the constitution. the constitution makes no distinction, according to the learned judges, between fundamental rights enacted for the benefit of an individual and those enacted in public interest or on grounds of public policy. we must, therefore, reject the preliminary objection and proceed to consider the validityof the petitioners'

contentions on merits. the scope of the jurisdiction of this court to deal with writ petitions under article 32 of the constitution was examined by a special bench of this court in smt. ujjam bai v. state of uttar pradesh. [1963] 1 s.c.r. 778. that decision would 79 show that, in three classes of cases, the question of enforcement of the fundamental rights would arise, namely, (1) where action is taken under a statute which is ultra vires the constitution ; (2) where the statute is intra vires but the action taken is without jurisdiction; and (3) an authority under an obligation to act judicially passes an order in violation of the principles of natural justice. these categories are, of course, not exhaustive. in naresh shridhar mirajkar v. state of maharashtra, [1966] 3 s.c.r. 744-770, a special bench of nine learned judges of this court held that, where the action taken against a citizen is procedurally ultra vires, the aggrieved party can move this court under article 32. the contention of the petitioners is that the procedure prescribed by section 314 of the b.m.c. act being arbitrary and unfair, it is not "procedure established by law" within the meaning of article 21 and, therefore, they cannot be deprived of their fundamental right to life by resorting to that procedure. the petitions are clearly maintainable under article 32 of the constitution. as we have stated while summing up the petitioners' case, the main plank of their argument is that the right to life which is guaranteed by article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. for purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. we see only one answer to that question, namely, that it does. the sweep of the right to life conferred by article 21 is wide and far reaching. it does not mean merely that life 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 is but one aspect of the right to life. an equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. if the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him

of his means of livelihood to the point of abrogation. such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. and yet, such deprivation would not have to 80 be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. that, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. deprive a person of his right to livelihood and you shall have deprived him of his life. indeed, that explains the massive migration of the rural population to big cities. they migrate because they have no means of livelihood in the villages. the motive force which people their desertion of their hearths and homes in the village s that struggle for survival, that is, the struggle for life. so unimpeachable is the evidence of the nexus between life and the means of livelihood. they have to eat to live: only a handful can afford the luxury of living to eat. that they can do, namely, eat, only if they have the means of livelihood. that is the context in which it was said by douglas j. in baksey that the right to work is the most preciousliberty because, it sustains and enables a man to live and the right to life is a precious freedom. "life", as observed by field, j. in munn v. illinois, (1877) 94 u.s. 113, means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. this observation was quoted with approval by this court in kharak singh v. the state of u.p., [1964] 1 s.c.r. 332. article 39(a) of the constitution, which is a directive principle of state policy, provides that the state shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. article 41, which is another directive principle, provides, inter alia, that the state shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. article 37 provides that the directive principles, though not enforceable by any court, are nevertheless fundamental in the governance of the country. the principles contained in articles 39 (a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. if there is an obligation upon the state to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. the state may not, by affirmative action, be compellable to provide adequate means

of livelihood or work to the citizens. but, any person, who is deprived of his right to livelihood 81 except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by article 21. learned counsel for the respondents placed strong reliance on a decision of this court in in re: sant ram, [1960] 3 s.c.r. 499, in support of their contention that the right to life guaranteed by article 21 does not include the right to livelihood. rule 24 of the supreme court rules empowers the registrar to publish lists of persons who are proved to be habitually acting as touts. the registrar issued a notice to the appellant and one other person to show cause why their names should not be included in the list of touts. that notice was challenged by the appellant on the ground, inter alia, that it contravenes article 21 of the constitution since, by the inclusion of his name in the list of touts, he was deprived of his right to livelihood, which is included in the right to life. it was held by a constitution bench of this court that the language of article 21 cannot be pressed in aid of the argument that the word `life' in article 21 includes `livelihood' also. this decision is distinguishable because, under the constitution, no person can claim the right to livelihood by the pursuit of an opprobrious occupation or a nefarious trade or business, like tourism, gambling or living on the gains of prostitution. the petitioners before us do not claim the right to dwell on pavements or in slums for the purpose of pursuing any activity which is illegal, immoral or contrary to public interest. many of them pursue occupations which are humble but honourable. turning to the factual situation, how far is it true to say that if the petitioners are evicted from their slum and pavement dwellings, they will be deprived of their means of livelihood? it is impossible, in the very nature of things, together reliable data on this subject in regard to each individual petitioner and, none has been furnished to us in that form. that the eviction of a person from a pavement or slum will inevitably lead to the deprivation of his means of livelihood, is a proposition which does not have to be established in each individual case. that is an inference which can be drawn from acceptable data. issues of general public importance, which affect the lives of large sections of the society, defy a just determination if their consideration is limited to the evidence pertaining to specific individuals. in the resolution of such issues, there are no symbolic samples which can effectively project a true picture of 82 the grim realities of life. the writ petitions before us

undoubtedly involve a question relating to dwelling houses but, they cannot be equated with a suit for the possession of a house by one private person against another. in a case of the latter kind, evidence has to be led to establish the cause of action and justify the claim. in a matter like the one before us, in which the future of half of the city's population is at stake, the court must consult authentic empirical data compiled by agencies, official and nonofficial. it is by that process that the core of the problem can be reached and a satisfactory solution found. it would be unrealistic on our part to reject the petitions on the ground that the petitioners have notadduced evidence to show that they will be rendered jobless if they are evicted from the slums and pavements. commonsense, which is a cluster of life's experiences, is often more dependable than the rival facts presented by warring litigants. it is clear from the various expert studies to which we have referred while setting out the substance of the pleadings that, one of the main reasons of the emergence and growth of squatter-settlements in big metropolitan cities like bombay, is the availability of job opportunities which are lacking in the rural sector. the undisputed fact that even after eviction, the squatters return to the cities affords proof of that position. the planning commission's publication, `the report of the expert group of programmes for the alleviation of poverty' (1982) shows that half of the population in india lives below the poverty line, a large part of which lives in villages. a publication of the government of maharashtra, `budget and the new 20 point socio-economic programme' shows that about 45 lakhs of families in rural areas live below the poverty line and that, the average agricultrual holding of a farmer, which is 0.4 hectares, is hardly enough to sustain him and his comparatively large family. the landless labourers, who constitute the bulk of the village population, are deeply imbedded in the mire of poverty. it is due to these economic pressures that the rural population is forced to migrate to urban areas in search of employment. the affluent and the not-so-affluent are alike in search of domestic servants. industrial and business houses pay a fair wage to the skilled workman that a villager becomes in course of time. having found a job, even if it means washing the pots and pans, the migrant sticks to the big city. if driven out, he returns in quest of another job. the cost of public sector housing is beyond his modest means and the less we refer to the deals of private builders the better for all; excluding none. added to 83 these factors is the stark reality of growing insecurity in villages on account of the tyranny of parochialism and casteism. the announcement made by the maharashtra chief

minister regarding the deportation of willing pavement dwellers afford some indication that they are migrants from the interior areas, within and outside maharashtra. it is estimated that about 200 to 300 people enter bombay every day in search of employment. these facts constitute empirical evidence to justify the conclusion that persons in the position of petitioners live in slums and on pavements because they have small jobs to nurse in the city and there is no where else to live. evidently, they choose a pavement or a slum in the vicinity of their place of work, the time otherwise taken in commuting and its cost being forbidding for their slender means. to loss the pavement or the slum is to lose the job. the conclusion, therefore in terms of the constitutional phraseology is that the eviction of the petitioners will lead to deprivation of their livelihood and consequently to the deprivation of life. two conclusions emerge from this discussion: one, that the right to life which is conferred by article 21 includes the right to livelihood and two, that it is established that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. but the constitution does not put an absolute embargo on the deprivation of life or personal liberty. by article 21, such deprivation has to be according to procedure established by law. in the instant case, the law which allows the deprivation of the right conferred by article 21 is the bombay municipal corporation act, 1888, the relevant provisions of which are contained in sections 312(1),313(1)(a) and 314. these sections which occur in chapter xi entitled `regulation of streets' read thus : 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 passage or access. 85 these provisions, which are clear and specific, empower the municipal commissioner to cause to be removed encroachments on footpaths or pavements over which public have a right of passage or access. it is undeniable that, in these cases, wherever constructions have been put up on the pavements, the public have a right of passage or access over those pavements. the argument of the petitioners is that the procedureprescribed by section 314 for the removal of encroachments from pavements is arbitrary unreasonable since, not only does it not provide for the giving of a notice before the removal of an encroachment but, it provides expressly that the municipal commissioner may cause the encroachment to be removed "without notice". it is far too well-settled to admit of any argument that the procedure prescribed by law for the deprivation of the right conferred by article 21 must be fair, just and reasonable. (see e.p.royappa v. state of tamil nadu, [1974] 2 s.c.r. 348; maneka gandhi v. union of india, [1978] 2

the

and

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 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] 2 s.c.r. 913,921-922; kasturi lal lakshmi keddy v. state of jammu & kashmir, [1980] 3 s.c.r. 1338,1356; and francis coralie mullin v. the administrator, union territory of delhi, [1981] 2 s.c.r. 516,523-24.) just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. it is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right, in this case the right to life, must confirm to the norms of justice and fairplay. procedure, which is unjust or unfair in the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedureand consequently, the action taken under it. any action taken by a public authority which is invested with statutory powers has, therefore, to be tested by the application of two standards: the action must be within the scope of the authority conferred by law and secondly, it must be reasonable. if any action, within the scope of the authority conferred by law, is found to be unreasonable it must mean that the procedure established by law under which that 86 action is taken is itself unreasonable. the substance of the law cannot be divorced from the procedure which it prescribe for, how reasonable the law is, depends upon how fair is the procedure prescribed by it, sir raymond evershad says that, from the point of view of the ordinary citizen, it is the procedure thatwill most strongly weigh with him. he will tend to form his judgment of the excellence or otherwise of the legal system from his personal knowledge and experience in seeing the legal machine at work", [`the influence of remedies on rights' (current legal problems 1953, volume 6.)]. therefore, he that takes the procedural sword shall perish 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 `the welfare state, rule of law and natural justice', which is to be found in his book `democracy, equality and freedom', that there is "substantial agreement in juristic thought that the great purpose of the rule of law notion is the protection of the individual against arbitrary exercise of power wherever it is found". adopting that formulation, bhagwati j., speaking for the court, observed in ramana dayaram, shetty

v. the international airport authority of india, [1979] 3 s.c.r. 1014,1032 that it is "unthinkable that in a democracy governed by the rule of law, the executive government or any of its officers should possess arbitrary power over the interest of the individual. every action of the executive government must be informed with reason and should be free from arbitrariness. that is the very essence of the rule of law and its bare minimal requirement". having given our anxious and solicitous consideration to this question, we are of the opinion that the procedure prescribed by section 314 of the bombay municipal corporation act for removal of encroachments on the footpaths or pavements over which the public has the right of passage or access, cannot be regarded as unreasonable, unfair or unjust. there is no static measure of reasonableness which can be applied to all situations alike. indeed, the question "is this procedure reasonables implies and postulatesthe inquiry as to whether the procedure prescribed 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 public properties which are intended to serve the convenience of the general public. they are not laid for private use and indeed, their use for a private purpose frustrates the very object for which they are carved out from portions of public streets. the main reason for laying out pavements is to ensure that the pedestrians are able to go about their daily affairs with a reasonable measure of safety and security. that facility, which has matured into a right of the pedestrians, cannot be set at naught by allowing encroachments to be made on the pavements. there is no substance in the argument advanced on behalf of the petitioners that the claim of the pavement dwellers to put up constructions on pavements and that of the pedestrians to make use of the pavements for passing and repassing, are competing claims and that the former should be preferred to the latter. no one has the right to make use of a public property for a private purpose without the requisite authorisation and, therefore, it is erroneous to contend that the pavement dwellers have the right to encroach upon pavement 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 but the limited right of using pavementsfor the purpose of passing and repassing. so long as a person does not transgress the limited purpose for which pavements are made, his use thereof is legitimate and lawful. but, if a person puts any public property to a use for which it is not intended and is not intended and is not authorised so to use it, he becomes a trespasser. the common example which is cited 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 to rest himself by the side of the road, he does not commit a trespass. but, if a person puts up a dwelling on the pavement, whatever may be the economic compulsions behind such an act, his user of the pavement would become unauthorised. as stated in hickman, it is not easy to draw an exact line between the legitimate user of a highway as a highway and the user which goes beyond the right conferred upon the public by its dedication. but, as in many other cases, it is not difficult to put cases well on one side of the line. putting up a dwelling on the pavement is a case which is clearly on one side of the line showing that it is an act of trespass. section 61 of the bombay municipal corporation act lays down the obligatory 88 duties of the corporation, under clause (d) of which, it is its duty to take measures for abetment of all nuisances. the existence of dwellings on the pavements is unquestionably a source of nuisance tothe public, at least for the reason that they are denied the use of pavements for passing and repassing. they are compelled, by reason of the occupation of pavements by dwellers, to use highways and public streets as passages. the affidavit filed on behalf of the corporation shows that the fall-out of pedestrians in large numbers on highways and streets constitutes a grave traffic hazard. surely, pedestrians deserve consideration in the matter of their physical safety, which cannot be sacrificed in order to accommodate persons who use public properties for a private purpose, unauthorizedly. under clause (c) of section 61 of the b.m.c. act, the corporation is under an obligation to remove obstructions upon public streets another public places. the counter-affidavit of the corporation shows that the existence of hutments on pavements is a serious impediment inrepairing the roads, pavements, drains and streets. section 63(k), which is discretionary, empowers the corporation to take measures to promote public safety, health or convenience not specifically provided otherwise. since it is not possible to provide any public conveniences to the pavement dwellers on or near the pavements, they answer the nature's call on the pavements or on the streets adjoining them. these facts

provide the background to the provision for removal of encroachments on pavements and footpaths. the challenge of the petitioners to the validity of the relevant provisions of the bombay municipal corporation act is directed principally at the procedure prescribed by section 314 of that act, which provides by clause (a) that the commissioner may, without notice, take steps for the removal of encroachments in or upon ay street, channel, drain, etc. by reason of section 3(w), `street' includes a causeway, footway or passage. in order to decide whether the procedure prescribed by section 314 is fair and reasonable, we must first determine the true meaning of that section because, the meaning of the law determines its legality. if a law is found to direct the doing of an act which is forbidden by the constitution or to compel, in the performance of an act, the adoption of a procedure which is impermissible under the constitution, it would have to be struck down. considered in its proper perspective, section 314 is in the nature of an enabling provision and not of a compulsive character. it enables the commissioner, in appropriate cases, to dispense with previous notice to persons who are likely to be affected by the proposed 89 action. it does not require and, cannot be read to mean that, in total disregard of the relevant circumstances pertaining to a given situation, the commissioner must cause the removal of an encroachment without issuing previous notice. the primary rule of construction is that the language of the law must receive its plain and natural meaning. what section 314 provides is that the commissioner may, without notice, cause an encroachment to be removed. it does not command that the commissioner shall, without notice, cause an encroachment to be removed. putting it differently, section 314 confers on the commissioner the discretion to cause an encroachment to be removed with or without notice. that discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable. we must lean in favour of this interpretation because it helps sustain the validity of the law. reading section 314 as containing a command not to issue notice before the removal of an encroachment will make the law invalid. it must further be presumed that, while vesting in the commissioner the power toact without notice, the legislature intended that the power should be exercised sparingly and in cases of urgency which brook no delay. in all other cases, no departure from the audi alteram partem rule ('hear the other side') could be presumed to have been intended. section 314 is so designed as to exclude the principles of natural justice by way of exemption and not as

a general rule. there are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place the apprehended danger and so on. the ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. the hearing may be given individually or collectively, depending upon the facts of each situation. a departure from this fundamental rule of natural justice may be presumed to have been intended by the legislature only in circumstances which warrant it. such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence. it was urged by shri k.k.singhvi on behalf of the municipal corporation that the legislature may well have intended that no notice need be given in any case whatsoever because, no useful purpose could be served by issuing a notice as to why an encroachment on a public property should not be removed. we have indicated above that far from so intending, the legislature has left 90 it to the discretion of the commissioner whether or not to give notice, a discretion which has to be exercised reasonably. counsel attempted to demonstrate the practical futility of issuing the show cause notice by pointing out firstly, that the only answer which a pavement dweller, for example, can make to such a notice is that he is compelled to live on the pavement because he has no other place to go to and secondly, that it is hardly likely that in pursuance of such a notice, pavement dwellers or slum dwellers would ask for time to vacate since, on their own showing, they are compelled to occupy some pavement or slum or the other if they are evicted. it may be true to say that, in the generality of cases, persons who have committed encroachments on pavements or on other public properties may not have an effective answer to give. it is a notorious fact of contemporary life in metropolitan cities, that no person in his senses would opt to live on a pavement or in a slum, if any other choice were available to him. anyone who cares to have even a fleeting glance at the pavement or slum dwellings will see that they are the very hell on earth. but, though this is so, the contention of the corporation that no notice need be givenbecause, there can be no effective answer to it, betrays a misunderstanding of the rule of hearing, which is an important element of the principles of natural justice. the decision to dispense with notice cannot be founded upon a presumed impregnability of the proposed action. for example, in the common run of cases, a person may contend in answer to a notice under section 314 that (i) there was, in fact, no encroachment on any public road, footpath or pavement, or (ii) the

encroachment was so slight and negligible as to cause no nuisance or inconvenience to other members of the public, or (iii) time may be granted for removal of the encroachment in view of humane consideration arising out of personal, seasonal or other factors. it would not be right to assume that the commissioner would reject these or similar other considerations without a careful application of mind. human compassion must soften the rough edges of justice in all situation. the eviction of the pavement or slum dweller not only means his removal from the house but the destruction of the house itself. and the destruction of a dwelling house is the end of all that one holds dear in life. humbler the dwelling, greater the suffering and more intense the sense of loss. the proposition that notice need not be given of a proposed action because, there can possibly be no answer to it, is contrary to the well-recognized understanding of the real import of the rule of hearing. that proposition overlooks that justice must 91 not only be done but must manifestly be seen to be done and confuses one for the other. the appearance of injustice is the denial of justice. it is the dialogue with the person likely to be affected by the proposed action which meets the requirement that justice must also be seen to be done. procedural safeguards have their historical origins in the notion that conditions of personal freedom can be preserved only when there is some institutional check on arbitrary action on the part of public authorities. (kadish, "methodology and criteria in due process adjudication - a survey and criticism," 66 yale l.j. 319,340 [1957]. the right to be heard has two facets, intrinsic and instrumental. the intrinsic value of that right consists in the 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 are made, an opportunity that expresses their dignity as persons. (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, 171172 (1951). at stake here is not just the muchacclaimed 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 in the means which it affords of assuring that the public rules of 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 incomplete without reference to an important decision of this court in s.l. kapoor v. jagmohan, [1981] 1 s.c.r. 746,766. in that case, the suppression of the new delhi municipal committee was challenged on the ground that it was in violation of the principles of natural justice since, no show cause notice was issued before the order of suppression was passed. linked with that question was the question whether the failure to observe the principles of natural justice matters at 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 all e.r. 621 (h.l.) at 625; margarita fuentes at al. v. tobert l.shevin, 32 l.ed. 2d 556 at 574; chintepalli agency taluk arrack 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 the subject 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 regarding the purport and implications of the right of hearing. 93 the jurisprudence requiring hearing to be given to those who have encroached on pavements and other public properties evoked a sharp response from the respondents counsel. "hearing to be given to trespassers who have encroached on public properties? to persons who commit crimes?" they seemed to ask in wonderment. there is no doubt that the petitioners are using pavements and other public properties for an unauthorised purpose. but, their intention or object in doing so is not to "commit an offence or intimidate, insult or annoy any person", which is the gist of the offence of 'criminal trespass' under section 441 of the penal code. they manage to find a habitat in places which are mostly filthy or marshy, out of sheer helplessness. it is not as if they have a free choice to exercise as to whether to commit an encroachment and if so, where. the encroachments committed by these persons are involuntary acts in the sense that those acts are compelled by inevitable circumstances and are not guided by choice. trespass is a tort. but, even the law of torts requires that though a trespasser may be evicted forcibly, the force used must be no greater than what is reasonable and appropriate to the occasion and, what is even more important, the trespasser should be asked and given a reasonable opportunity to depart before force is used to expel him. (see ramaswamy iyer's 'law of torts' 7th ed. by justice and mrs. s. k. desai, (page 98, para 41). besides, under the law of torts, necessity is a plausible defence, which enables a person to escape liability on the ground that the acts complained of are necessary to prevent greater damage, inter alia, to himself. "here, as elsewhere in the law of torts, a balance 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 its affidavit that slum and pavement dwellers exhibit especial criminal tendencies is unfounded. according to dr. p.k.muttagi, head of the unit for urban studies of the tata institute of social sciences, bombay, the surveys carried

out in 1972, 1977,1979 and 1981 show that many families which have chosen the bombay footpaths just for survival, have been living there for several years and that 53 per cent of the pavement dwellers are self-employed as hawkers in vegetables, flowers, ice-cream, toys, balloons, buttons, needles and so on. over 38 per cent are in the wage-employed category as casual labourers, construction workers, domestic servants and luggage carriers. only 1.7 per cent of the total number is generally unemployed. dr. muttagi found among the pavement dwellers a 94 graduate of marathwada university and muslim post of some standing. "these people have merged with the landscape, become part of it, like the chameleon", though their contact with their more fortunate neighbours who live in adjoining high-rise buildings is casual. the most important finding of dr. muttagi is that the pavement dwellers are a peaceful lot, "for, they stand to lose their shelter on the pavement if they disturb the affluent or indulge in fights with their fellow dwellers". the charge of the state government, besides being contrary to these scientific findings, is born of prejudice against the poor and the destitute. affluent people living in sky-scrapers also commit crimes varying from living on the gains of prostitution and defrauding the public treasury to smuggling. but, they get away. the pavement dwellers, when caught, defend themselves by asking, "who does not commit crimes in this city ? as observed by anand chakravarti, "the separationbetween existential realities and the rhetoric of socialism indulged in by the wielders of power in the government cannot be more profound." 'some aspects of inequality in rural india : a sociological perspective published in 'equality and inequality, theory and practice' edited by andre beteille, 1983. normally, we would have directed the municipal commissioner to afford an opportunity to the petitioners to show why the enroachments committed by them on pavements or footpaths should not be removed. but, the opportunity which was denied by the commissioner was granted by us in an ample measure, both sides having mate their contentions elaborately on acts as well as on law. having considered those contentions, we are of the opinion that the commissioner was justified in directing the removal of the encroachments committed by the petitioners on pavements, footpaths or accessory roads. as observed in s.l. kapoor, (supra) "whereon the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs . indeed, in that case, the court

did not set aside the order of supersession in view of the factual position stated by it. but, though we do not see any justification for asking the commissioner to hear the petitioners, we propose to pass an order which, we believe, he would or should have passed, had he granted a hearing to them and heard what we did. we are of the opinion that the petitioners should not be evicted from the pavements, footpaths or accessory roads until one month after the conclusion of the current monsoon season, that is to say, until october 31, 95 1985. in the meanwhile, as explained later, steps may be taken to offer alternative pitches to the pavement dwellers who were or who happened to be censused in 1976. the offer of alternative pitches to such pavement dwellers should be made good in the spirit in which it was made, though we do not propose to make it a condition precedent to the removal of the encroachments committed by them. insofar as the kamraj nagar basti is concerned, there are over 400 hutments therein. the affidavit of the municipal commissioner, shri d.m.sukhthankar, shows that the basti was constructed on an accessory road, leading to the highway. it is also clear from that affidavit that the hutments were never regularised and no registration numbers were assigned to them by the road development department. since the basti is situated on a part of the road leading to the express highway, serious traffic hazards arise on account of the straying of the basti children on to the express highway, on which there is heavy vehicular traffic. the same criterion would apply to the kamraj nagar basti as would apply to the dwellings constructed unauthorisedly on other roads and pavements in the city. the affidavit of shri arvind v. gokak, administrator of the maharashtra housing and areas development authority, bombay, shows that the state government had taken a decision to compile a list of slums which were required to be removed in public interest and to allocate, after a spot inspection, 500 acres of vacant land in or near the bombay suburban district for resettlement of hutment dwellers removed from the slums. a census was accordingly carried out on january 4, 1976 to enumerate the slum dwellers spread over about 850 colonies all over bombay. about 67% of the hutment dwellers produced photographs of the heads of their families, on the basis of which the hutments were numbered and their occupants were given identity cards. shri gokak further says in his affidavit that the government had also decided that the slums which were in existence for a long time and which were improved and developed, would not normally be demolished unless the land was required for a public purposes. in the event that the land was so required, the policy of the state government was to provide alternate

accommodation to the slum dwellers who were censused and possessed identity cards. the circular of the state government dated february 4, 1976 (no. sts/176/d-41) bears out this position. in the enumeration of the hutment dwellers, some persons occupying pavements also happened to be given census cards. the government decided to allot 96 pitches to such persons at aplace near malavani. these assurance held forth by the government must be made good. in other words despite the finding recorded by us that the provision contained in section 314 of the b.m.c. act is valid, pavement dwellers to whom census cards were given in 1976 must be given alternate pitches at malavani though not as a condition precedent to the removal of encroachments committed by them. secondly, slum dwellers who were censused and were given identity cards must be provided with alternate accommodation before they are evicted. there is a controversy between the petitioners and the state government as to the extent of vacant land which is available for resettlement of the inhabitants of pavements and slums. whatever that may be, the highest priority must be accorded by the state government to the resettlement of these unfortunate persons by allotting to them such land as the government finds to be conveniently available. the maharashtra employment guarantee act, 1977, the employment guarantee scheme, the 'new twenty point socio-economic programme, 1982', the 'affordable law income shelter programme in bombay metropolitan region' and the programme of house building for the economically weaker sections' must not remain a dead letter as such schemes and programmes often do. not only that, but more and more such programmes must be initiated if the theory of equal protection of laws has to take its rightful place in the struggle for equality. in these matters, the demand is not so much for less governmental interference as for positive governmental action to provide equal treatment to neglected segments of society. the profound rhetoric of socialism must be translated into practice for, the problems which confront the state are problems of human destiny. during the course of arguments, an affidavit was filed by shri s.k.jahagirdar, under secretary in the department of housing, government of maharashtra, setting out the various housing schemes which are under the consideration of the state government. the affidavit contains useful information on various aspects relating to slum and pavement dwellers. the census of 1976 which is referred to in that affidavit shows that 28.18 lakhs of people were living in 6,27,404 households spread over 1680 slum pockets. the earning of 80 per cent of the slum house holds did not exceed rs.600 per month. the state government has a proposal to undertake 'low income scheme shelter programme' with the aid of the world

bank. under the scheme, 85,000 small plots for construction of houses would become available, out of which 40,000 would be in greater bombay, 25,00 in the thane-kalyan area and 20,000 in the new bombay region. the state government is also 97 proposing to undertake 'slum upgradation programme(sup)' under which basic civic amenities would be made available to the slum dwellers. we trust that these schemes, grandiose as they appear, will be pursued faithfully and the aid obtained from the world bank utilised systematically and effectively for achieving its purpose. there is no short term or marginal solution to the question of squatter colonies, nor are such colonies unique to the cities of india. every country, during its historical evolution, has faced the problem of squatter settlements and most countries of the under-developed world face this problem today.even the highly developed affluent societies face the same problem, though with their larger resources and smaller populations, their task is far less difficult. the forcible eviction of squatters, even if they are resettled in other sites, totally disrupts the economic life of the household. it has been a common experience of the administrators and planners that when resettlement is forcibly done, squatters eventually sell their new plots and return to their original sites near their place of employment. therefore, what is of crucial importance to the question of thinning out the squatters' colonies in metropolitan cities is to create new opportunities for employment in the rural sector and to spread the existing job opportunities evenly in urban areas. apart from the further misery and degradation which it involves, eviction of slum and pavement dwellers is an ineffective remedy for decongesting the cities. in a highly readable and moving account of the problems which the poor have to face, susan george says: ('how the other half dies the real reasons for world hunger' (polican books). "so long as thorough going land reform, regrouping 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 which has 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 to encroach, by erecting a structure or otherwise, on footpaths, pavements or any other place reserved or earmarked for a public purpose like, for example, a garden or a playground; that the provision contained in section 314 of the bombay municipal corporation act is not unreasonable in the circumstances of the case; and that, the kamraj nagar basti is situated on an accessory road leading to the western express highway. we have referred to the assurances given by the state government in its pleadings here which, we repeat, must be made good. stated briefly, pavement dwellers who were censused or who happened to be censused in 1976 should be given, though not as a condition precedent to their removal, alternate pitches at malavanior at such other convenient place as the government considers reasonable but not farther away in terms of distance; slum dwellers who were given identity cards and whose dwellings were numbered in the 1976 census must be given alternate sites for their resettlement; slums which have been in existence for a long time, say for twenty years or more, and which have been improved and developed will not be removed unless the land on which they stand or the appurtenant land, is required for a public purposes, in which case, alternate sites or accommodation will be provided to them, the 'low income scheme shelter programme' which is proposed to be undertaken with the aid of the world bank will be pursued earnestly; and, the slum upgradation programme (sup)' under which basic amenities are to be given to slum dwellers will be implemented without delay. in order to minimise the hardship involved in any eviction, we direct that the slums, wherever situated, will not be removed until one month after the end of the current monsoon season, that is, until october 31,1985 and, thereafter, only in accordance with this judgment. if any slum is required to be removed before that date, parties may apply to this court. pavement dwellers, whether censused or uncensused, will not be removed 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 providing sanitary facilities and construction of public conveniences for slum dwellers-whether courts can compel municipal body to carry out its duty to the community to provide amenities and abate nuisance.

headnote: the residents (respondents) of a prominent residential locality of the municipality (petitioner) in their complaint under s. 133 criminal procedure code to the sub-divisional magistrate averred that the municipality had failed despite several pleas, to meet its basic obligations, like provision of sanitary facilities on the roads, public conveniences for slum dwellers who were using the road for that purpose, and prevention of the discharge from the nearby alcohol plant of maladorous fluids into the public street, and that the municipality was oblivious to the statutory obligation envisaged in s. 123 m. p. municipalities act, 1961 the municipal council contested the petition on the ground that the owners of houses had gone to that locality on their own choice, fully aware of the insanitary conditions andtherefore they could not complain. it also pleaded financial difficulties in the construction of drains and provision of amenities. the magistrate found the facts proved, and ordered the municipality to provide the amenities and to abate the nuisance by constructing drain pipes with flow of water to wash the filth and stop the stench and that failure would entail prosecution under s. 188 i.p.c. the order of the magistrate was found unjustified by the sessions court, but upheld by the high court. in the special leave petition by the municipality to this court on the question whether a court can by affirmative action compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time-bound basis. ^ held : 1. wherever there is a public nuisance, the presence of s. 133 criminal procedure code must be felt and any contrary opinion is contrary to the law. [112d] 2. the public power of the magistrate under the code is a public duty to the members of the public who are victims of the nuisance and so he shall exercise, it when the jurisdictional 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 be fixed in the order. this is a public duty implicit in the

public power to be exercised on behalf of the public and pursuant to a public proceeding. failure to comply with the direction will be visited with a punishment contemplated by s. 188 i.p.c. [109c-d] 4. the municipal commissioner or other executive authority bound by the order under s. 133 criminal procedure code shall obey the direction because disobedience, if causes obstruction or annoyance or injury to any persons lawfully pursuing their employment, shall be punished with simple imprisonment or fine as prescribed in the section. the offence is aggravated if the disobedience tends to cause danger to human health or safety. [109e] 5. public nuisance, because of pollutants being discharged by big factories to the detriment of the poorer sections, is a challenge to the social justice component of the rule of law. [110c] 6. the imperative tone of s. 133 criminal procedure code read with the punitive temper of s. 188 i.p.c. make the prohibitory act a mandatory duty. [109e] 7. the criminal procedure code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under partiii of the constitution have to be respected by the state regardless of budgetary provision. [108h] 8. section 123 m. p. municipalities act 1961 has no saving clause when the municipal council is penniless. [108h] 9. although the cr.p.c. and i.p.c. are of ancient vintage the new social justice orientation imparted to them by the constitution of india makes them a remedial weapon of versatile use. social justice is due to the people and, therefore, the people must be able to trigger off the jurisdiction vested for their benefit in any public functionary like a magistrate under s. 133 criminal procedure code. in the exercise of such power, the judiciary must be informed by the broader principle of access to justice necessitated by the conditions of developing countries and obligated by art. 38 of the constitution. [109f-g] 10. a responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. decency and dignity are nonnegotiable facets of human rights and are a first charge on local self-governing bodies. similarly, providing drainage systems not pompous and attractive, but in working condition and sufficient to meet the needs of the people-cannot be evaded if the municipality is to justify its existence. [110e] 11. the court, armed with the provisions of the two codes and justified by the obligation under s. 123 of the

act, must adventure into positive directions as it has done in the present case. section 133 criminal procedure code authorises the prescription of a time-limit for carrying out the order. the same provision spells out the power to give specific directives. [111a-b] govind singh v. shanti sarup, [1979] 2 scc 267, 279 referred to. 12. the state will realise that art. 47 makes it a paramount principle of governance that steps are taken for the improvement of public health as amongstits primary duties. the municipality also will slim its budget on 99 low priority items and elitist projects to use the savings on sanitation and public health. [114c] 13. where directive principles have found statutory expression in do's and don'ts the court will not sit idly by and allow municipal government to become a statutory mockery. the law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice. the dynamics of the judicial process have a new `enforcement' dimension not merely through some of the provisions of the criminal procedure code (as here) but also through activated tort consciousness. the officers in charge and even the elected representatives will have to face the penalty of the law if what the constitution and follow up legislation direct them to do are defied or denied wrongfully. the wages of violation is punishment, corporate and 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 the madhya 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 for respondents 1-5. s. k. gambhir for the state. the order of the court was delivered by krishna iyer, j.-`it is procedural rules', as this appeal proves, `which infuse life into substantive rights, which activate them to make them effective'. here, before us, is what looks like a pedestrian quasi-criminal

litigation under s. 133 cr.p.c., where the ratlam municipality-the appellant-challenges the sense and soundness of the high court's affirmation of the trial court's order directing the construction of drainage facilities and the like, which has spiralled up to this court. the truth is that a few profound issues of processual jurisprudence of great strategic significance to our legal system face us and we must zero-in on them as they involve problems of access to justice for the people beyond the blinkered rules of `standing' of british indian vintage. if the centre of gravity of justice is to shift, as the preamble to the constitution mandates, from the traditional individualism of locus standi to the community orientation of public interest litigation, these issues must be considered. in that sense, the case before us between the ratlam municipality and the citizens of 100 a ward, is a path-finder in the field of people's involvement in the justicing process, sans which as prof. sikes points out,(1) the system may `crumble under the burden of its own insensitivity'. the key question we have to answer is whether by affirmative action a court can compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time-bound basis. at issue is the coming of age of that branch of public law bearing on community actions and the court's power to force public bodies under public duties to implement specific plans in response to public grievances. the circumstances of the case are typical and overflow the particular municipality and the solutions to the key questions emerging from the matrix of facts are capable of universal application, especially in the third world humanscape of silent subjection of groups of people to squalor and of callous public bodies habituated to deleterious inaction. the ratlam municipal town, like many indian urban centres, is populous with human and sub-human species, is punctuated with affluence and indigence in contrasting co-existence, and keeps public sanitation a low priority item. what with cesspools and filth menacing public health. ward no. 12, new road, ratlam town is an area where prosperity and poverty live as strange bedfellows. the rich have bungalows and toilets, the poor live on pavements and litter the street with human excreta because they use roadsides as latrines in the absence of public facilities. and the city fathers being too busy with other issues to bother about the human condition, cesspools and stinks, dirtied the place beyond endurance which made the well-to-do citizens protest, but the crying demand for basic sanitation and public drains fell on deaf ears. another contributory cause to the insufferable situation was the discharge from

the alcohol plant of malodorous fluids into the public street. in this lawless locale, mosquitoes found a stagnant stream of stench so hospitable to breeding and flourishing, with no municipal agent disturbing their stinging music at human expense. the local denizens, driven by desperation, at long last, decided to use the law and call the bluff of the municipal body's bovine indifference to its basic obligations 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 to 101 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 obligation towards human well-being and was directly guilty of breach of duty and public nuisance and active neglect. the sub divisional magistrate, ratlam, was moved to take action under s. 133 cr.p.c., to abate the nuisance by ordering the municipality to construct drain pipes with flow of water to wash the filth and stop the stench. the magistrate found the facts proved, made the direction sought and scared by the prospect of prosecution under s. 188 i.p.c., for violation of the order under s. 133 cr.p.c., the municipality rushed from court to court till, at last, years after, it reached this court as the last refuge of lost causes. had the municipal council and its executive officers spent half this litigative zeal on cleaning up the street and constructing the drains by rousing the people's sramdan resources and laying out the city's limited financial resources, the people's needs might have been largely met long ago. but litigation with other's funds is an intoxicant, while public service for common benefit is an inspiration; and, in a competition between the two, the former overpowers the latter. not where a militant people's will takes over people's welfare institutions, energises the common human numbers, canalises their community consciousness, forbids the offending factories from polluting the environment, forces the affluent to contribute wealth and the indigent

their work and thus transforms the area into a healthy locality vibrant with popular participation and vigilance, not neglected ghettoes noisy with squabbles among the slimy slum-dwellers nor with electoral 'sound and fury signifying nothing.' the magistrate, whose activist application of s. 133 cr.p.c., for the larger purpose of making the ratlam municipal body to do its duty and abate the nuisance by affirmative action, has our appreciation. he has summed up the 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. on 102 the southern side of this road some houses are situated and behind these houses and attached to the college boundary, the municipality has constructed a road and this new road touches the government college and its boundary. just in between the said area a dirty nala is flowing which is just in the middle of the main road i.e. new road. in this stream (nala) many a time dirty and filthy water of alcohol plant having chemical and obnoxious smell, is also released for which the people of that locality and general public have to face most obnoxious smell. this nala also produces filth which causes a bulk of mosquitoes breeding. on this very southern side of the said road a few days back municipality has also constructed a drain but it has (?) constructed it completely butleft the construction in between and in some of the parts the drain has not at all been constructed because of this the dirty water of half constructed drain and septic tank is flowing on the open land of applicants, where due to insanitation and due to non-removing the obstructed earth the water is accumulated in the pits and it also creates dirt and bad smell and produces mosquitoes in large quantities. this water also goes to nearby houses and causes harm to them. for this very reason the applicants and the other people of that locality are unable to live and take rest in their respective houses. this is also injurious to health". there are more dimensions to the environmental pollution which the magistrate points out: "a large area of this locality is having slums where no facility of lavatories is supplied by the municipality. many such people live in these slums who relieve their lateral dirt on the bank of drain or on the adjacent land. this way an open latrine is created by these people. this creates heavy dirt and mosquitoes. the drains constructed in other part of this mohalla are also not proper it does not flow the water properly and it creates the water obnoxious. the malaria department of the state of m.p. also pays no attention in this direction. the non-applicants have not

managed the drains, nallahs and naliyan properly and due to incomplete construction the non-applicants have left no outlet for the rainy water. owing to above reasons the water is accumulated on the main road, it passes through living houses, sometimes snakes and scorpions come out and this obstruct the people to pass through this road. this also causes financial loss to the people of this area. the road constructed bynagarpalika is on a high level and due to this, this year more 103 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 the nonapplicants are shirking from their responsibilities and try to avoid their duty by showing other one responsible for the same, whereas all the nonapplicants are responsible for the public nuisance." litigation is traumatic and so the local people asked first for municipal remedies failing which they moved for magisterial 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 and the indifference of the local body: "both the parties heard. the court was satisfied on the facts contained in their application dated 12-572 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 remove 104 all the nuisances within 15 days and if the nonapplicants 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 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 shown that nallah is property of nagarpalika according to ex.p. 10. many applications were submitted to remove 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 nonapplicants 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:

non-

the

............... 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 new 105 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 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 nonapplicants. 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 nonapplicants to remove the nuisance, the non-applicants have taken no steps whatsoever to remove all these public nuisances.

are

he issued the following order which was wrongly found unjustified by the sessions court, but rightly upheld by the high 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 nonapplicants 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 nonapplicants 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 the merits, legal and factual. if the factual findings are goodand wedo not re-evaluate them in the supreme court except in exceptional cases- one wonders whether our municipal bodies are functional irrelevances, banes rather than booms and 'lawless' by long neglect, not leaders of the people in local self-government. it may be a cynical obiter of pervasive veracity that municipal bodies minus the people

and plus the bureaucrats are the bathetic vogue-no better than when the british were here: 107 we proceed on the footing, as we indicated even when leave to appeal was sought, that the malignant facts of municipal callousness to public health and sanitation, held proved by the magistrate, are true. what are the legal pleas to absolve the municipality from the court's directive under s. 133 cr.p.c. ? that provision reads: s. 133(1) whenever a district magistrate or a subdivisional 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 is public nuisance. the public power of the magistrate under the code is a public duty to the members of the public who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present as here. "all power is a trust-that we are accountable for its exercisethat, from the people, and for the people, all springs, and all must exist."(i) discretion becomes a duty when the beneficiary brings home the circumstances for its benign exercise. if the order is defied or ignored, s. 188 i.p.c. comes into 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 the obligation to abate the public nuisance caused by absence of primary sanitary facilities. section 123, which is mandatory, (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, the municipality cannot extricate itself from its responsibility. its plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry out the duties under s. 123 of the act. this 'alibi' made us issue notice to the state which is now represented by counsel, shri gambhir, before us. the plea of the municipality that notwithstanding the public nuisance financial inability validly exonerates it from statutory liability has no juridical basis. the criminal procedure code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under part iii of the constitution have to be respected by the state regardless of budgetary provision. likewise, s. 123 of the act has no saving clause when the municipal council is penniless. otherwise, a profligate 109 statutory body or pachydermic governmental agency legally defy duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget.

may

that cannot be. section 133 cr.p.c. is categoric, although reads discretionary. judicial discretion when facts for its exercise are present, has a mandatory import. therefore, when the sub-divisional magistrate, ratlam, has, before him, information and evidence, which disclose the existence of a public nuisance and, on the materials placed, he considers that such unlawful obstruction or nuisance should be removed from any public placewhich may be lawfully used by the public, he shall act. thus, his judicial power shall, passing through the procedural barrel, fire upon the obstruction or nuisance, triggered by the jurisdictional facts. the magistrate's responsibility under s. 133 cr.p.c. is to order removal of such nuisance within a time to be fixed in the order. this is a public duty implicit in the public power to be exercised on behalf of the public and pursuant to a public proceeding. failure to comply with the direction will be visited with a punishment contemplated by s. 188 i.p.c. therefore, the municipal commissioner or other executive authority bound by the order under s. 133 cr.p.c. shall obey the direction because disobedience, if it causes obstruction or annoyance or injury to any persons lawfully pursuing their employment, shall be punished with simple imprisonment or fine as prescribed in the section. the offence is aggravated if the disobedience tends to cause danger 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, the new social justice orientation imparted to them by the constitution of india makes it a remedial weapon of versatile use. social justice is due to the people and, therefore, the people must be able to trigger off the jurisdiction vested for their benefit in any public functionary like a magistrate under s. 133 cr.p.c. in the exercise of such power, the judiciary must be informed by the broader principle of access to justice necessitated by the conditions of developing countries and obligated by art. 38 of the constitution. this brings indian public law, in its processual branch, in line with the statement of prof. kojima :(1) "the urgent need is to focus on the ordinary man-one might say the little man..." "access to justice" by cappelletti 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 discharged by big factories to the detriment of the poorer sections, is a challenge to the social justice component of the rule of law. likewise, the grievous failure of local authorities to provide the basic amenity of public conveniences drives the miserable slum-dwellers to ease in the streets, on the sly for a time, and openly thereafter, because under nature's pressure, bashfulness becomes a luxury and dignity a difficult art. a responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. decency and dignity are non-negotiable facets of human rights and are a first charge on local self-governing bodies. similarly, providing drainage systems- not pompous and attractive, but in working condition and sufficient to meet the needs of the peoplecannot be evaded if the municipality is to justify its existence. a bare study of the statutory provisions makes this position clear. in this view, the magistrate's approach appears to be impeccable although in places he seems to have been influenced by the fact that "cultured and educated people" live in this area and "new road, ratlam" is a very important road and so many prosperous and educated persons are living on this road. in india 'one man, one value' is the democracy of remedies and rich or poorthe law will call to order where people's rights are violated. what should also have been emphasised was the neglect of the malaria department of the state of madhya pradesh to eliminate mosquitoes, especially with open drains, heaps of dirt, public excretion by humans for want of lavatories and slums nearby, had created an intolerable situation for habitation. an order to abate the nuisance by taking affirmative action on a timebound basis is justified in the circumstances. the nature of the judicial process is not purely adjudicatory nor is it functionally that of an umpire only. 111 affirmative action to make the remedy effective is of the essence of the right which otherwise becomes sterile. therefore, the court, armed with the provisions of the two codes and justified by the obligation under s. 123 of the act, must adventure into positive directions as it has done in the present case. section 133 cr.p.c. authorises the

prescription of a time-limit for carrying out the order. the same provision spells out the power to give specific directives. we see no reason to disagree with the order of the magistrate. the high court has taken a correct view and followed the observations of this court in govind singh v. shanti sarup(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 that the time specified in the order is unworkable. the learned judges 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 council before the high court which was justly repelled, viz., that the owners of houses had gone to that locality on their own choice with eyes open and, therefore, could not complain if human excreta was flowing, dirt was stinking, mosquitoes were multiplying and health was held hostage. a public body constituted for the principal statutory duty of ensuring sanitation and health cannot outrage the court by such an ugly plea. 112 luckily, no such contention was advanced before us. the request for further time for implementation of the magistrate's order was turned down by the high court since no specific time-limit was accepted by the municipality for fulfillment of the directions. a doleful statement about the financial difficulties of the municipality and the assurance that construction of drains would betaken up as soon as possible 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 additional sessions judge's recommendation to quash the magistrate's order on the impression that s. 133 cr.p.c. did not provide for enforcement of civic rights. wherever there is a public nuisance, the presence of s. 133 cr.p.c. must be felt and any contrary opinion is contrary to the law. in short, we have no hesitation in upholding the high court's view of the law and affirmation of the magistrate's order. before us the major endeavour of the municipal council was to persuade us to be pragmatic and not to force impracticable orders on it since it had no wherewithal to execute the order. of course, we agree that law is realistic and not idealistic and what cannot be performed under given circumstances cannot be prescribed as a norm to be carried out. from that angle it may well be that while upholding the order of the magistrate, we may be inclined to tailor the direction to make it workable. but first things first and we cannot consent to a value judgment where people's health is a low priority. nevertheless, we are willing to revise the order into a workable formula the implementation of which would be watch-dogged by the court. three proposals have been put forward before us in regard to the estimated cost of the scheme as directed by the magistrate. the magistrate had not adverted to the actual cost of the scheme nor the reasonable time that would be taken to execute it. as stated earlier it is necessary to ascertain how far the scheme is feasible and how heavy the cost is likely to be. the court must go further to frame a scheme and then fix time-limits and even oversee the actual execution of the scheme in compliance with the court's order. three schemes placed before us, together with tentative estimates of the costs, have been looked into by us. judges are laymen and cannot put on expert airs. that was why we allowed the municipality 113 and the respondents to produce before us schemes prepared by expert engineers so that we may modify the directions issued by the magistrate suitably. scheme 'a' is stated to cost an estimated amount of rs. 1.016 crores. the state government has revised this proposal and brought down the cost. in our view, what is important is to see that the worst aspects of the insanitary conditions are eliminated, not that a showy scheme beyond the means of the municipality must be undertaken 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 according to that scheme. we further direct that the work shall be begun within two months from to-day and the magistrate shall inspect the progress of the work every three months broadly to be satisfied that the order is being implemented bona fide. breaches will be visited with the penalty of s. 188 i.p.c. we make the further supplementary directions which we specifically enjoin upon the municipal authority and the state 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 sixmonthly 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 make available by way of loans or grants sufficient financial aid to the ratlam municipality to enable it to fulfil its obligations under this order. the state will realise that art. 47 makes it a paramount principle of governance that steps are taken 'for the improvement of public health as amongst its primary duties'. the municipality also will slim its budget on low priority items and elitist projects to use the savings on sanitation and public health. it is not our intention that the ward which has woken up to its rights alone need be afforded these elementary facilities. we expect all the wards to be benefited without litigation. the pressure of the judicial process, expensive and dilatory, is neither necessary nor desirable if responsible bodies are responsive to duties. cappelletti holds good for india when he observes :(1) "our judicial system has been aptly described as follows: 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 ? where directive principles have found statutory expression in do's and dont's the court will not sit idly by and allow municipal government to become a statutory mockery. the law will relentlessly be enforced and the plea of poor finance will 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 the criminal procedure code (as here), but also through activated tort consciousness. the officers in charge and even the elected representatives will have 115 to face the penalty of the law if what the constitution and follow-up legislation direct them to do are defied or denied wrongfully. the wages of violation is punishment, corporate and personal. we dismiss this petition subject to the earlier mentioned 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: with i.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.4677/85 re: 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 a public interest litigation directed surrender of plots upon relocation of h categories industries more than four years have passed since the date of the order but regrettably the purpose of the order, to wit, to provide some open space and green verge for the benefit of the people of the capital city, stands unfulfilled and thus resultantly deprivation of lung space in the city. laws delay in this sub- continent is not unknown in the adversarial litigation, but the situation should not and ought not to be similar in a public interest litigation more so when the same concerns environmental degradation: a rather sad state of affairs. it is on this perspective, however, that the present interlocutory application taken out by the dda for direction on six key questions as mentioned in the petition shall have to be considered. incidentally, some entrepreneursalso moved certain other interlocutory applications, we do deem it fit however to record that the entrepreneurs application or any other matter or petition pending shall await the judgment and order in dda's application. before, however, proceeding with the matter further, a brief backgrounder seems to be rather indispensable having regard to the concept sustainable development for the capital city.needless to say while the brundtland report called out for adaptation globally of a strategy of sustainable development defining it as development that meets the need of the present without compromising the ability of future generations to meet their own needs, the initial linkage between the natural and man made environment and the critical relevance of both environment and development is generally attributed to the stockholm declaration of 1972 which stands restated reaffirmed by the un general assembly in december, 1986 specifying therein sustained and rapid development for developing nations.

of

and

prof. nico schrijver of the institute of social studies at hague, in his paper on legal aspect of sustainable development and protection of environment has high-lighted this right to development or sustainable development and indicated that the same includes a healthy environment. the controversy as regards development or environment vis- à-vis the society however persists and it is in this context a judgment of the calcutta high court, of which one of us (banerjee, j.) was a party, in regard to calcuttas wetlands in the eastern fringe of the city of calcutta (see air 1993 cal 215) may be noted: relevant extracts whereof are noted hereinbelow:- while it is true that in a developing country there shall have to be developments, but that development shall have to be in closest possible harmony with the environment, as otherwise there would be development but no environment, which would result in total devastation, though however, may not be felt in presenti but at some future point of time, but then, it would be too late in the day, however, to control and improve the environment. nature will not tolerate us after a certain degree of its destruction and it will, in any event, have its toll on the lives of the people. can the present-day society afford to have such a state and allow the nature to have its toll in future the answer shall have to be in the negative. the present-day society has a responsibility towards the posterity for their proper growth and development so as to allow the posterity to breathe normally and live in a cleaner environment and have a consequent fuller development. time has now come therefore to check and control the degradation of the environment and since the law courts also have a duty towards the society for its proper growth and further development, it is a plain exercise of the judicial power to see that there is no such degradation of the society and there ought not to be any hesitation in regard thereto.. the calcutta wetland judgment was pronounced on the apprehended danger of a severe bio-diversity crisis but the situation in the capital city of delhi is rather pathetic: non- availability of even the lung space has resulted in a very high degree of pollution as a matter of fact, this court (vide: 1996 (4) scc 351) while dealing with the issue at the instance of mr. mehta, the lawyer and social-activist had the following to state: 7. delhi is one of the most polluted cities in the world. the quality of ambient air is so hazardous that lung and respiratory diseases are on the increase. the city has

become a vast and unmanageable conglomeration of commercial, industrial, unauthorised colonies, resettlement colonies and unplanned housing . there is total lack of open spaces and green areas. once a beautiful city delhi now presents a chaotic picture. the most vital community need as at present is the conservation of the environment and reversal of the environmental degradation. there are virtually no lung spaces in the city. the master plan indicates the approximately 34 per cent of recreational areas have been lost to other uses. we are aware that the housing, the sports activity and the recreational areas are also part of the community need but the most important community need which is wholly deficient and needed urgently is to provide for the lung spaces in the city of delhi in the shape of green belts and open spaces. we are therefore, of the view that totality of the land which is surrendered and dedicated to the community by the owners/occupiers of the relocated/shifted industries should be used for the development of green belts and open spaces. the court in discharge of its social duty and obligation as the guardian angel of the society further directed in the@@ jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj same decision as below:@@ jjjjjjjjjjjjj 9. we, therefore, order and direct that the land which would become available on account of shifting/relocation of hazardous/noxious/heavy and large industries from the city of delhi shall be used in the following manner:sl. extent percentage to be percentage to by the n@@ iiiiiiiiiiiiiiiiiiiiiiiiiiiiii surrendered and developed dedicated to the owner for his own@@ iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii benefit in accordance dda for development of with the user@@ iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii perm itted master plan green belts and under the other@@ iiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii spaces@@ iiiiii 1 1. 2 3 4 be

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. 3. 4. 0.2 ha to 5 ha 5 ha to 10 ha over 10 ha 57 65 68 32 43 35

the earlier paragraphs have been introduced in this judgment as a backgrounder and to emphasize the sensitivity of the issue since environmental degradation will have its toll 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 10th may, 1996 has however, led to some confusion at the time of@@ jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj execution of this courts order before the district judge,@@ jjjjjjjjj delhi since none of the industrial units which were closed down by the order of this court, took any step whatsoever for surrendering the land on the pretended pretext of the order of this court dated 4.12.1996. significantly, however, the order dated 4th december, 1996 of this court came to be passed in an interlocutory application for directions filed by the central government wherein this court was pleased to observe in paragraph 3 of the order as below (vide 1997 (11) scc 327): 3. we see considerable force in the contention of the learned additional solicitor general on the second point also. 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 industries which have been closed down shall have to undertake fresh procedure for setting up of a new industry. needless to say that no industry can be set up which is not permitted under the master plan. the procedure required for setting up of a new industry shall have to be followed in every case. we make it clear that government permission and the consent from the pollution control board/committee, if required under law, shall have to be obtained . even fresh electric connection and water connection shall have to be applied for and obtained in the changed circumstances. we have no doubt when approached for necessary

permission/licence/water/electric connections authorities shall expedite in dealing with applications.

the the

the order of 4th december, 1996 though mainly pertain however to the compensation aspect to the workers of those industries which are not re-locating and which have been closed down but some variations were ordered having regard to the setting up of industries in accordance with master plan of delhi. the order however was clear enough to indicate the intent of the order. in this interlocutory application, however, delhi development authority said to have been confronted with various queries raised by the industries and upon consideration thereof prayed for issuance of appropriate directions in regard to the issues me ntioned hereinbelow: i) land surrendered by the industries as per order dated 10.5.1996 has to be on the total plot area in possession.@@ jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj ii) land offered for surrender should be directly approachable from the road, vacant and free from all encumbrances. iii) from the land surrender cases in respect of plots leased by delhi development authority, it is seen that out of 14 industrial units requiring to surrender the land, 7 have a plot area ranging between 8 sq.m to 100 sq.m. honble supreme court is requested to give directions for minimum plot area to be surrendered by an industrial unit. iv) certain units have restarted their industries removing/modifying the objectionable use process and obtained clearances from various departments. are such industries also liable to surrender land to delhi development authority as per orders dated 10.5.1996, 8.7.1996 and 4.12.1996? v) there are certain industries which were closed prior to the orders of honble supreme court dated 10.5.1996 but their names appear in the list of h category industries to be closed as mentioned in the various orders of honble supreme court. are such industries liable to surrender land? there are other industrial units which closed pursuant to the honble supreme courts orders dated 10.5.1996 and restarted the activities as per orders dated 4.12.1996 of honble supreme court. suitable directions may be given whether land surrender from such industries has to be effected.

vi) there are certain units which were running in rented premises from within plot located in an approved industrial area/non conforming area and whose name is got included in the list of 1328 industries released by honble supreme court from time to time. after the orders of honble supreme court dated 10.5.1996, the tenant has closed the industry and has handed over the rented premises to the original owner. in such cases is the original owner required to surrender land if the total plot area is more than 2000 sq.m.? adverting to the records at this juncture, be it noted that after the judgment of this court on 10th may, 1996 as above, three interlocutory applications, having more or less similar prayers were dismissed: delhi development authority also filed the ia no.139 for clarification of order dated 10.5.1996, 8.7.1996 and 4.12.1996 with a prayer that the units required to surrender land are now closed down as being a hazardous large scale industry and do not wish to relocate but to start units which are permitted in the master plan and in compliance with the pollution control norms. this court however dismissed the interlocutory application on 1st october, 1997.

down

significantly, the interlocutory application no.139 was filed on behalf of delhi development authority and the prayer therein not only bears a similarity with the prayer in this application but more or less the same has been couched in the exactly similar language and for convenience sake the same is set out hereinbelow:(a) whether the order dated 10.5.1996 passed by the honble court in so far as it require the units to surrender land would apply to such units which after having closed the hazardous large scale industries do not wish to relocate but to start units which are permitted under the master plan and which also comply with pollution control rules. it is on this prayer this court passed an order of dismissal though however without recording any reason. mr. ranjit kumar, the learned amicus curiae appearing in the matter contended that by reason of rejection of such a prayer, resulting in the dismissal of the application, question of further consideration of the issue as is proposed in question no.iv hereinbefore would not arise. undoubtedly, there is some substance in such a contention but the factum of non-availability of reasons in the order has rendered the situation slightly more flexible so as to afford a further opportunity to this court having regard to

the concept of justice to consider in some detail the order dated 4th december, 1996 in i.a. no.36 accepting the contention of the learned additional solicitor general. the clarificatory order of 4th december, 1996 did in fact grant a liberty which would be dealt with in detail while answering the issues raised in the application. another redeeming feature which ought also to be noticed pertains to the desire of the delhi development authority to move the court once again after having failed in such an attempt earlier. we are at a loss to find a further attempt on the part of the delhi development authority. the reasons obviously there would be some: but apparently nothing forthcoming. subsequently, swatantra bharat mill and dcm silk mills also moved i.a.no.425 with a prayer to direct dda to acquire the land required to be surrendered under the dda act or the land acquisition act and to restrain dda for trying to expropriate the land of the petitioner : this prayer also was turned down by this court and hence the application was dismissed as withdrawn. be it noted that the learned amicus curie with his usual eloquence contended that review applications against the order passed on 10th may, 1996 numbered 36 in the year 1996, 55 in the year 1997, 3 in the year 1999 and 2 petitions in the year 2000, as the records depict, were all dismissed and on the wake of the same, mr. ranjit kumar addressed us in detail that the present petition said to be for clarification cannot but be attributed to be a further attempt to review of the order dated 10.5.1996 which, in fact, does not call for any review nor does it call for any further order substituting the earlier order dated 10th may, 1996. mr. rawal, the learned additional solicitor general however, contended that while submission of mr. ranjit kumar may have some substance pertaining to some of issues as raised herein but that cannot said to be applicable in regard to all the issues. mr. additional solicitor general made it quite categorical that the application as filed by dda is not for circumvention of compliance of the order of this court but only to act in terms therewith. the instant petition, mr. rawal contended has been initiated as a necessity and dda had to move this court for certain clarification since there have been large scale unscrupulous withholding of delivery of possession. the necessity also said to be by reason of proposed transfer to land-locked areas which cannot possibly be utilised even as a lung-space by reason of non- availability of an entry thereto. it has been contended further that since a large number of proposed surrender, if not in its entirety, are with encumbrances,

was

question of obtaining possession thereof upon clearance of the encumbrances by the dda would not arise since that would foist an additional financial burden or liability beyond the capacity of the dda to meet. mr. rawal contended that transfer also should be effected without any superstructure on the land as otherwise, it would be a near impossibility for dda to take possession thereof. be it noted that the order dated 10th may, 1996 specifically directed that h category industries are required to surrender the land to the dda. we may note here that this order of surrender was passed by reason of the fact that the pollution level has reached its optimum in the city of delhi affecting the entire society h category industries were directed to close down and to surrender the land so as to make available some green belt and open space popularly ascribed to be lung space for the city. industries might have closed in terms of the order of this court and the compliance to the order was to this limited extent only. structures are still lying there and no surrender has yet taken place. majesty of law demanded compliance in observance rather than in its breach it is for the society only that this court thought it fit to pass order to the extent as indicated above the capital city of the country ought not to be termed as the most polluted city in the world: it is with this spirit that the public interest litigation was filed and this court also maintained the same by directing the shifting of h category industries five years have passed by and not one industry has surrendered though of course, by reason therefore, show-cause notice to these industries were issued by the order dated 21st september, 1999 and the public notice was directed to be issued by an order dated 12th october, 1999. the matters are pending in court but there has not been any change of situation. significantly by reason of a specific situation this court in the case of hindustan vegetables passed an order on7th december, 1999 directing the hindustan vegetables oil corporation to hand over 2 acres of the land only on which the factory premises stood and not the land measuring about 1.20 acres belonging to the factory and situated just abutting the other side of the road: as a matter of fact the land stands bifurcated by the road - one for the factory use and the other for the residential purposes and it is by reason of the peculiar factual elements, that this court passed an order directing only the factory area to be surrendered thus the order as passed on 7th december, 1999 in hindustan vegetables case cannot be termed to be of general application for surrender of all factory lands any interpretation which runs counter of the above would also be opposed to the true spirit of the order and there would be a total failure of the avowed objects of

social welfare and social benefit which has prompted court to pass the order dated 10th may, 1996.

this

mr. venugopal and mr. shanti bhushan, learned senior counsels appearing for the entrepreneurs however, complained of violation of fundamental rights under article 14. mr. shanti bhushan contended that factum of surrender would not arise since the industries which he represents are prepared to restart and relocate the industries within the ambits of the master plan and zonal development plans and this court ought in the fitness of things grant necessary clarification in regard thereto. in the similar vein mr. venugopal also submitted that light and service industries and household industrial units stands permitted in terms of the master plan for delhi and the zonal development plan does not contain any bar for their continuance in the event the same falls within the ambit of the master plan. mr. venugopal contended that though hazardous and noxious industrial units are not permitted in delhi and existing heavy and large scale industrial units both in terms of this courts order and in terms of the master plan are required to be relocated and shifted but the land which would become available on account of such shifting ought to be used for making up the deficiency as per the needs of the community based on norms given in the master plan. mr. venugopal contended that as a matter of fact in the event any land or part of the land so vacated is not needed for the deficiency of the community service the master plan for delhi itself records that the same would be used as per prescribed land use. strong emphasis 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 for ready reference:heavy and large industries refer annexure iii h(b) a. b.. (c) the land which would become available on account of shifting as administered in (b) above, would be used for making up the deficiency, as per the needs of the community; based on norms given in the master plan; if any land or part of land so vacated is not needed for the deficiency of the community services, it will be used as per prescribed land use; however the land shall be used for light and service industries, even if the land use according to the master plan/zonal development plan is extensive industry

(emphasis supplied). (d) modernisation of heavy and large scale industrial units shall be permitted subject to the following conditions: (i) it will reduce pollution and traffic congestion. (ii) whenever the unit is asked to shift according to the policies of the plan, no compensation shall be paid for assets attained because of modernisation. much emphasis has been laid on the word however (as emphasised above) and relying thereon it has been contended that user of land, in the event the same is not needed for deficiency of community services, can thus be had for light and service industries even if the master plan or zonal development plan depicts its user as extensive industry. further reliance was also placed on paragraph (d) of the master plan that even modernisation of heavy and large scale industrial units is permitted though subject to the conditions specified in (i) and (ii) above. it is in this context also our attention has been drawn to the zonal development plan in particular the existing land use and the proposed land use in sub-zone g. in reference to the same mr. venugopal contended that existing land use totals 5456.32 hectare whereas the proposed land use is identical in area no doubt the submission at the first blush seems to be rather attractive but when read in the light of the decision of this court as recorded in the judgment dated 10th may, 1996 we are afraid that the same pales into its insignificance since the submission cannot be countenanced at this juncture and after the expiry of five years. there were altogether in the records of this court 96 applications for review which had the fate of dismissal by this court from time to time as detailed herein before in this judgment - it is thus probably a bit too late in the day to contend and take recourse to the rules to avoid surrender of land. this courts order has been categorical and it is only expected that the entrepreneurs would act in terms therewith and not de hors the same. needless to dilate that in the case of swatantra bharat mills and dcm silk mills, the learned district and sessions judge, delhi recorded in the order dated 25th july, 2000 about the factum of filing of objections to the execution petitions pertaining to the surrender of land. the order of the learned judge records that the land in question has not been offered as yet and as such directed the industry to remove all the superstructures from the land and also file an undertaking that it is free from all encumbrances. the land should further be accessible from the public road; be it recorded that the

two industries named above in which the learned district and sessions judge passed the directions as above in no uncertain terms submitted that the land to be offered, stands free from all encumbrances and there is existing no cloud on the title of the industry over the land which is to be surrendered. mr. gopal subramaniam, learned senior counsel appearing for the entrepreneurs also contended in the same vein that as a matter of fact, the master plan and the zonal development plans having statutory recognition in terms of the delhi development act, 1957, paragraphs © and (d) as noticed above under the title work centres industry ought to be given its full play and the order of this court, thus should be modified to incorporate the same. incidentally, it has been contended rather strongly that the master plan being the golden thread in the orders passed by this court from time to time, and since there is available under the master plan some relief the same ought to be made available to the entrepreneurs. in this context paragraph 11 of the judgment dated 10th may, 1996 (supra) may be noticed and which reads as below:the dda has suggested that it may be necessary to amend the master plan for regularising the land use as directed by us. we do not agree with the suggestion. the totality of the land made available as a result of the relocation/shifting of the industries is to be used for the community needs. the land surrendered by the owner has to be used for the development of green belt and open spaces. the land left with the owner is to be developed in accordance with the user permitted under the master plan. in either way the development is to meet the community needs which is in conformity with the provisions of the master plan. we would also deem it fit to quote paragraph 12 as below for consideration of this aspect of the matter: we are, therefore, of the view that it is not necessary to amend the master plan. while it is true that this court has directed user of land left with the owner to be developed in accordance with the user permitted under the master plan but the whole aim, object and spirit of the order was to meet the community need and it is in this context also that mr. gopal subramaniam drew our attention to the appendix to the zonal development plan pertaining to area g. we are however unable to accede to such a submission since time has not come as yet in any event to assess the situation in its entirety. the zonal development plans produced before the

court has not been finalised as yet since it is presently in the draft stage and as such no reliance can be placed by this court on the data and the materials available thereon. a proposal cannot be said to be a final declaration of the community need. we are thus unable to record our concurrence therewith for the reasons noticed above. order of this court dated 4th december, 1996 in the matter in issue ( 1997 (11) scc 327) was passed in an interlocutory application for directions filed by the union of india wherein 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 through the order of this court in m.c. mehta v. union of india (1996 (4) scc 351) regarding land-use along with the order dated 8.7.1996 (m.c. mehta v. union of india (1996) 4 scc 750) regarding relocation of 168 industries. the intention of this court is clear that the order regarding land re-use was both for relocating industries as well as those which decide to close down and not to relocate. (emphasis supplied) the learned counsel for the industries have not disputed this interpretation. we, therefore, accept the contention of learned additional solicitor general. nothing more need be said on this point. 3. we see considerable force in the contention of the learned additional solicitor general on the second point also. 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 industries which have been closed down shall have to undertake fresh procedure for setting up of a new industry. needless to say that no industry can be set up which is not permitted under the master plan. the procedure required for setting up of a new industry shall have to be followed in every case. we make it clear that government permission and the consent from the pollution control board/committee, if required under law, shall have to be obtained. even fresh electric connection and water connection shall have to be applied for and obtained in the changed circumstances. we have no doubt when approached for necessary permission/licence/ water/electric connections the authorities shall expedite in dealing with the applications.

the

the order as above thus unmistakably depicts the intention of this court to rely on its order dated 10th may, 1996 though with certain variations as noticed herein before in this judgment. setting up of industries was expressly authorised, upon compliance with all regulatory requirements, unfortunately however though certain advantages has been made available, but not one of the

learned advocates could respond in the affirmative even on a specific enquiry from the court. the issues are long pending- the issues are urgent since the entire society is impaired no exception can be taken to the legal battles involved in an adversarial litigation this is not one such instance: it is a true public interest litigation for the protection of the society and to avoid a deliberate peril arising out of entrepreneurial failure and total apathy and non-concern for social good and benefit. the delhi development act of 1957 envisaged preparation of master plan for delhi with a definite statutory direction to define various zones into which delhi may be divided for the purposes of development and the manner in which the land in each zone is proposed to be used and the stages by which such development shall be carried out. as a matter of fact the master plan came into existence in 1962 and h category industries ought to have shifted out of the area specified therein by 1962 itself. then came the master plan of 1990 to combat the existing situation with a specified period of shifting within three years i.e. there was an obligation to the h category industries to shift and relocate in terms of the master plan by the year 1993 and the social activist by reason of the failure of the entrepreneurs, moved this court in 1995 whereupon after allowing all possible opportunities to all entrepreneurs and upon assessment of the situation through the appointments of commissions and obtaining various reports on these aspects, passed the order on 10th may, 1996 which has till date not been complied with an indeed a sorry state of affairs and a total neglect and apathy towards the society, new and novel submissions advanced as in any adversarial litigation but unfortunately as noticed above it is too late in the day to contend otherwise 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 the affect that within one month all the industries which are required to surrender land in terms of this courts order dated 10th may, 1996 should voluntarily surrender the same to the delhi development authority and if the same has not been done the dda will be duty bound to file an application for execution of this courts order before the district judge, delhi and the district judge shall thereupon execute this courts order and report compliance within four weeks of the filing of the execution application. be it noted that by the order last referred, this court further directed that the execution application to be filed by dda not later than 8 weeks from the date of the order the entrepreneurs should have some regard and sanctity for the orders of this court rather than pleading anew before the court for further clarification [if assuming we ascribe the same to be

are

clarification rather than review] can this be termed to be in consonance with the law or is it a deliberate attempt to ridicule the courts order? we will not be very wrong if we answerthe same that probably the second alternative is the answer. the dda also has raised certain inquiries before this court again after the specific direction of this court in 28th april, 2000s order. we are at a loss as to why after the specific order of the learned district judge instead of relying thereon, a further application has been filed before this court in july, 2000. dda is expected to act in terms of the order expeditiously rather than with the delayed whip in its hands. in any event we answer inquiries raised in the manner following:re (i).. so far as the first issue is concerned, we make it clear that the order dated 7.12.1999, in the case of vegetable oil was in the peculiar facts of that case and is not of universal application, nor does it in any way dilute the mandate of the order of this court dated 10.5.1996 directing surrender of entire land subject to the extent of availability to the owner as per order dated 10.5.1996 reported 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 the road, then he must surrender with the approach, so that the surrendered 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 not arise and as such surrender shall take effect on as is where is basis. on the question as to the land to be surrendered should be free from encumbrance, we are of the view, if the land is already encumbered, then a direction to release it from encumbrance and surrender will be a great burden. at the same time, such land will be of no use to the society unless released from encumbrance. in the circumstances we direct that the owner cannot utilise the land available to him by virtue of order of this court dated 10.5.96, until he releases the surrendered landfrom encumbrance. further if it is not made free from encumbrance within five years, then he will not get the benefit of the order dated 10.5.96 and after five years even the land which the owner was otherwise entitled to retain would stand vested with dda for the use and the need of the society.

the

re(iii) so far as the third issue is concerned, those who are required to surrender upto 100 sq. meter after that extent of land becomes available to them under the order of this court dated 10.5.96 they need not surrender, 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, it is to be noted that on the application of the union of india, this court by order dated 4.12.96 in ia no.36 in writ petition no.4677 of 1985, accepting the 2nd contention of the learned additional solicitor general, held that the occupants of the plots and the owners of the industries which have been closed down shall have to undertake fresh procedure for setting up of a new industry and such industry can be established if permissible under the master plan. the court also observed that when approached for necessary permission/license/water/ electric connections, the authorities shall expedite in dealing the applications. (see 1997 (11) scc 327). in view of the aforesaid clarificatory order of the court on the application of the union government, it would not be necessary for those units who have started new industries after obtaining clearances from various departments, provided that the master plan permits establishment of such industries, to surrender the land. but those who have not started such industries with appropriate clearance from the competent authority, they cannot be permitted to take the stand that they intend to start such industry nor such a plea will entitle them to retain the land. they must be bound by the earlier direction of the court requiring them to surrender. this will apply to those industries which have not relocated the hazardous industries elsewhere. but if they have relocated, they cannot get the benefit, as has been held by the court in the order dated 28.4.2000, reported in 2000 (4) scale 267, re(v). so far as the fifth issue is concerned, if the names of the industries appear in the list of h categories in various orders of the court, and they have not appeared or put anyobjection, then it would not be permissible for them to put up the plea that industries were closed down prior to order dated 10.5.96 and claim an equitable right of not surrendering. re(vi) so far as the sixth issue is concerned, it is apparent that the order of the closure was on the industries which were found injurious, irrespective of the fact whether it was being carried on by the owner of the land or the tenant. this being the position, the subsequent direction of surrender also is in relation to the land on which such industries were being carried on and were ordered to be closed down. consequently, it is irrelevant where tenant after closing down the industries, handed over the premises to the owner. the owner in such case would be bound by the order for surrender, and will have to surrender.

interlocutory application filed by the dda thus stands disposed 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 by its judgment dated december 13, 1996, has been placed before us for determination of the quantum of pollution fine. it may be stated that the main case was disposed of with following directions:- 1. the public trust doctrine, as discussed by us in this judgment is a part of the law of the land. 2. the prior approval granted by the government of

the

india, ministry of environment and forest by the letter dated november 24, 1993 and the lease-deed dated april 11, 1994 in favour of the motel are quashed. the lease granted to the motel by the said lease-deed in respect of 27 bighas and 12 biswas of area, is cancelled and set aside. the himachal pradesh government shall take over the area and restore it to its original-natural conditions. 3. the motel shall pay compensation by way of cost for the restitution of the environment and ecology of the area. the pollution caused by various constructions made by the motel in the river bed and the banks of the river beas has to be removed and reversed. we direct neeri through its director to inspect the area, if necessary, and give an assessment of the cost which is likely to be incurred for reversing the damage caused by the motel to the environment and ecology of the area. neeri may take into consideration the report by the board in this respect. 4. the motel through its management shall show cause why pollution fine in addition be not imposed on the motel. 5. the motel shall construct a boundary wall at a distance of not more than 4 meters from the cluster of rooms (main building of the motel) towards the river basin. the boundary wall shall be on the area of the motel which is covered by the lease dated september 29, 1981. the motel shall not encroach/cover/utilise any part of the river basin. the boundary wall shall separate the motel building from the river basin. the river bank and the river basin shall be left open for the public use. 6. the motel shall not discharge untreated effluents into the river. we direct the himachal pradesh pollution control board to inspect the pollution control devices/treatment plants set up by the motel. if the effluent/waste discharged by the motel is not conforming to the prescribed standards, action in accordance with law be taken against the motel. 7. the himachal pradesh pollution control board shall not permit the discharge of untreated effluent into river beas. the board shall inspect all the hotels/institutions/factories in kullu-manali area and in case any of them are discharging untreated effluent/waste into the river, the board shall take action in accordance with law. 8. the motel shall show cause on december 18, 1996 why pollution-fine anddamages be not imposed as directed by us. neeri shall send its report by december 17, 1996. to be listed on december 18, 1996." pursuant to the above order, notice was issued requiring the motel to show-cause on two points; (i) why the motel be not asked to pay 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 span motel private ltd., has contended that though it is open to the court, in proceedings under article 32 of the constitution, to grant compensation to the victims whose

fundamental rights might have been violated or who are the victims of an arbitrary executive action or victims of atrocious behaviour of public authorities in violation of public duties cast upon them, it cannot impose any fine on those who are guilty of that action. he contended that the fine is a component of criminal jurisprudence and cannot be utilised in civil proceedings specially under article 32 or 226 of the constitution either by this court or the high court as imposition of fine would be contrary to the provisions contained in article 20 and 21 of the constitution. it is contended that fine can be imposed upon a person only if it is provided by a statute and gives jurisdiction to the court to inflict or impose that fine after giving a fair trial to that person but in the absence of any statutory provision, a person cannot be penalised and no fine can be imposed upon him. mr. m.c. mehta, who has been pursuing this case with the usual vigour and vehemence, has contended that if a person disturbs the ecological balance and tinkers with the natural conditions of rivers, forests, air and water, which are the gifts of nature, he would be guilty of violating not only the fundamental rights, guaranteed under article 21 of the constitution, but also be violating the fundamental duties to protect environment under article 51a(g) which provides that it shall be the duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife and to show compassion for living creatures. the planet earth which is inhabited by human beings and other living creatures, including animals and birds, has been so created as to cater to the basic needs of all the living creatures. living creatures do not necessarily mean the human beings, the animals, the birds, the fish, the worms, the sepents, the hydras, but also the plants of different varieties, 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, including human beings, lived peacefully all along. but when the human beings started acting inhumanly, the era of distress began which in it wake brought new problems for survival. the industrial revolution brought an awakening among the men inhabiting this earth that the nature, with all its resources was not unlimited and forever renewable. the uncontrolled industrial development generating tonnes of industrial waste disturbed the ecological balance by polluting the air and water which in turn, had a devastating effect on the wildlife and, therefore, the early efforts to protect the environment related to the protection of wildlife. but then the two world wars, the first world war (1914-1918) and the second world war (1939 to 1945) during which atomic bombs were exploded resulting in the loss of

thousands of lives and burning down of vast expanses of forests, made the man realise that if the environmental disturbances were not controlled, his own survival on this planet would become impossible. the united nations, therefore, held a conference on human environment stockholm in 1972. in the wake of the resolutions adopted at that conference, different countries at different stages enacted laws to protect the deteriorating conditions of environment. here in india, the legislature enacted three acts, namely, the water (prevention & control of pollution) act, 1974; the air (prevention & control of pollution) act, 1981 and the environment (protection) act, 1986. it also enacted the water (prevention & control of pollution) cess act, 1977. under these acts, rules have been framed to give effect to the provisions thereof. they are : the water (prevention and control of pollution) rules, 1975; the water (prevention & control of pollution) cess rules, 1978; the air (prevention and control of pollution) rules, 1982; the air (prevention & control of pollution) (union territories) rules, 1983; the environment (protection) rules, 1986; the hazardous wastes (management and handling) rules, 1989; the manufacture, storage and import of hazardous chemicals rules, 1989, the chemical accidents (emergency planning, preparedness and response) rules, 1996 and hosts of other rules and notifications. in addition to these acts and rules, there are, on the statute book, other acts dealing, in a way, with the environmental laws, for example, the indian forest act, 1927; the forest (conservation) act, 1980; the wildlife (protection) act, 1972 and the rules framed under these acts. various states in india have also made their environmental laws and rules for the protection of environment. apart from the above statutes and the rules made thereunder, article 48a of the constitution provides that the state shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. one of the fundamental duties of every citizen as set out in article 51a(g) is to protect and improve the natural environment, including forests, lakes, rivers and wildlife and to have compassion for living creatures. these two articles have to be considered in the light of article 21 of the constitution which provides that no person shall be deprived of his life and liberty except in accordance with the procedure established by law. any disturbance of the basic environment elements, namely air, water and soil, which are necessary for "life", would be hazardous to "life" within the meaning of article 21 of the constitution. in the matter of enforcement of rights under article 21 of the constitution, this court, besides enforcing the provisions of the acts referred to above, has also given effect to fundamental rights under article 14 and 21 of the

at

constitution and has held that if those rights are violated by disturbing the environment, it can award damages not only for the restoration of the ecological balance, but also for the victims who have suffered due to that disturbance. in order 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 judgments has given effect to the rights available, to the citizens and persons alike, under article 21 of the constitution. the judgment for removal of hazardous and obnoxious industries from the residential areas, the directions for closure of certain hazardous industries, the directions for closure of slaughter-house and its relocation, the various directions issued for the protection of the ridge area in delhi, the directions for setting up effluent treatment plants to the industries located in delhi, the directions to tanneries etc., are all judgments which seek to protect environment. in the matter of enforcement of fundamental rights under article 21, under public law domain, the court, in exercise of its powers under article 32 of the constitution, has awarded damages against those who have been responsible for disturbing the ecological balance either by running the industries or any other activity which has the effect of causing pollution in the environment. the court while awarding damages also enforces the "polluter pays principle" which is widely accepted asa means of paying for the cost of pollution and control. to put in other words, the wrongdoer, the polluter, is under an obligation to make good the damage caused to the environment. the recognition of the vice of pollution and its impact on future resources was realised during the early part of 1970. the united nations economic commission for europe, during a panel discussion in 1971, concluded that the total environmental expenditure required for improvement of the environment was overestimated but could be reduced by increased environmental awareness and control. in 1972, the organisation for economic cooperation and development adopted the "polluter pays principle" as a recommendable method for pollution cost allocation. this principle was also discussed during the 1972 paris summit. in 1974, the european community recommended the application of the principle by its member states so that the costs associated with environmental protection against pollution may be allocated according to uniform principles throughout the community. in 1989, the organisation for economic cooperation and development reaffirmed its use and extended its application to include costs of accidental pollution. in 1987, the principle was acknowledged as a binding principle of law as it was incorporated in european community law through the enactment of the single european act, 1987. article 130r.2 of the 1992 maastricht treaty

provides that community environment policy "shall be based on the principle that the polluter should pay." "polluter pays principle" has also been applied by this court in various decisions. in indian council for enviro legal action vs. union of india, air 1996 sc 1446 = 1996 (2) scr 503 = (1996) 3 scc 212 = jt 1996 (2) sc 196, it was held that once the activity carried on was hazardous or inherently dangerous, the person carrying on that activity was liable to make good the loss caused to any other person by that activity. this principle was also followed in vellore citizens welfare forum vs. union of india & ors., air 1996 sc 2715 = (1996) 5 scc 647= jt 1996 (7) sc 375 which has also been discussed in the present case in the main judgment. it was for this reason that the motel was directed to pay compensation by way of cost for the restitution of the environment ecology of the area. but it is the further direction why pollution fine, in addition, be not imposed which is the subject matter of the present discussion. chapter vii of the water (prevention and control of pollution) act, 1974 contains the provisions dealing with penalties and procedure. this chapter consists of sections 41 to 50. sub-section (2) and (3) of section 41 provide for the punishment and imposition of fine. they are quoted below:- "41.(2) whoever fails to comply with any order issued under clause (e) of sub-section (1) of section 32 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, be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and fine, and in case the failure continues, with an additional fine which may extend to five thousand rupees for every day during which such failure continues after the conviction for the first such failure. (3) if the failure referred to in sub-section (2) continues beyond a period of one year after the date of conviction, the offender shall, on conviction, be punishable with imprisonment for a term which shall not be less than two years but which may extend to seven years and with fine." similarly, section 42 provides that a person shall be liable to be punished with imprisonment for a term which may extend to three months or with fine which may extend to ten thousand rupees or with both. sub-section (2) of section 42 also contemplates imprisonment for a term which may extend to three months or with fine which may extend to ten thousand rupees or with both. section 43 contemplates penalty for contravention of the provisions of section 24. section 44 contemplates penalty for contravention of section 25 or section 26. they also contemplate imposition of fine. section 45 provides that if a person who has been convicted of any offence under section 24 or section 25 or section 26 is again found guilty

of an offence involving a contravention of the same provision, he shall, on the second and on every subsequent conviction, be punishable with imprisonment for a term which shall not be less than two years but which may extend to seven years and with fine. section 45a provides that whoever contravenes any of the provisions of this act or fails to comply with any order or direction given under this act, for which no penalty has been elsewhere provided in this act, shall be punishable with imprisonment which may extend to three months or with fine which may extend to ten thousand rupees or with both and in the case of continuing contravention or failure, he may be punished with an additional fine. section 47 contemplatesoffences by companies while section 48 contemplates offences government departments. section 15 of the environment (protection) act, 1986 provides for penalty for contravention of the provisions of the act and the rules, orders and directions made thereunder. sub-section (1) of section 15 speaks of imprisonment for a term which may extend to five years or with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention. section 16 of the act contemplates offences by the companies while section 17 contemplates offences by government departments. chapter vi 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 37 provides penalties for failure to comply with the provisions of section 21 or section 22 or with the directions issued under section 31a. it provides that the person shall be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine, and in case the failure continues, with an additional fine which may extend to five thousand rupees for every day. sub-section (2) of this section provides that if the failure continues beyond the period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to seven years and with fine. section 38 also provides penalties for certain acts and it provides that for such acts as are referred to in that section, a person shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to ten thousand rupees or with both. section 39 contemplates penalty for contravention of certain provisions of the act and it provides for imprisonment for a term which may extend to three months or with fine which may extend to ten thousand rupees or with

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both, and in the case of continuing contravention, with an additional fine which may extend to five thousand rupees for every day during which such contravention continues after conviction for the first such contravention. section 40 speaks of offences by companies while section 41 speaks of offences by government departments. all the three acts, referred to above, also contemplate the taking of the cognizance ofthe offences by the court. thus, a person guilty of contravention of provisions of any of the three acts which constitutes an offence has to be prosecuted for such offence and in case the offence is found proved then alone he can be punished with imprisonment and fine or both. the sine qua non for punishment of imprisonment and fine is a fair trial in a competent court. the punishment of imprisonment or fine can be imposed only after the person is found guilty. in the instant case, a finding has been recorded that m/s span motel had interfered with the natural flow of river and thus disturbed the environment and ecology of the area. it has been held liable to pay damages. the quantum of damages is under the process of being determined. the court directed a notice to be issued to show cause why pollution fine be not imposed. in view of the above, it is difficult for us to hold that the pollution fine can be imposed upon m/s span motel without there being any trial and without there being any finding that m/s span motel was guilty of the offence under the act and are, therefore, liable to be punished with imprisonment or with fine. this notice has been issued without reference to any provision of the act. the contention that the notice should be treated to have been issued in exercise of power under article 142 of the constitution cannot be accepted as this article cannot be pressed into aid in a situation where action under that article would amount to contravention of the specific provisions of the act itself. a fine is to be imposed upon the person who is found guilty of having contravened any of the provisions of the act. he has to be tried for the specific offence and then on being found guilty, he may be punished either by sentencing him to undergo imprisonment for the period contemplated by the act or with fine or with both. but recourse cannot be taken to article 142 to inflict upon him this punishment. the scope of article 142 was considered in several decisions and recently in supreme court bar association vs. union of india, air 1998 sc 1895 = (1998) 4 scc 409, by which the decision of this court in v.c. mishra, re, (1995) 2 scc 584, was partly overruled, it was held that the plenary power of this court under article 142 of the constitution are inherent in the court and are "complementary" to those powers which arespecifically conferred on the court by various statutes. this power exists as a separate and independent basis of jurisdiction apart from the statutes. the court further observedthat

though the powers conferred on the court by article 142 are curative in nature, they cannot be construed as powers which authorise the court to ignore the substantive rights of a litigant. the court further observed that this power cannot be used to "supplant" substantive law applicable to the case or cause under consideration of the court. article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby achieve something indirectly which cannot achieved directly. similarly, in m.s. ahlawat vs. union of india & anr., air 2000 sc 168 = (2000) 1 scc 278, it was held that under article 142 of the constitution, the supreme court cannot altogether ignore the substantive provisions of a statute and pass orders concerning an issue which can be settled only through a mechanism prescribed in another statute. thus, in addition to the damages which have to be paid by m/s span motel, as directed in the main judgment, it cannot be punished with fine unless the entire procedure prescribed under the act is followed and m/s span motel are tried for any of the offences contemplated by the act and is found guilty. the notice issued to m/s span motel why pollution fine be not imposed upon them is, therefore, withdrawn. but the matter does not end here. pollution is a civil wrong. by its very nature, it is a tort committed against the community as a whole. a person, therefore, who is guilty of causing pollution has to pay damages (compensation) for restoration of the environment and ecology. he has also to pay damages to those who have suffered loss on account of the act of the offender. the powers of this court under article 32 are not restricted and it can award damages in a pil or a writ petition as has been held in a series of decisions. in addition to damages aforesaid, the person guilty of causing pollution can also be held liable to pay exemplary damages so that it may act as a deterrent for others not to cause pollution in any manner. unfortunately, notice for exmeplary damages was not issued to m/s span motel although it ought to have been issued. the considerations for which "fine" can be imposed upon a person guilty of committing an offence are different from those on the basis of which exemplary damages can be awarded. while withdrawing the notice for payment of pollution fine, we direct a fresh notice be issued to m/s span motel to show cause why in addition to damages, exemplary damages be not awarded for having committed the acts set out and detailed in the main judgment. this notice shall be returnable within six weeks. this question shall be heard at the time of quantification of damages under the main judgment.

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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: der m.jagannadha rao,j. this application has been filed by the gas authority of india limited (for short `gail') for the following reliefs:

"(a) extend the schedule for supply of gas to industries in zone-i of agra city, laid down vide the order dated 3/04/98 passed by this hon'ble court in such a manner that in respect of cupola based industries supply of gas by gail coincides with the readiness of the consumer industries to draw gas; (b) direct non-cupola based industries in zone-i of agra to draw gas latest by september, 1999; (c) direct the secretary, pwd, government of uttar pradesh, and secretary/director general, government of india, ministry of surface transport to grant the permission for underpinning the gas pipeline to the yamuna road bridge within four weeks so that gail may be able to the schedule for supply of gas to zone-ii and iii laid down by this hon'ble court vide its order dated 3/04/98." the first relief concerns zone-i and the second relief concerns zone-ii andiii in the city of agra. we shall first deal with zone-i and thereafter with zone ii and iii. zone i. on 3.4.1998, this court directed the gail that it should start supply of natural gas to the industries in zone-i from july, 1998 so as to make available gas to the specified industries by december, 1998. it is now stated by gail that till december, 1998, 115 consumers out of 168 (referred to the order of this court dated 30.12.96) alone had contacted gail for supply of natural gas. other industries in zone-i did not contact gail. it was stated that gail had made gas available in april, 1998 to its first consumer in may, 1998 and that by september, 1998, gail had completed gas pipeline network to supply gas to all the 115 consumers with whom it had entered into a contract in zonei. the complaint is that 79 out of these 115 consumers are not coming forward in zone-i and are cupola based iron foundries. the rest are non cupola. all these 115 had given an undertaking earlier to receive natural gas from gail. these 79 industries have been awaiting the technology to be developed by the national metallurgical laboratory (hereinafter called the `nml') for conversion to natural gas. gail feels that there is likelihood of delay in the drawal of gas by the 79 cupola based iron foundries in zone-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 79 industries in zone-i requiring them to show cause why they were not availing of the gas facility to be supplied by gail. they were also asked to state why they did not want to 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 founding association has been filed stating that 78 (and not 79) were cupola based (item 74 diwan chand suraj prakash jain is not cupola based). the affidavit is filed on behalf of 78 cupola based industries. they admit that on 30.12.1996, in m.c.mehta vs.union of india 1997 (2) scc 353, orders have been passed recording the undertaking on behalf of these industries for receiving gas as industrial fuel. they then refer to the chronology of the steps taken by them bonafide for conversion by approaching nml and tata-korf and their spending huge sums of money in that connection. they state that the problem is that fool-proof technology for these 78 industries to use natural gas is not yet ready, though now it is in the last stages of completion, -through the efforts of nml of tata-korf who have been working on a project. as soon as the technology is available, the 78 industries will switch-over to natural gas. they rely on the extension granted to gail earlier upto december, 1998 as the cause for delay in switching over. nml has conducted 10 trials on its new technology but these tests have not been initially successful. the 78 industries have entered into agreement with gail agreeing to switch over to natural gas and have paid rs.2 lakhs as security and given rs.6 lakhs guarantee/indemnity. they have paid rs.14 lakhs to tata korf in january, 1998. on 6.2.1998 nml and tata korf visited agra and on 10.2.78, the association placed orders with tata korf for supply of the technology. on 19.3.1998, the association has entered into agreement with tata korf under which rs.20 lakhs have been paid as advance out of rs.40 lakhs. know how has been agreed to be provided by 31.7.1999 but the trial runs have failed. a chart is filed in this behalf. in all, 32 lakhs have been paid to tata korf. on 22.4.1999, there has been a meeting with tatakorf. all these steps have been taken during 1997, 1998 upto 22.4.1999. on 26.4.1999, tata korf has written to the association that the commissioning of the cupola and stabilizing same will take place in 1st part of july, 1999 and they expect "to receive the orders" from the association in july, 1999 after the cupola is successfully worked to the satisfaction of the association. the schedule of supply of cupola is: (a) 10 cupolas in 4 months (b) in each month 5-6 cupolas can be completed. the

after installation, those cupolas require fine tuning. on 3.8.1999, tata korf has written to the association that they had installed the new instrumentation successfully on 15.6.1999. some more heats have to be developed. the demonstration unit will be established fully by end of september, 1999. same schedule of supply as stated earlier is given. we have heard learned senior counsel sri v.r.reddy for gail and sri sanjay parikh for the association. we have also heard sri krishan mahajan and sri vijay panjwani. learned counsel sri krishan mahajan has suggested that these 78 industries have been dodging and procrastinating in shifting to natural gas and that as per the orders of this court dated 30.12.1996 in m.c.mehta vs. union of india 1997 (2) scc 353, direction no. 5 requires that once the gail is ready, the industries, if they did not convert to natural gas, they have to close down. now gail has been ready supply of natural gas in september 1999 and at any rate by december, 1999 in respect of all the 115 industries who have agreed to convert to gas. inasmuch as these 78 industries have not become ready to convert, they are liable to be closed down forthwith. on the other hand, learned counsel for the association sri sanjay parikh has contended that in view of the above steps taken by the industries during 1997, 1998 and 1999 as narrated earlier, the stage is now set for switch over and that it will create great hardship if the industries are to be directed to be closed down now. summarising the position, it is as follows. the correspondence between the association and nml and tata korf, it shows that by end of september, 1999, the demonstration unit will be established. thereafter, cupola will be supplied - 10 in 4 months and then in each month, 5 or 6 cupolas will be supplied. now, going by the date september, 1999, it looks as if 10 cupola units will be supplied by january, 2000 ( i.e. in 4 months ) and by the time all these 78 cupola industries change over to gas, ( as per the time schedule given by tata korf) it will be another 17 months - which will take us to july, 2001. this will be the time span on the assumption that conversion to natural gas will be started by these 78 industries after september, 1999. now in the orders of this court dated 30.12.1996, the directions (4) and (5) read as follows: (at p.304): "(4). those industries which neither apply for gas connection nor for alternative industrial plot shall functioning with the aid of coke/coal in the ttz w.e.f. stop

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april 30, 1997. supply of coke/coal to these industries shall be stopped forthwith. the district magistrate and the superintendent of police shall have this order complied with. (5) the gail shall commence supply of gas to the industries by june 30, 1997. as soon as the gas supply to an industry commences, the supply of coke/coal to the said industry shall be stopped with immediate effect." in the above background, the question is whether these 78 cupola industries are to be allowed to function on coal/coke without receiving natural gas. so far as the remaining non-cupola industries which are 37 (out of 115) who have contracted to draw, there is no reason why they have not accepted the supply of natural gas. out of these, we are told only 8 industries were drawing natural gas. the rest 29 have been obviously taking it easy. we can divide the discussion into the various categories as follows: (1) the overall total was 168 and only 115 have entered into agreement with gail. therefore, so far as the remaining (168-115) = 53 iron foundries are concerned, there is no justification for them to function - unless they have shifted out - and under clause 4 of the order dated 30.12.1996 of this court, the said 53 iron foundries are already liable to be closed. if they have not shifted, these 53 industries must stop forthwith as they have acted in breach of direction no.4. (2) so far as the 29 non-cupola industriesout of 115 (excluding 8 which have switched over to gas), there can be no difficulty in applying clause 5 of the order of this court. if by 15.9.1999, these 29 industries do not accept gas, clause 5 of the order dated 30.12.1996 shall apply forthwith to them. (3) so far as the 78 cupola based industries are concerned, the question is what order is to be passed? we have shown that even if the conversion starts from october, 1999, the time frame for all the 78 industries will be easily 21 months - which will take us to july 2001. this court has given enough time to these industries right from 31.12.1996. we do not mean to say that they have not taken some steps for conversion but if the tata korf time-schedule can give the conversion technology to all the 78 of them at the earliest only by july 2001, the question is whether these 78 coke/coal based industries which are continuously using coke/coal can be allowed to pollute the air in and around the taj trapezium and also whether they are to be allowed such a long period upto july 2001. we cannot lose sight of the fact that gail has completed its obligation to be ready, even by september, 1998. no doubt, even now, as

stated by counsel, these 78 industries are prepared to stand by the undertaking given by them to to this court to receive natural gas. in our view, having regard to the fact that the conversion of all these 78 cupola based industries is likely to be not completed till july, 2001 - it will be a matter of grave concern if the atmospheric pollution(as noted in the neeri and dr. varadarajan reports and our earlier orders) is allowed to continue. question is not strictly whether the 78 industries have or have not acted bonafide in making some efforts for conversion to natural gas but assuming they have taken some steps, the question is whether the danger to the environment does not require urgent action. the data already collected shows high levels of pollution in agra in this area affecting the environment in the ttz area. in the circumstances, we are of the view that there is no other way to deal with the situation than to apply clause (5) of the order of this court dated 30.12.1996 set out above, strictly to these 78 cupola based industries. we are conscious that any order to stop supply of coke/coal to the 78 coke/coal based iron foundries will result in the closing down of these 78 industries for some time, before they are able to switch on to natural gas. obviously, the closure will have not be permanent one but of a temporary nature. there will be no difficulty in permitting them to re-open as soon as they have the cupola conversion technology installed in their respective industries. we are, therefore, compelled to put clause (5) of the order of this court into full effect in respect of these 78 industries w.e.f. 15.9.1999. in the result, we direct as follows:- (1) out of 168, 53 iron foundries which have not agreed to accept gas have to be closed forthwith, if not already closed as per orders of this court dated 30.12.1996 unless they have shifted. the district magistrate and superintendent of police, agra shall take action accordingly. (2)(i) out of 115 which have opted and entered into agreements with gail, 37 are non-cupola based and among the 8 have converted to natural gas while in respect of the remaining 29 non-cupola industries. clause (5) of the order of this court dated 30.12.96 shall come into operation w.e.f. 15.9.1999, for they have no excuse for not accepting the natural gas from gail. the district magistrate and superintendent of police, agra will take steps to close down these industries by 15.9.1999. (ii) however, as and when these 29 non-cupola industries take steps to receive gas, they shall be allowed to function. (3)(i) in respect of the remaining 78, which are cupola based, in view of the reasons given above, clause (5) of the order dated 30.12.96 of this court will come into operation w.e.f. 15.9.1999. that will mean that in respect of these 78 iron founding industries, the district

magistrate, agra and the superintendent of police, agra will have to see to it that no coal/coke is supplied to them after 15.9.1999. (ii) out of the 78 cupola based iron foundries, as and when any of them gets converted to natural gas and takes steps to receive gas from gail, they will be allowed to function. we dispose of the ia in respect of zone-i accordingly. copy to be communicated to district magistrate and superintendent of police, agra. gail and sri krishan mahajan are requested to furnish a list of the respective industries to the above officials in a week. zone ii & zone iii so far as zone ii and zone iii are concerned, a number of affidavits have been filed by the gail and one by the government of india. as the matter is to be adjourned, we do not propose to give a detailed order. sri v.r.reddy, learned senior counsel for gail has placed before us the correspondence and contended that, by its affidavit, the union of india appears to have in principle, accepted that a pipeline can be allowed to be laid along the old yamuna bridge but that the union of india want to put gail on notice that, inasmuch as the old bridge may require to be dismantled bygovernment, - gail must be prepared to go ahead with laying down the pipeline with that possibility of the old bridge being dismantled. sri reddy however points out that there are reports of some technical experts that the old bridge need not be dismantled in the near future. he contends that, unfortunately, the government of india has not so far applied its mind to these reports and therefore it has to take a final decision in the matter of dismantling of the old yamuna bridge, after considering these reports. learned senior counsel contends that appropriate directions be given to the union of india in this behalf. in view of the above contention, we direct the union of india to examine the expert reports given in connection with the dismantling of the old bridge and take a final decision in regard to the same and give its response to this court by way of affidavit so that gail can take a decision as to the laying of its pipeline for supply of natural gas to zones ii and iii. response of union of india to be filed within four weeks. thus, we dispose of this i.a. so far as zone i is concerned. the i.a. now remains pending in respect of zone ii 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. baby krishna, p. sukumar, praveen kumar, romesh c. pathak m.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, jaideep gupta and sanjay hegde, advs. with them for the appearing parties. judgment the following judgment of the court was delivered: judgment 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 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 by deputy secretary to government, environment and forests department of tamil nadu, a list of villages affected by the tanneries 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 the effluent 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 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 order in respect or seven industries mentioned therein for a period 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 following order : "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 the closure orders in respect of various industries from time to

time enable the said industries to install the pollution control devices. this court by the order dated october 20, 1995 directed the national environmental engineering research institute, nagpur (neeri) to send a team of experts to examine, in particular, the feasibility of setting up of cetps for cluster of tanneries situated at, different places in, the state of tamil nadu where the work of setting up of the cetps has not started and also to inspect the existing cetps including those where construction work was in progress . neeri submitted its first report on december 9, 1995 and the second report on february 12, 1996. this court examined the two 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, 1996 and june 11, 1996 in respect of cetps set up by various industries. the neeri reports indicate that the physicochemical characteristics of ground water from dug wells in ranipath, thuthipath, valayambattu, vandyambadi and various

other places do not conform to the limits prescribed for drinking purposes. this court has been monitoring this petition for almost five years. the neeri, board and the central pollution control board (central board) have visited the tanning and other industries in the state of tamil nadu for several times. these expert bodies have offered all possible assistance to these industries. the neeri reports indicate that even the seven operational cetps are not functioning to its satisfaction. neeri has made several recommendations to be followed by the operational cetps. out of the 30 cetpsites which have been identified for tannery clusters in the five districts of north arcot ambedkar, erode periyar, dindigul anna, thrichi and chengai mgr. are under operation 10 are under construction and 13 are proposed. there are large number of tanneries which are not likely to be connected with any cetp and are required to set up pollution control devices on their own. despite repeated extensions granted by this court during the last five years and prior to that by the board the tanneries in the state of tamil nadu have miserably failed to control the pollution generated by them. it is no doubt correct that the leather industry in india has become a major foreign exchange earner and at present tamil nadu is the leading exporter of finished leather accounting for approximately 80% of the country's export. though the leather industry is of vital importance to the country as it generates foreign exchange and provides employment avenues it has no right to destroy the ecology, degrade the environment and pose as a health hazard. it cannot be permitted to expand or even to continue with the present production unless it tackles by itself the problem of pollution created by the said industry. the traditional concept that development and ecology are opposed to each of her, 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 court 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" 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 pring 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 153 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 and initiatives and agenda 21 a programme of action into the next century in areas like poverty, population and pollution. during the two decades from stockholm to rio "sustainable development" and came 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 eclogy and development has been accepted as a part of the customary international law though its salient feature have yet to be finalised by the international law jurists. some of the salient principles of "sustainable development", as culled-out from brundtland report and other international documents, are inter-generational equity, use and conservation of nature 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 vies 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 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 a sound principle by this court indian council for envirolegal action vs. union of india j.t. 1996 (2) 196. 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 any other person by 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 causedby them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take 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 absolute 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 sufferers 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 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 and improve the environment there are plenty of

his

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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 of the central pollution control board by the central government and the constitution of one 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 or streams and wells fordisposal 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 later 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 judgement. in view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays pcinciple are part of the environmental law of the country. even otherwise once these principles are accepted as part of the customary international law there would be no difficultly in accepting them as part of the domestic law. it is almost accepted proposition of law that the rule of customary international law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the courts of law. to support we may refer to justice h.r. khanna's opinion in addl. distt. magistrate jabalpur vs shivakant shukla (air 1976 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 a persons right to fresh air, clean water and pollution free environment, but the source of the right is the inalienable common law right of clean environment. it would be useful to quote a paragraph from blackstone's commentaries on the laws of england (commentaries on the laws of england of sir willian blackstone) vol.iii, fourth edition published in 1876. chapter xiii, "of nuisance" depicts the law on the subject 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 british common law the right of a person to pollution environment isa part of the basic jurisprudence of the land. the statement of objects and reasons to the environment act, 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,

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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 coordination 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 which are 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 contains useful provisions for controlling pollution. the main purpose of the act is to create an authority or authorities under section 3(3) of the act with adequate powers to control pollution and protect the environment. it is a pity that till date no authority has been constituted by the central government. the work which is required to be done by an authority in terms of section 3(3) read with other provision of the act is being done by this court and the other courts in the country. it is high time that the central government realises its responsibility and statutory duty to protect the degrading environment in the country. if the conditions in the five districts of tamil nadu, where tanneries are operating, are permitted to continue then in the near future all rivers/canals shall be polluted, underground waters contaminated, agricultural lands turned barren and the residents of the area exposed to serious diseases. lt is, therefore, necessary for this court to direct the central government to take immediate action under the provisions of the environment act. there are more than 900 tanneries operating in the five districts of tamil nadu. some of them may, by now, have installed the necessary pollution control measures, they have been polluting the environment for over a decade and in some cases even for a longer period. this court has in various orders indicated that these tanneries are liable to pay pollution fine. the polluters must compensate the affected persons and also pay the cost of restoring the

damaged ecology. mr. m.c. mehta, learned counsel for the petitioner has invited our attention to the notification goms no. 213 dated march 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 the highly polluting industries. we have our doubts whether the above quoted government order is being enforced by the tamil nadu government. the order has been issued to control pollution and protect the environment. we are of the view that the order should be strictly enforced and no industry listed in annexure-l to the order should be permitted to be set up in the prohibited area. learned counsel for the tanneries raised an objection that the standard regarding total dissolved solids (tds) fixed by the board was no. justified. this court by the order date april 9, 1996 directed the neeri to examine this aspect and give its opinion. in its report dated june 11, 1996 neeri has justified the standards stipulated by the board. the reasoning of the neeri given in its report dated june 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 35, 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 the rules to lay down standards for emissions or discharge of environmental pollutants. rule 3(2) of the rules even permit the board to specify more stringent standards from those provided under the rules. the neeri having justified the standards stipulated by the board, we direct that these standards are to be maintained by the tanneries and other industries in the state of tamil nadu. keeping in view the scenario discussed by us in this judgment, we order and direct as under:1. the central government shall constitute an authority under section 3(3) of the environment (protection) act, 1986 and shall confer on the said authority all the powers necessary to deal with the situation created by the tanneries and other polluting industries in the state of tamil nadu. the authority shall be headed by a retired judge of the high court and it may have other members- preferably with expertise in the field of pollution control and

environment protectionto be appointed by the central government. the central government shall confer on the said authority the powers to issue directions under section 5 of the environment act and for taking measures with respect to the matters referred to in clause (v), (vi) (vii) (viii) (ix) (x) and (xii) of sub-section (2) of section 3. the central government shall consitute the authority before september 30, 1996. 2. the authority so constituted by the central government shall implement the "precautionary principle" and the "polluter pays" principle. the authority shall, with the help of expert opinion and after giving opportunity to the concerned polluters assess the loss to the ecology\environment in the affected areas and shall also identify the individuals/families who have suffered because of the pollution and shall assess the compensation to be paid to the said individuals/families. the authority shall further determine the compensation to be recovered from the polluters as cost of reversing the damaged environment. the authority shall lay down just and fair procedure for completing the exercise. 3. the authority shall compute the compensation under two heads namely, for reversing the ecology and for payment to individuals. a statement showing the total amount to be recovered, the names of the polluters from who the amount is to be recovered, the amount to be recovered from each polluter, the persons to who the compensation is to be paid and the amount payable to each of them shall be forwarded to the collector\district magistrates of the area concerned. the collector\district magistrate shall recover the amount from the polluters, if necessary, as arrears of land revenue. he shall disburse the compensation awarded by the authority to be affected persons/families. 4. the authority shall direct the closure of the industry owned/managed by a polluter in case he evades or refuses to pay the compensation awarded against him. this shall be in addition to the recovery from his as arrears of land revenue. 5. an industry may have set up the necessary pollution control device at present but it shall be liable to pay for the past pollution generated by the said industry which has resulted in the environmental degradation and suffering to the residents of the area. 6. we imposepollution fine of rs. 10,000/- each on all the tanneries in the districts of north arcot ambedkar, erode periyar, dindigul anna, trichi and chengai m.g.r. the fine shall be paid before october 31, 1996 in the office of the collector/district magistrate concerned. we direct the collectors/district magistrates of these districts to recover the fines from the tanneries. the money shall be deposited, alongwith the compensation amount recovered from

the polluters, under a separate head called "environment protection fund" and shall be utilised for compensating the affected persons as identified by the authorities and also for restoring the damaged environment. the pollution fine is liable to the recovered as arrears of land revenue. the tanneries which fail to deposit the amount by october 31, 1996 shall be closed forthwith and shall also be liable under the contempt of courts act. 7. the authority, in consultation with expert bodies like neeri, central board, board shall frame scheme/schemes for reversing the damage caused to the ecology and environment by pollution in the state of tamil nadu. the scheme/schemes so framed shall be executed by the state government under the supervision of the central government. the expenditure shall be met from the "environment protection fund" and from other sources provided by the state government and the central government. 8. we suspend the closure orders in respect of all the tanneries in the five districts of north arcot ambedkar, erode periyar, dindigul anna, trichi and chengai m.g.r. we direct all the tanneries in the above five districts to set up cetps or individual pollution control devices on or before november 30, 1996. those connected with cetps shall have to install in addition the primary devices in the tanerries. all the tanneries in the above five districts shall obtain the consent of the board to function and operate with effect from december 15, 1996. the tanneries who are refused consent or who fail to obtain the consent of the board by december 15, 1996 shall be closed forthwith. 9. we direct the superintendent of police and the collector/district magistrate/deputy commissioner of the district concerned to close all those tanneries with immediate effect who fail to obtain the consent from the board by the said date. such tanneries shall not be reopened unless the authority permits them to do so. it would be open to the authority to close such tanneries permanently or to direct their relocation. 10. the government order no. 213 dated march 30, 1989 shall be enforced forthwith. no. new industry listed in annexure-i to the notification shall be permitted to be set up within the prohibited area. the authority shall review the case of all the industries which are already operating in the prohibited area and it would be open to authority to direct the relocation of any of such industries. 11. the standards stipuated by the board regarding total dissolved solids (tds) and approved by the neeri shall be operative. all the tanneries and other industries in the state of tamil nadu shall comply with the said standards. the quality of ambient waters has to be maintained through the standards stipulated by the board. we have issued comprehensive directions for achieving

the end result in this case. it is not necesary for this court to monitor these matters any further. we are of the view that the madras high court would be in a better position to monitor these matters hereinafter. we, therefore, request the chief justice of the madras high court to constitute a special bench "green bench" to deal with this case and other environmental matters. we make it clear that it would be open to the bench to pass any appropriate order/orders keeping in view the directions issued by us. we may mention that "green benches" already functioning in calcutta, madhya pradesh and some other high courts. we direct the registry of this court to send the records to the registry of the madras high matter as a petition under article 226 of the constitution of india and deal with it in accordance with law and also in terms of the directions issued by us. we give liberty to the parties to approach the high court as and when necessary. mr. m.c. mehta has been assisting this court to our utmost satisfaction. we place on record our appreciation for mr. mehta. we direct the state of tamil nadu to pay rs. 50,000/- towards legal fees and other out of pocket expenses incurred by mr. mehta.

are

petitioner: s. jagannath vs. respondent: union of india & ors. date of judgment: 11/12/1996

bench: kuldip singh, s. saghir ahmad.

act:

headnote:

judgment: judgment kuldip singh, j. shrimp (prawn culture industry is taking roots in india. since long the fishermen in indian have been following the traditional rice/shrimp rotating acqua culture system. rice is grown during part of the year and shrimp and other fish species are cultured during the rest of the year. however, during the last decade the traditional system which, apart from producing rice, produced 140 kgs. of shrimp per hectare ofland began to give way to more intensive methods of shrimp culture which could produce thousands of kilograms per hectare. a large number of private companies and multi-national corporations have started investing in shrimp farms. in the last few years more than eighty thousand hectares of land have been converted to shrimp farming. india's marine export weighed in a 70,000 tonnes in 1993 and these exports are projected to reach 200 thousand tonnes by the year 2000. the shrimp farming advocates regard acquaculture as potential savior of developing countries because it is a short-duration crop that provides a high investment return and enjoys and expanding market. the said expectation is sought to be achieved by replacing the environmentally benign traditional mode of culture by semi-intensive and intensive methods. more and more areas are being brought under semi-intensive and intensive modes of shrimp farming. the environmental impact of shrimp culture essentially depends on the mode of culture adopted in the shrimp farming. indeed, the new trend of more intensified shrimp farming in certain parts of the country - without much control of feeds, seeds and other inputs and water management practices - has brought to the fore a serious threat to the environment and ecology which has been highlighted before us. this petition under article 32 of the constitution of india - in public interest - has been filed by s. jagannathan, chairman, gram swaraj movement, a voluntary organisation working for the upliftment of the weaker section of society. the petitioner has sought the enforcement of coastal zone regulation notification dated february 19, 1991 issued by the government of india, stoppage of intensiveand semi-intensive type of prawn farming in the ecologically fragile coastal areas, prohibition from using the waste ands/wet lands for prawn farming and the constitution of a national coastal management authority to safeguard the marine life and coastal areas. various other prayers have been made in the writ petition. this court issued notice by the order dated october 3, 1994. on december 12, 1994, this court passed the following 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 of gujarat, maharashtra,orrisa, kerala, tamil nadu, west bengal, goa, pondicherry, daman/deu, andaman/nichobar and lakshdeep have filed replies to the writ petitions. this court 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 national environmental 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 to the coastal areas in other states and file its report within two months. the report was filed in this court within the specified time. this court on may 9, 1995 passed the following 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 serious environmental problem. besides direct dumping of waste materials in the seas discharge through marine outfalls, large volumes of untreated of semi-treated waste generated in various land-based sources/activities ultimately find way to the seas. the coastal waters directly receive the inland waters, by way of surface run-off and land-drainage, ladden with myriad of refuse materials - the rejects or wastes of the civilisation. apart from inputs from rivers and effluent-outfalls, the coastal areas are subject to intensive fishing, navigational activities, recreations, ports, industrial discharge and harbours which are causative factors of water quality degradation to varying degrees. contrary to the open sea, the changes in the quality of coastal waters, are much greater due to river discharges under tidal conditions. with noticeable increase in marine pollution and the consequential decline in marine resources, serious concern was expressed in the united nations' conference on human environments in stockholm (1972) attracting global attention towards the urgent need of identifying the critically polluted areas of the marine environments, specially in coastal waters, for urgent remedial actions. the conference unanimously resolved that the littoral states should take early action at their national level for assessment and control of marine pollution from all sources and carry out systematic monitoring to ascertain the efficacy of the pollution regulatory actions taken by them. in the background of the stockholm conference and in view of 1982 convention on the "law of the sea" defining jurisdiction of territorial waters, a model comprehensive action plan has been evolved under the united nations' environment programme (unep). keeping with the international commitments and in greater national interest, the government of india and the governments of the coastal states are under a legal obligation to control marine pollution and protect the coastal-environments. according to the facts placed on record by the central pollution control board the board the coastline of india's mainland is about 6000 km long. but or the total landmass of about 3.28 million sq. kms nearly 0.15 million sq. kms of coastal land-belt (considering 25 km landward distance) girdles three sides of the country's sea front which in turn underlays about 3.13 million sq. km sea-bed upto the territorial limit. the country being riverine, has 14 major, 44 medium and 55 minor rivers which discharge annually about 1566 thousand million cubic meters of water through land drainage into the seas transporting a wide range of pollutants generated by land-based activities. nine out of fourteen 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 marine coastal out falls discharging directly or indirectly industrial and municipal effluents into seas. uncontrolled disposal of land-based waste into the seas, through rivers and effluent outfalls, is a major cause of pollution of coastal waters. there are nine coastal states and one union territory (ut) in india namely, gujarat, maharashtra, goa, karnataka, kerala, tamil nadu, pondicherry (ut), andhra pradesh, orissa and west bengal, more than one-fourth of the total population of the country is settled in the coastal areas. the board in its report regarding "pollution potential of industries in coastal areas of india" dated november, 1995 gives the following date regarding aquaculture 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 b given to the beaches. the beaches and other areas of special interest are to be maintained aesthetically and at permissible levels of enteric bacteria. protection of ecologically sensitive areas and land-sea interface resource areas is equally important. the central board for the prevention and control of water pollution (central board) in its 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 pollution control series copocs/s/1986-87" sought protection of the ecologically 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 called prawns. in commercial jargon, marine prawns are referred to as shrimps and freshwater ones as prawns. prawns and shrimps are invertebrates and are decided crustaceans. sea is their home and they grow to adulthood and breed in the sea. the progeny start their life by drifting into estuaries and such other brackishwater areas for feeding. in about 4-6 months the larvae grow into adolescence and go back to their real home of birth, the sea. aquaculture has been practised for many centuries by small farmers and fisher folk in asia to improve their

living conditions. however, there is a vast difference between eh traditional methods and the new commercialised system. the traditional aquaculture, including shrimp, is usually small-scale, using low inputs and relies on natural tidal action for water-exchange. in some countries, such as india, bangladesh and thailand, there is a tradition of rice/shrimp rotating, with rice grown part of the year and shrimp and other fish species cultured the rest of the year. chemicals, antibiotics and processed feeds are not used in the traditional method. in this low-yield, natural method, the harvest is small but sustainable over long periods. it has no adverse affect on the environment and ecology. the modern method, on the other hand, is larger is scale and intensive or semi-intensive in nature. it is owned and operated by commercial and often foreign-owned companies which mainly export the shrimp. in intensive aquaculture, selected species are bred using a dense stocking rate. to maintain the very crowded shrimp population and attain higher production efficiency, artificial feed, chemical additives and antibiotics are used. the food and agriculture organisation (fau) - an organ of united nations organisation (unu) - published a report in april, 1995 on a regional study and workshop on the environmental assessment and management or aquaculture development. copy of the report has need placed on record by mr. santosh hedge, learned counsel for the state of karnataka. india was one of the 16 countries participated in the workshop. dr. k. alagarswami, director, central institute of brackishwater aquaculture, madras presented a paper titled "the current status of aquaculture in india, the present phase of development and future growth potential". (hereinafter called alagarswami report). it has been published as an annexure to the workshop-report published by the fao. para 5.1.2 of alagarswami report gives various types of technologies adopted by the aquaculture industry in india. it would be useful to reproduce the same hereunder:"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 environmental and social problems created by the coastal acquaculture. the relevant 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 adjoining gulf at cambay. protection of mangroves should receive attention. alagaraswami report further indicates that the demand for shrimp seed is growing with the expansion of shrimp culture 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 fry collectors because their value is insignificant. the report states "elimination of fry in the fry by-catch is not only detrimental to the predators thriving on them, but it also creates an ecological imbalance". agitations by the environmentally conscious people of the coastal-areas against polluting acquaculture technologies 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 environmentallyfriendly 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 pollutants generated by such farming have been noticed by alagaswamy in the 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 fields are being converted to shrimp farms, as in some parts of andhra pradesh (e.g. bhimavarami, some paddv lands along the fringe of chilka lake have been last to shrimp farming. the report suggests future management strategies quoted hereunder - for farms and government in resolving any conflicts 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 natural drainage of flood water, passage of access to sea by fishermen and public, self-pollution or ponds, pollution of source water, destruction or mangroves land subsidence and pressure on wild seen resources and consequences thereof as environmental issues in shrimp culture. para 6.2 of the report 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 report states the impact of aquaculture on the environment, in india, 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 an authentic document relating to the functioning of shrimp culture industry in india. it has rightly been suggested in the report that sustainable development should be the guiding principle for the shrimp aquaculture. the industry must develop under the unified motto of environment and development. environmentally-friendly technologies are to be adopted with a view to achieve optimal production. the report calls for a ban on the use of drugs, chemicals and antibiotics in the shrimp culture farms. the report clearly indicates that except the traditional and improved traditional, the other methods or strimp aquaculture are polluting and as such may have an adverse impact on the environment. mr. m.c. mehta, learned counsel for the peititoner, has taken us through the neeri reports and other voluminous material on the record. he has vehemently contended that the modern - other than traditional - techniques of shrimp farming are highly polluting and are detrimental to the coastal environment and marine ecology. according to him only the traditional and improved traditional systems of shrimp farming which are environmentally friendly should be permitted. mr. mehta has take us through the notification dated february19, 1991 issued by the government of india under section 3 of the environment (protection) act, 1986 (the act) (urz notification) and has vehemently contended that setting up of shrimp farms on the coastal stretches of seas. days, estuaries, creeks, rivers and backwaters upto 500 meters from the high tide line (htl) and the line between the low tide line (ltl) and the htl is totally prohibited under para2 of the said notification. the relevant 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 is neither "directly related to water iron" nor "directly needing fore-shore facility" and as such is a prohibited activity under para 2(1) of the crz notification. mr. kapil sibal on the other hand has argued that a shrimp farm is an industry which is directly related to water front and cannot exist without fore-shore facilities. relying upon oxford english dictionary mr. sibal contended that "water front" means land abetting on the sea, that part of a town which fronts on a body of water. according to him "foreshore" in terms of the said dictionary means the part of the shore that lies between the high tide and the low tide. according to webster comprehensive dictionary. international edition the expression`foreshore' means "that part of a shore uncovered at low tide". it is, thus, clear that the part of the shore which remains covered with water at the high tide and gets uncovered and become visible at the low tide is called "foreshore". it is not possible to set no a shrimp culture farm in the said area because it would completely sub-merge in water at the high tide. it is, therefore, obvious that foreshore facilities are neither directly nor indirectly needed in the setting up of a shrimp farm. so far as "water front" is concerned it is no doubt correct that shrimp farm may have some relation to the water front in the sense that the farm is dependent on brackish water which can be drawn from the sea. but on a close scrutiny, we are of the view that shrimp culture farming has no relation or connection with the `water front' though it has relation with brakish water which is available from various water-bodies including sea. what is required is the "brakish water" and not the `water front'. the material on record shows that the shrimp ponds constructed by the farms draw water from the sea by pipes, <??> etc. it is not the `water front' which is needed by the industry, what is required is the brakishwater which can be drawn from any source including sea and carried to any distance by pipes etc. the purpose of crz notification is to protect the ecological fragile coastal areas and to safe guard the aesthetic qualities and uses of the sea coast. the setting up of modern shrimp aquaculture farms right on the sea coast and construction of ponds an other infrastructure thereon is per se hazardous and is bound to degrade the marine ecology, coastal environment and the aesthetic uses of the sea coast. we have, therefore, no hesitation in holding that the shrimp culture industry is neither "directly related to water front" nor "directly needing foreshore facilities". the setting up of shrimp culture farms within the prohibited areas under the crz notification cannot be permitted. para 2(viii) of the crz notification quoted above,

prohibits the bunding or disturbing the natural course of sea water with similar obstructions. a band is an embankment or dyke. alagarswami report in para 4.3.2 (quoted above) has specifically mentionedthat huge cyclone protection dykes and peripheral dykes are constructed by the shrimp farmers. the report further states that due to physical obstruction caused by the dykes the natural drain is blocked and flood water accumulated in the hinterland villages. the report notices that the shrimp ponds are constructed right on the bank of the creeks without leaving any area to draining of flood waters. a shrimp farm on the coastal area; by itself operates as a dyke or a band as it leaves no area for draining of the flood waters. the construction of the shrimp farms, therefore, violate clause (viii) of para 2 of the crz notification, in view of the findings by the alagarswami report it may be useful to hold an inquiry/investigation to find out the extent of loss occurred, if any to the villages during the recent cyclone in the state of andhra pradesh because of the dykes constructed by the shrimp farmers. annexure-1 to the crz notification contains regulations regarding coastal area classification and development. the coastal stretches within 500 m of htl of the landward side are classified into four categories, namely, crz-i, crz-ii, crz-iii and crz-iv. para 6(2) of the crz notification lays down the norms for the development ht or construction activities in different categories of crz areas. in crz-iii zone agriculture, horticulture, gardens, pastures, parks, playfields, forestry, and salt manufacture from sea level may be permitted upto 200 m from the high vide line. the aquaculture or shrimp farming has not been includedas a permissible use and as such is prohibited even in this zone. a relevant point arises at this stage. salt manufacturing process like the shrimp culture industry depends on sea water. salt manufacturers can also raise the argument that since they are wholly dependent on sea-water theirs is an industry "directly related to water front" or "directly needing fore-shore facilities". the argument stands negatived by inclusion of the salt manufacturing industry in crz-iii zone under para b(2) or the crz notification otherwise it was not necessary in include the industry therein because it could be set-up any were in the coastal regulation zone in terms of para 2(1) of the crz notification. it is thus obvious that an industry dependent on sea water cannot by itself is an industry "directly related to water front" or "directly needing fore-shore facilities". the shrimp culture industry, therefore, cannot be permitted to be set up any where in the coastal regulation zone under the crz notification. we may examine the issue from another angle. sea coast and beaches are a gift of the nature to the mankind. the aesthetic qualities and recreational utility of the said

area has to be maintained. any activity which has the affect or degrading the environment cannot be permitted. apart from that the right of the fisherman and farmers living in the coastal areas to eke their living by way of fishing and farming cannot be denied to them. alagarswami report states that "the shrimp farms do not provide excess 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 operation. this is being objected by traditional fishermen". the alagarswami report further highlights drinking water problem, salinisation and destruction of mangrove by the shrimp culture industry. the relevant paragraphs have already been quoted above. the increase of stocking densities, heavy inputs of high energy feeds, use or drugs and chemicals result in the discharge or highly pulluted effluent into the sea, creeks etc. and on the sea coast by the shrimp farms. it is, therefore, not possible to agree with mr. sibal that commercial shrimp farming has no adverse affect on environment and coastal ecology. we may at this stage refer to the two investigation reports dated april 23, 1995 and july 10, 1995 by neeri regarding the ecological fragile coastal areas of india. the report dated april 23, 1995 states that a 13 member team of scientists, lead by dr. a.s. ball and dr. s.k. kaul inspected the shrimp farms situated on the ecological fragile coastal areas in the states of andhra pradesh and tamil nadu between april 10 and april 19, 1995. it is further stated that the coastal areas in the union territory of pondicherry were also inspected by the team. regarding the 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 acquaculture in 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 the environment and the ecologically fragile in the states of andhra pradesh, tamil nadu and union territory of pondicherry 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 ecologically fragile coastal areas in the states of andhra pradesh and tamil 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 the damage caused to ecology and economics by the acquaculture farming is higher than the earnings from the sale of coastal acquaculture produce. the finding is based on the assessment keeping in view fourteen parameters listed in tables 4.2 & 4.3 regarding the states of andhra pradesh and tamil nadu respectively. the parameters taken into consideration are <??> equivalent wages for the farmers to be earned, equivalent amount of agricultural produce <??> loss due to cutting to casuarina in terms of fuel, loss in terms of grazing grounds, loss involving <??> loss caused by cyclones due to cutting of <??> in a forests, loss due to desertification of land, loss in terms of potable water, total loss <??> destruction, loss in rising income, loss due to damage of fishing nets and man-days loss due to <??> approachability to sea-coast. these losses are computed in money are are then compared with the total earnings from the sale of coastal acquaculture produce. in the basis of the assessment of socio-economic status of acquaculture in a systematic manner the neeri has reached the conclusion that the damage caused to ecology and economics by the acquaculture farming is higher than the earnings from the sale of coastal aquaculture produce. paras 6.1, 6.2 and 6.3 of the report clearly show the environmental degradation caused by the shrimp culture farming by its adverse impact on surface water,

contamination of soil and ground water and destruction of mangrove vegetation. the said paragraphs are reproduced hereunder: "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 bluegreen 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 5 of 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 nonapproachability 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 ecosystem 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 if the wastewater treatment system is not functioning to its design efficiency. the second neeri report dated july 10, 1995 states that a 19 member team of scientists lead by dr. a.s. ball and dr. s.n. kaul inspected the shrimp farms situated on the ecologically fragile coastal areas in the states of west bengal, orrisa, kerala, karnataka, goa, maharashtra and gujarat during may 20 and june 10, 1995. the summary of salient comments in the report regarding acqua-farming in the 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 24paraganas m/s sundarban aquatics, south 24-paraganas all shrimp farms developed by bwfd at ramnagar, midnapore." the comments regarding the acqua-farming in the state of 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 as indicated 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 acquaculture 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 farms in 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 the state 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 as under:"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 in detail the impact of acquaculture farming on ecologically fragile 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 aquafarm is 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 semiintensive 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 semiintensive 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 of the 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 socioeconomic, 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 nonapproachability 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; semiintensive, 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 nonapproachability 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 cooperative 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 to commercial acqua-culture farming there is considerable degradation of the mangrove eco-systems, depretion of casurina plantations, pollution of potable waters, reduction in fish catch, and blockage of direct approach to the seashore. agriculture lands and salt farms are being converted into commercial acqua-culture farms. the ground water has go contaminated due to seepage of impounded water from the acqua-culture farms. highly polluted effluents are discharged by the shrimp-farms into the sea and on the seacoast. a report titled "expert committee report on impact of shrimp farms along the coast of tamil nadu and pondicherry" has been placed on the record, justice m. suresh, a retired judge of the bombay high court, mr. a. sreenivasan, joint director of fisheries (retd.), dr. a.g.k. menon, an ichthyologist, 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 "expert committee" (suresh committee). although the investigation by

the suresh committee was done at the instance of "complaint against shrimp industries" but keeping in view the status of the committee members and the factual data collected and relied upon by the committee it would be useful to examine the same. the suresh committee visited various villages in tamil nadu and pondicherry and gave its findings based on the evidence collected by the committee. some of the findings 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 13th/15th, 1995 and observed as under:-

july

"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 as under:"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 july 18, 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 district pondicherry 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 under various headings indicating the impact of shrimp culture farming 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 5536 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 rather depressing scenario of the shrim industry. while the production increases and export earnings of the industry are well publicised, the socio-economic losses and environmental degradation affecting the well-being of coastal population are hardly noticed. the traditional production systems are being replaced by more intensive ones. this have been ecouraged by increasing demand from high income countries. shrimp yield per hectare in many areas increased within a few years from an average 100 kg/ha per harvest to an average of 1000 kg/ha/crop for semi-intensive shrimp farms and to between 2000 and 10000 kg/ha/crop for intensive type of production. the social and environmental costs of the expanding shrimp industry are closely inter-related. pollution and other types of natural resource degradation induced by shrimp farming have been considerably, highlighted in the neeri reports and other material quoted and discussed by us. social and environmental changes resulting from expanding shrimp industry in coastal areas are largely due to the conversion into shrimp farms of the lands, waters and forests which were earlier dedicated to other uses. in fact, shrimp farms are developing at the expense of other agriculture, acquaculture, forest uses and fisheries that are better suited in many places for meeting local food and employment requirements. intensive and semiintensive types of shrimp production hardly seem to meet these requirements. mangrove forests constitute an important component of coastal eco-systems. they thrive in tidle estuaries, salt marshes and muddy coast lines. conversion of mangrove to shrimp farms significantly reduces the natural production of wild capture shrimp as well as other fisheries. more over, their production role for low-lying coastal regions is rapidly dimnishing by their replacement by shrimp ponds. the sunder bans, which constitute one of the biggest mangrove areas in the world, covered in the early 1990s about 12000 sq. kms. in india and bangladesh. in the west bengal part of sunder bans large mangrove areas have been replaced by the shrimp ponds. the increasing need for land by shrimp enterpreneurs has 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 longer afford to purchase land, while indebted farmers are tempted to sell their holdings. much of the coastal land recently converted into shrimp farms was previously used for food

crops and traditional fishing. the united nations research institute for social development in colloboration with the world wide fund for nature international has conducted a study and published a report dated june 19, 1995 called "some ecological and social 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 regarding polluted 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-quaide-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 that the expansion of modern shrimp ponds in the coastal areas has meant that local fishermen could only reach the beach by trespassing at great risk on shrimp farms or by taking a long detour. local people have not only lost access to their fishing grounds and to their sources of riverine seafoods and seaweeds, but they also have to relinquish social and recreational activities traditionally taking place on their beaches. the un report gives the following picture regarding natural 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 semiintensive 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 a maximum life of only 5 to 10 years. abandoned ponds can no longer be used for shrimp and there are few known alternative uses for them except some other types of acquaculture. apparently they can seldom be economically rehabilitated for other uses such as crop land. the extent of abandoned areas by the shrimp industry has been indicated by 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 and externalities" 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 into six types. we have already quoted the relevant paragraph 5.1.2 of the report. although different experts have given different nomenclature to different types of shrimp farm technologies, we are of the view that the types indicated by alagarswami in his report are based on the functioning of the shrimp culture industry in india and as such are acceptable. keeping in view the neeri report and other material quoted and discussed by us, we are of the view that the traditional and improved traditional types of shrimpfarm technologies - defined by alagarswami - are environmentally benign and pollution free. other types of technologies - extensive, modified extensive, semi intensive and intensive - create pollution and have degrading affect on the environment and coastal ecology. such type of shrimp farms cannot be permitted to operate. we may refer to constitutional and statutory provisions which mandate the state to protect and improve the environment. article 48-a of the constitution of india states that "the state shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country". article 51-a of the constitution imposes as one of the fundamental duties on every citizen, the duty to protect and improve thenatural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. the environment (protection) act, 1986 (the act) was enacted as a result of the decisions taken at the united nations conference on the human environment held at stockhorm in june, 1972 in which india participated. the indian delegation was led by the then prime minister of india. the statement of objects and reason 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 environment act are as under:2. definitions.-in this act, unless the context otherwise requires,(a) "environment" includes water, air and land and the interrelationship 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 the provisions of the said act punishable with imprisonment for a term which may extend to five years or with fine which may extend to one lakh rupees or with both. if the failure or contravention continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years. the effluents discharged by the commercial shrimp culture farms are covered by the definition of environmental pollutant, environmental pollution and hazardous substance. the neeri reports indicate that the effluents discharged by the farms at various places were excess of the prescribed standards. unfortunately, no action is beingtaken by the authorities under the act. hazardous waste (management and handling) rules, 1989 (the rules) have been framed under the act. rule 2(i) of the rules defines "hazardous wastes" to mean categories of wastes specified in the schedule appended to the rules. waste category no.12 under the schedule to the rules is as under:"schedule categories of hazardous waste -----------------------------------------------------------waste categories types of wastes regulatory quantities -----------------------------------------------------------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 every occupier generating hazardous wastes to obtain authorisation as provided under the said rule. rule 5(4) requires the state pollution control board not to issue and authorisation unless it is satisfied that the operator of a facility or an occupier, as the case may be, possesses appropriate facilities, technical capabilities and equipment to handle hazardous waste safely. mr. mehta has vehemently contended that the shrimp

culture farms are discharging highly polluting effluent which is "hazardous waste", under the rules, mr. mehta relying upon the neeri reports and other reports placed on record has contended that none of the farms have obtained authorisation from the state pollution control boards. the water (prevention & control of pollution) act. 1974 (the water act) has been enacted to provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water. the statement of objects and reasons of the water act, inter alia, 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 person shall, without the previous consent of the state board establish any industry, operation or process, of any treatment and disposal system which is likely in discharge sewage or trade effluent into a stream on well or sewer or on land. there is nothing on the record to show that the shrimp culture farm owners are even conscious of the statutory provisions which require them to obtain the necessary consent/authorisation from the concerned pollution control boards. there are other legislations like fisheries act 1987, wild life protection act, 1972 and forest conservation act, 1980 which contain useful provisions for environment protection and pollution control. unfortunately, the authorities responsible for the implementation of various statutory provisions are wholly re-miss in the performance of their duties under the said provisions. at this stage we may deal with a question which has incidentally come up for our consideration. under para 2 of the crz notification, the activities listed thereunder are declared as prohibited activities. various state governments have enacted coastal acquaculture legislations regulating the industries set up in the coastal areas. it was argued before us that certain provisions of the state legislations including that of the state of tamil nadu are not in consonance with the crz notification issued by the government of india under section 3(3) of the act, assuming that <??> so, we are of the view that the act being a central legislation has the overriding effect. the act the environment protection act, 1986) has been enacted under entry 13 of list 1 schedule vii of the constitution of india. 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 was enacted to implement the decisions taken at the united nations conference on the human environment held at stockholm in june, 1972. the parliament has enacted the act under entry 13 of list 1 schedule vii read with article 253 of the constitution of india the crz notification having been issued under the act shall have overriding effect and shall prevail over the law made by the legislatures of the states. this court in vellore citizens welfare forum vs. union of india & ors. jt 1966 (7) sc 375 has dealt with the

concept of "sustainable development" and has specifically accepted "the precautionary principle" and "the polluter pays" principle as part of the environmental laws of the land. 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 or shrimp pond is permitted to be installed in the ecology fragile coastal area it must pass through a strict environmental test. there has to be a high powered "authority" under the act to scrutinise each and every case from the environmental point of view. there must be an environmental impact assessment before permission is granted to instal commercial shrimp farms. the conceptual framework of the assessment must be broad-based primarily concerning environmental <??> linked with shrimp farming. the assessment must also include the social impact on different population strata in the area. the quality of the assessment must be analytically based on superior technology. it must take 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 contended before us by the learned counsel appearing for the shrimp acquaculture industry that the industry has achieved singular distinction by earning maximum foreign exchange in the country. almost 100 per cent of the produce is exported to america, europe and japan and as such the industry has a large potential to earn "dollars". that may be so, but the farm-raised production of shrimp is much lesser than wild-caught production. the un report shows the world production 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 1,756 1983 143 1,683 1,626 1984 174 1,733 1,907 1985 213 1,906 2,121 1986 309 1,909 1,218 1987 551 1,909 2,264 1988 604 1,914 2,518 1989 611 1,832 2,518 1990 633 1,968 2,443 1991 690 1,968 2,601 1992 721 2,118 2,912 1993 610 2,100 2,710" -----------------------------------------------------------it is obvious from the figures quoted above that termraised production of shrimp is of very small quantity as compared to wild-caught even if some of the shrimp culture farms which are polluting the environment, are closed, the production of shrimp by environmentally friendly techniques would not be affectedand there may not be any loss to the economy specially in view of the finding given by neeri that the damage caused to ecology and economics by acquaculture farming is higher than the earnings from the sale of coastal acquaculture produce. that may be the reason for the european and american countries for not permitting their sea-coasts to be exploited for shrimp-culture farming. the un report shows that 80% of the farm - cultured - shrimp comes from the developing countries of asia. we, therefore, order and directed as under: 1. the central government shall constitute an authority under section 3(3) of the environment (protection) act, 1986 and shall confer on the said authority all the powers necessary to protect the ecologically fragile coastal areas, sea shore, water front and other coastal areas and specially

the

the

to deal with the situation created by the shrimp culture industry in the coastal states/union territories. the authority shall be headed by <??> judge of a high court. other members preferably with expertise in the field of acquaculture, pollution control and environment protection shall be appointed bythe central government. the central government shall confer on the said authority the powers to issue directions under section 5 of the act and for taking measures 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 constitute the authority before january 15, 1997. 2. the authority so constituted by the central government shall implement "the precautionary principle" and "the polluter pays" principles. 3. the shrimp culture industry/the shrimp ponds are covered by the prohibition contained in para 2(1) of the crz notification. no shrimp culture pond can be constructed or set up within the coastal regulation zone as defined in the crz notification. this shall be applicable to all seas, bays, estuaries, creeks, rivers and backwaters. this direction shall not apply to traditional and improved traditional types of technologies far defined in alagarswami report which are practised in the coastal low lying areas. 4. all acquaculture industries/shrimp culture industries/shrimp culture ponds operating/set up in the coastal regulation zone as defined under the crz notification shall be demolished and removed from the said area before march 31, 1997. we direct the superintendent of police/deputy commissioner of police and the district magistrate/collector of the area to enforce this direction and close/demolish all acquaculture industries/shrimp culture industries, shrimp culture ponds on or before march 31, <??> 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 improved traditional systems of acquaculture may adopt improved technology for increased production productivity and return with prior approval of the "authority" constituted by this order. 6. the agricultural lands, salt pan lands, mangroves, wet lands, forest lands, land for village common purpose and the land meant for public purposes shall not be used/converted for construction of shrimp culture ponds. 7. no acquaculture industry/shrimp culture industry/shrimp culture ponds shall be constructed/set up within 1000 meter of chilka lake and pulicat lake (including bird sanctuaries namely yadurapattu and nelapattu) 8. acquaculture industry/shrimp culture industry/shrimp culture ponds already operating and functioning in the said area of 1000 meter shall be closed and demolished before

march 31, 1997. we direct the superintendent of police/deputy commissioner of police and the district magistrate/collector of the area to enforce this direction and close/demolish and acquaculture industries/shrimp culture industries, shrimp culture ponds on or before march 31, 1997. a compliance report in this respect shall be filled in this court by these authorities before april 15, 1997. 9. acquaculture industry/shrimp culture industry/shrimp culture ponds other than traditional and improved traditional may be set up/constructed outside the coastal regulation zone as defined by the crz notification and outside 1000 meter of chilka and pulicat lakes with the prior approval of the "authority" as constituted by this court. such industries which are already operating in the said areas shall <??>authorisation from the "authority" before april 30, 1997 failing which the industry concerned shall stop functioning with effect from eh said date. we further direct that any acquaculture activity including intensive and semi-intensive which has the effect of causing salinity of soil, of the drinking water or wells and/or by the use of chemical feeds increases shrimp or prawn production with consequent increase in sedimentation which, on putrefaction is a potential health hazard, apart from causing silication turbidity of water courses and estuaries with detrimental implication on local fauna and flora shall not be allowed by the aforesaid authority. 10. acquaculture industry/shrimp culture industry/shrimp culture ponds which have been functioning/operating within the coastal regulation zone as defined by the crz notification and within 1000 meter from chilka and puliket lakes shall be liable to compensate the affected persons on the basis of the "polluter pays" principle. 11. the authority shall, with the help of expert opinion and after giving opportunity to the concerned polluters assess the loss to the ecology/<??> the affected areas and shall a individuals/families who have suffered because of the pollution and shall assess the compensation to be pain to the said individuals/families. the authority shall further determine the compensation to be recovered from the polluters as cost of reversing the damaged environment. the authority shall lay down just and fair procedure for completing the exercise. 12. the authority shall compute the compensation under two heads hardly, for reversing the ecology and for payment to individuals. a statement showing amount to be recovered, the names of the <??> whom the amount is to be recovered, the <??> recovered from each polluter, the persons to whom the compensation is to be paid and the amount payable to each of them shall be forwarded to the collector/district magistrate of the area concerned. the collector/district magistrate

shall recover the amount from the polluters, if necessary, as arrears of land revenue. he shall disburse the compensation awarded by the authority to the affected persons/families. 13. we further direct that any violation or non-compliance of the directions of this court shall attract the provisions of the contempt of courts act in addition. 14. the compensation amount recovered from the polluters shall be deposited under a separate head called "environment protection fund" and shall be utilised for compensating the affected persons as identified by the authority and also for restoring the damaged environment. 15. the authority, in consultation with expert bodies like neeri, central pollution control board, respective state pollution control boards shall frame scheme/schemes for reversing the damage cause to the ecology and environment by pollutions of the coastal states/union territories. the scheme/schemes so framed shall be executed by the respective state governments/union territory governments under the supervision of the central government. the expenditure shall be met from the environment protection <??> from other sources provided by the respective state governments/union territory governments and the central government. 16. the workmen employed in the shrimp culture industries which are to be closed in terms of this order, shall be deemed to have been retrenched with effect from april 30, 1997 provided they have been in continuous service (as defined in section 258 of the industrial disputes act, 1947) for not less than one year in the industry concerned before the said date. they shall be paid compensation in terms of section <??> of the industrial disputes act, 1947. these workmen shall also be paid, in addition, six year's wages as additional compensation. the compensation shall be paid to the workmen before may 31, 1997. the gratuity amount payable to the women shall be paid in addition. the writ petition is allowed with costs. we quantify the 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 equal shares 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 case throughout. we place on record our appreciation for assistance rendered by mr. mehta.

the

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 rangnath venkatachalliah, m.n. (j) ojha, n.d. (j) citation: 1990 air 273 1989 scale (1)932 1989 scc (2) 540

act: bhopal gas leak disaster (registration and processing of claims) act, 1985: court giving reasons for the overall settlement order dated february 14, 1989--compelling duty

both judicial and humane to secure immediate relief to victims.

the

headnote: the bhopal gas leak tragedy that occurred at midnight of 2nd december, 1984, by the escape of deadly chemical fumes from the appellant's factory was a great industrial disaster and it took an immediate toil of 2600 human lives and left tens of thousands of innocent citizens of bhopal physically affected in various ways. as per the figures furnished by the union of india in its amended plaint a total number of 2,660 persons suffered agonising and excruciating deaths between 30,000 to 40,000 persons sustained serious injuries as a result of the said disaster. legal proceedings for the recovery of compensation for the victims were initiated against the multi-national company first in the u.s. courts and later in distt. court at bhopal in suit no. 113 of 1986. the present appeals concern with the order dated 4th april, 1988 passed by the madhya pradesh high court whereby it modified the interlocutory order dated 17.12.1987 made by the distt. judge and granted interim compensation of rs.250 crores. both the union of india and the union carbide corporation have appealed to this court against that order. the court by its order dated the 14th february, 1989 made in these appeals directed that there shall be an overall settlement of the claims in the suit for 470 million u.s. dollars and termination of all civil and criminal proceedings. on may 4, 1989 the court pronounced its reasons for its aforesaid order dated 14.2.89thus: 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 article 137 of the constitution. [132c-d] 129 the basic consideration motivating the conclusion of the settlement was the compelling need for urgent relief. considerations of excellence and niceties of legal principles were greatly over-shadowed by the pressing problems of very survival for a large number of victims. [133a, c] the instant case is one where damages are sought on behalf of the victims of a mass disaster, and having regard to the complexities and the legal question involved, any person with an unbiased vision would not miss the time consuming prospect for the course of the litigation in its sojourn through the various courts, both in india and later in united states. this court considered it a compelling

duty. both judicial and humane, to secure immediate relief to the victims. in doing so, the court did not enter upon any forbidden ground. what this court did was in continuation of what had already been initiated. [133e-f, h; 134a] the range of choice for the court in regard to the figures was, therefore, between the maximum of 426 million u.s. dollars offered by shri nariman and the minimum of 500 million u.s. dollars suggested by the attorney general. [134f-g] having regard to all the circumstances including the prospect of delays inherent in the judicial process in india and thereafter in the matter of domestication of the decree in the united states for the purpose of execution, the court directed that 470 million u.s. dollars which upon immediate payment and with interest over a reasonable period, pending actual distribution amongst the claimants, would aggregate very nearly to 500 million u.s. dollars or its rupee equivalent of approximately rs.750 crores which the attorney general had suggested. be made the basis of the settlement. [134g-h; 135a-b] the settlement proposals were considered on the premises that the government had the exclusive statutory authority to represent andact on behalf of the victims and neither counsel had any reservation as to this. the order was made on the premises that the bhopal gas leak disaster (registration and processing of claims) act 1985 was a valid law. [135b-c] there might be different opinions on the interpretation of laws or on questions of policy or even on what may be considered wise or unwise; but when one speaks of justice and truth, these words mean the same thing to all men whose judgment is uncommitted. [140b-c] the compulsions of the need for immediate relief to tens of 130 thousands of suffering victims could not wait till these questions, vital though they be, are resolved in due course of judicial proceedings. [142d-e] a settlement has been recorded upon material and in circumstances which persuaded the court that it was a just settlement. this is not to say that this court will shut out any important material and any compelling circumstances which might impose a duty on it to exercise the powers of review. like all other human institutions, this court is human and fallible. what appears to the court to be just and reasonable in that particular context and setting, need not necessarily appear to others in the same day. which view is right, in the ultimate analysis, is to be judged by what it does to relieve the undeserved suffering of thousands of innocent citizens of this country. [142f-g] decisions of courts cannot be reacted or altered or determined by agitational pressures. if a decision is wrong,

also

the process of correction must be in a manner recognised by law. all of those who invoke the corrective processes in accordance with law shall be heard and the court will do what the law and the course of justice requires. the matter concerns the interests of a large number of victims of a mass disaster. the court directed the settlement with the earnest hope that it would do hem good and bring them immediate relief, for, tomorrow might be too ate for many of them. but the case equally concerns the credibility of, and the 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; theories of compensation, r.e. goodin: oxford journal of legal studies, 1989 p.57 and wallace mendelson.. supreme court statecraft--the rule of law and men, referred to.

judgment: civil appellate jurisdiction: civil appeal nos. 3187 and 3188 of 1988. from the judgment and order dated 4.4.1988 of the madhya pradesh high court in cr no. 26 of 1988. anil b. dewan, j.b. dadachanji, mrs. a.k. verma for the appellant. k. parasaran, a. mariarputham, miss a. subhashini and c.l. sahu for the respondents. 131 the following order of the court was delivered: order the bhopal gas leak tragedy that occurred at midnight on 2nd december, 1984, by the escape of deadly chemical fumes from the appellant's pesticide-factory was a horrendous industrial mass disaster, unparalleled in its magnitude and devastation and remains a ghastly monument to the de-humanising influence of inherently dangerous technologies. the tragedy took an immediate toll of 2,660 innocent human lives and left tens of thousands of innocent citizens of bhopal physically impaired or affected in various degrees. what added grim poignance to the tragedy was that the industrial-enterprise was using methyl iso-cyanate, a lethal toxic poison, whose potentiality for destruction of life and biotic-communities was, apparently, matched only by the lack of a pre-package of relief procedures for management of any accident based on adequate scientific knowledge as to the ameliorative medical procedures for immediate neutralisation of its effects. it is unnecessary for the present purpose to refer, in any detail, to the somewhat meandering course of the legal proceedings for the recovery of compensation initiated

against the multi-national company initially in the courts in the united states of america and later in the district court at bhopal in suit no. 113 of 1986. it would suffice to refer to the order dated 4 april, 1988 of the high court of madhya pradesh which, in modification of the interlocutoryorder dated 17 december, 1987 made by the learned district judge, granted an interim compensation of rs.250 crores. both the union of india and the union carbide corporation appealed against that order. this court by its order dated 14 february, 1989 made in those appeals directed that there be an overall settlement of the claims in the suit, for 470 million us dollars and termination of all civil and criminal proceedings. the opening words of the order said: "having given our careful consideration 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-eminently 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 effectively 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 article 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 settlement? (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 companies 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 to the part of the settlement which terminated the criminal proceedings. the questions raised on the point in the review-petitions, prima facie, merit consideration and we should, therefore, abstain from saying anything which might tend to pre-judge this issue one way or the other. 133 the basic consideration motivating the conclusion of the settlement was the compelling need for urgent relief. the suffering of the victims has been intense and unrelieved. thousands of persons who pursued their own occupations for an humble and honest living have been rendered destitute by this ghastly disaster. even after four years of litigation, basic questions of the fundamentals of the law as to liability of the union carbide corporation and the quantum of damages are yet being debated. these, of course, are important issues which need to be decided. but, when thousands of innocent citizens were in near destitute conditions, without adequate subsistential needs of food and medicine and with every coming morrow haunted by the spectre of death and continued agony, it would be heartless abstention, if the possibilities of immediate sources of relief were not explored. considerations of excellence and niceties of legal principles were greatly over-shadowed by the pressing problems of very survival for a large number of victims. the law's delays are, indeed, proverbial. it has been the unfortunate baneof the judicial process that even ordinary cases, where evidence consists of a few documents and the oral testimony of a few witnesses, require some years to realise the fruits of litigation. this is so even in cases of great and unquestionable urgency such as fatal accident actions brought by the dependents. these are hard realities. the present case is one where damages are sought on 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 time consuming prospect for the course of the litigation in its sojourn through the various courts, both in india and later in united states. it is indeed a matter for national introspection that public response to this great tragedy which affected a large number of poor and helpless persons limited itself to the expression of understandable anger against the industrial enterprise but did not channel itself in any effort to put together a public supported relief fund so that the victims were not left in distress, till the final decision in the litigation. it is well known that during the recent drought in gujarat, the devoted efforts of public spirited persons mitigated, in great measure, the loss of cattle-wealth in the near famine conditions that prevailed. this court, considered it a compelling duty, both judicial and humane, to secure immediate relief to the victims. in doing so, the court did not enter upon any forbidden ground. indeed, efforts had 134 earlier been made in this direction by judge keenan in the united states and by the learned district judge at bhopal. what this court did was in continuation of what had already been initiated. even at the opening of the arguments in the appeals, the court had suggested to learned counsel on both sides to reach a just and fair settlement. again, when counsel met for re-scheduling of the hearings the suggestion was reiterated. the response of learned counsel on both sides was positive in attempting a settlement, butthey expressed a certain degree of uneasiness and scepticism at the prospects of success in view of their past experience of such negotiations when, as they stated, there had been uninformed and even irresponsible criticism of the attempts at settlement. the learned attorney general submitted that even the most bona fide, sincere and devoted efforts at settlement were likely to come in for motivated criticism. the court asked learned counsel to make available the particulars of offers and counter offers made on previous occasions for a mutual settlement. learned counsel for both parties furnished particulars of the earlier offers made for an overall settlement and what had been considered as a reasonable basis in that behalf. the progress made by previous negotiations was graphically indicated and these documents form part of the record. shri nariman stated that his client would stand by its earlier offer of three hundred and fifty million us dollars and also submitted that his client had also offered to add appropriate interest, at the rates prevailing in the u.s.a., to the sum of 350 million us dollars 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 tothis offer of 426 million us dollars the learned attorney-general submitted that he could not accept this offer. he submitted that any sum less than 500 million us dollars would not be reasonable. learned counsel for both parties stated that they would leave it to the court to decide what should be the figure of compensation. the range of choice for the court in regard to the figure was, therefore, between the maximum of 426 million us dollars offered by shri nariman and the minimum of 500 million us dollars suggested by the learned attorney general. in these circumstances, the court examined the prima facie material as to the basis of quantification of a sum which, having regard to all the circumstances including the prospect of delays inherent in the judicial-process in india and thereafter in the matter of domestication of the decree in the united states for the purpose of execution and directed that 470 million us dollars, which upon immediate payment 135 and with interest over a reasonable period, pending actual distribution amongst the claimants, would aggregate very nearly to 500 million us dollars or its rupee equivalent of approximately rs.750 crores which the learned attorney general had suggested, be made the basis of the settlement. both the parties accepted this direction. the settlement proposals were considered on the premise that government had the exclusive statutory authority to represent andact on behalf of the victims and neither counsel had any reservation as to this. the order was also made on the premise that the bhopal gas leak disaster (registration and processing of claims) act, 1985 was a valid law. in the event the act is declared void in the pending proceedings challenging its validity, the order dated 14, february, 1989 would require to be examined in the light of that decision. we should make it clear that if any material is placed before this court from which a reasonable inference is possible that the union carbide corporation had, at any time earlier, offered to pay any sum higher than an out-right down payment of us 470 million dollars, this court would straightaway initiate suo motu action requiring the concerned parties to show cause why the order dated 14 february, 1989 should not be set aside and the parties relegated to their respective original positions. the next question is as to the basis on which this court considered this sum to be a reasonable one. this is not independent of its quantification, the idea of reasonableness for the present purpose is necessarily a broad and general estimate in the context of a settlement of the dispute and not on the basis of an accurate assessment by

adjudication. the question is how good or reasonable it is as a settlement, which would avoid delays, uncertainties and assure immediate payment. the estimate, in the very nature of things, cannot share the accuracy of an adjudication. here again one of the important considerations was the range disclosed by the offers and counter offers which was between 426 million us dollars and 500 million us dollars. the court also examined certain materials available on record including the figures mentioned in the pleadings, the estimate made by the high court and also certain figures referred to in the course of the arguments. there are a large number of claims under the act. in the very nature of the situation, doubts that a sizeable number of them are either without any just basis or were otherwise exaggerated could not 136 be ruled out. it was, therefore, thought not unreasonable to proceed on some prima facie undisputed figures of cases of death and of substantially compensatable personal injuries. the particulars of the number of persons treated at the hospitals was an important indicator in that behalf. this court had no reason to doubt the bona fides of the figures furnished by the plaintiff itself in the pleadings as to the number of persons suffering serious injuries. from the order of the high court and the admitted position on the plaintiff's own side, a reasonable, prima facie, estimate of the number of fatal cases and serious personal injury 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 disaster ..... " (emphasis supplied) there is no scope for any doubt that the cases referred to as those of 'serious injuries' include both types of cases of permanent total and partial disabilities of various degrees as also cases of temporary total or partial disabilities of different degrees. the high court relied upon the averments 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 interimcompensation the high court did not adopt the standards of compensation usually awarded in fatal-accidents-actions or personalinjury-actions arising under the motor vehicles act. it is well-known that in fatal-accidentactions where children are concerned, the compensation awardable is in conventional sums ranging from rs.15,000 to rs.30,000 in each case. in the present case a large number of deaths was of children of very young age. even in the case of adults, according to the general run of damages in comparable cases, the damages assessed on the 137 usual multiplier-method in the case of income groups comparable to those of the deceased-persons, would be anywhere between rs.80,000 and rs. 1,00,000. but the high court discarded, and rightly, these ordinary standards which, if applied, would havelimited the aggregate of compensation payable in fatal cases to a sum less than rs.20 crores in all. the high court thought it should adopt the broader principle in m.c. mehta v. union of india, air 1987 sc 1086. stressing the need to apply such a higher 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 compensation, 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 unreasonable 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 disablement 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 the number of fatal cases and cases of serious personal injuries do not appear to have been disputed by anybody before the

high court. these data and estimates of the high court had a particular significance in the settlement. then again, it was not disputed before us that the total number of fatal cases was about 3000 and of grievous and serious personal injuries, as verifiable from the records of the hospitals of cases treated 138 at bhopal, was in the neighbourhood of 30,000. it would not be unreasonable to expect that persons suffering serious and substantially compensable injuries would have gone to hospitals for treatment. it would also appear that within about 8 months of the occurrence, a survey had been conducted purposes of identification of cases of death and grievous and serious injuries for purposes of distribution of certain ex gratia payments sanctioned by government. these figures were, it would appear, less than ten thousand. in these circumstances, as a rough and ready estimate, this court took into consideration the prima facie findings of the high court and estimated the number of fatal cases at 3000 where compensation could range from rs.l lakh to rs.3 lakhs. this would account for rs.70 crores, nearly 3 times higher than what would, otherwise, be awarded in comparable casses in motor vehicles accident claims. death has an inexorable finality about it. human lives that have been lost were precious and in that sense priceless and invaluable. but the law can compensate the estate of a person whose life is lost by the wrongful act of another only in the way of the law is equipped to compensate i.e. by monetary compensations calculated on certain well-recognised principles. "loss to the estate" which is the entitlement of the estate and the 'loss of dependancy' estimated on the basis of capitalised present-value awardable to the heirs and dependants, are the main components in the computation of compensation in fatal accident actions. but, the high court in estimating the value of compensation had adopted a higher basis. so far as personal injury cases are concerned, about 30,000 was estimated as cases of permanent total or partial disability. compensation ranging from rs.2 lakhs to rs.50,000 per individual according as the disability is total or partial and degrees of the latter was envisaged. this alone would account for rs.250crores. in another 20,000 cases of temporary total or partial disability compensation ranging from rs. 1 lakh down to rs.25,000 depending on the nature and extent of the injuries and extent and degree of the temporary incapacitation accounting for a further allocation of rs. 100 crores, was envisaged. again, there might be possibility of injuries of utmost severity in which case even rs.4 lakhs per individual might have to be considered. rs.80 crores, additionally for about 2000 of such cases were envisaged. a sum of rs.500 crores approxi-

for

mately was thought of as allocable to the fatal cases and 42,000 cases of such serious personal injuries leaving behind in their trail total or partial incapacitation either of permanent or temporary character. 139 it was considered that some outlays would have to be made for specialised institutional medical treatment for cases requiring such expert medical attention and for rehabilitation and after care. rs.25 crores for the creation of such facilities was envisaged. that would leave another rs.225 crores. it is true that in assessing the interim compensation the high court had taken into account only the cases of injuries resulting in permanent or temporary disabilities--total--or partial--and had not adverted to the large number of other claims, said to run into lakhs, filed by other claimants. such cases of claims do not, apparently, pertain to serious cases of permanent or temporary disabilities but are cases of a less serious nature, comprising claims for minor injuries, loss of personal belongings, loss of live-stock etc. for which there was a general allocation of rs.225 crores. if in respect of these claims allocations are made at rs.20,000, rs. 15,000 and rs. 10,000 for about 50,000 person or claims in each category--accounting for about one and half lakhs more claims--the sums required would be met by rs.225 crores. looked at from another angle, if the corpus of rs.750 crores along with the current market rates of interest on corporate borrowings, of say 14% or 14 1/2 % is spent over a period of eight years it would make available rs. 150 crores each year; or even if interest alone is taken, about rs. 105 to 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 run of damages in comparable accident claim cases and in cases under workmens compensation laws. the broad allocations made are higher than those awarded or awardable in such claims. these apportionments are merely broad considerations generally guiding the idea of reasonableness of the overall basis of settlement. this exercise is not a predetermination of the quantum of compensation amongst the claimants either individually or category-wise. no individual claimant shall be entitled to claim a particular quantum of compensation even if his case is found to fall within any of the broad categories indicated above. the determination of the actual quantum of compensation payable to the claimants has to be done by the authorities under the act, on the basis of the facts of each case and without reference to the hypothetical quantifications made only for purposes of an overall view of the adequacy of the amount. 140

these are the broad and general assumptions underlying the concept of 'justness' of the determination of the quantum. 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 the basic assumptions underlying the settlement become wholly unrelated to the realities, the element of 'justness' of the determination and of the 'truth' of its factual foundation would seriously be impaired. the 'justness' of the settlement is based on these assumptions of truth. indeed, there might be different opinions on the interpretation of laws or on questions of policy or even on what may be considered wise or unwise; but when one speaks of justice and truth, these words mean the same thing to all men whose judgment is uncommitted. 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 many vital juristic principles of great contemporary relevance to the third world generally, and to india in particular, touching problems emerging from the pursuit of such dangerous technologies for economic gains by multi-nationals arose in this case. it is said that this is an instance of lost opportunity to this apex court to give the law the new direction on vital issues emerging from the increasing dimensions of the economic exploitation of developing countries by economic forces of the rich ones. this case also, it is said, concerns the legal limits to be envisaged, in the vital interests of the protection of the constitutional rights of the citizenry, and of the environment, on the permissibility of such ultra-hazardous technologies and to prescribe absolute and deterrent standards of liability if harm is caused by such enterprises. the prospect of exploitation of cheap labour and of captive-markets, it is said, induces multi-nationals to enter into the developing countries for such economic-exploitation and that this was eminently an appropriate case for a careful assessment of the legal and constitutional safeguards stemming from these vital issues of great contemporary relevance. these issues and certain cognate areas of even wider significance 141 and the limits of the adjudicative disposition of some of

their aspects are indeed questions of seminal importance. the culture of modern industrial technologies, which is sustained on processes of such pernicious potentialities, in the ultimate analysis, has thrown open vital and fundamental issues of technology-options. associated problems of the adequacy of legal protection against such exploitative and hazardous industrial adventurism, and whether the citizens of the country are assured the protection of a legal system which could be said to be adequate in a comprehensive sense in such contexts arise. these, indeed, are issues of vital importance and this tragedy, and the conditions that enabled it happen, are of particular concern. the chemical pesticide industry is a concomitant, and indeed, an integral part, of the technology of chemical farming. some experts think that it is time to return from the high-risk, resource-intensive, high-input, anti-ecological, monopolistic 'hard' technology which feeds, and is fed on, its self-assertive attribute, to a more human and humane, flexible, eco-conformable, "soft" technology with its systemic-wisdom and opportunities for human creativity and initiative. "wisdom demands" says schumacher" a new orientation of science and technology towards the organic, the gentle, the non-violent, the elegant and beautiful". the other view stressing the spectacular success of agricultural production in the new era of chemical farming, with highyielding strains, points to the break-through achieved by the green revolution with its effective response to, and successful management of, the great challenges of feeding the millions. this technology in agriculture has given a big impetus to enterprises of chemical fertilizers and pesticides. this, say its critics, has brought in its trail its own serious problems. the technology-options before scientists and planners have been difficult. indeed, there is also need to evolve a national policy to protect national interests from such ultra-hazardous pursuits of economic gains. jurists, technologists and other experts in economics, environmentology, futurology, sociology and public health etc. should identify areas of common concern and help in evolving proper criteria which may receive judicial recognition and legal sanction. one aspect of this matter was dealt with by this court in m.c. mehta v. union of india, (supra) which marked a significant stage in the development of the law. but, at the hearing there was more than a mere hint in the submissions of the union carbide that in this case the law was altered with only the union carbide corporation in mind, and 142 was altered to its disadvantage even before the case had reached this court. the criticism of the mehta principle, perhaps, ignores the emerging postulates of tortious liability whose principal focus is the social-limits on economic

adventurism. there are certain things that a civilised society simply cannot permit to be done to its members, even if they are compensated for their resulting losses. we may note 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 compensation'--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 need for immediate relief to tens of thousands of suffering victims could not, in our opinion, wait till these questions, vital though they be, are resolved in the due course of judicial proceedings. the tremendous suffering of thousands of persons compelled us to move into the direction of immediate relief which, we thought, should not be subordinated to the uncertain promises of the law, and when the assessment of fairness of the amount was based on certain factors and assumptions not disputed even by the plaintiff. a few words in conclusion. a settlement has been recorded upon material and in circumstances which persuaded the court that it was a just settlement. this is not to say that this court will shut out any important material and compelling circumstances which might impose the duty on it to exercise the powers of review. like all other human institutions, this court is human and fallible. what appears to the court to be just and reasonable in that particular context and setting, need not necessarily appear to others in the same way. which view is right,in the ultimate analysis, is to be judged by what it does to relieve the undeserved suffering of thousands of innocent citizens of this country. as a learned author said: wallace mendelson: supreme court statecraft--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 philosopher 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 reached or altered or determined by agitational pressures. if a decision is wrong, the process of correction must be in a manner recognised by law. here, many persons action groups claim to speak for the victims, quite a few in different voices. the factual allegations on which they rest their approach are conflicting in some areas and it becomes difficult to distinguish truth from false-hood and halftruth, and to distinguish as to who speaks for whom. however, all of those who invoke the corrective-processes in accordance with law shall be heard and the court will do what the law and the course of justice requires. the matter concerns the interests of a large number of victims of a mass disaster. the court directed the settlement with the earnest hope that it would do them good and bring them immediate relief, for, tomorrow might be too late formany of 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 the main contestants in the appeal, the benefit of some contrary or supplemental information or material, having a crucial bearing on the fundamental assumptions basic to the settlement, have been denied to the court and that, as a result, serious miscarriage of justice, violating the constitutional and legal rights of the persons affected, has been occasioned, it will be the endeavour of this court to undo any such injustice. but that, we reiterate, must be by procedures recognised by law. those who trust this court will not have cause for despair. 144

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