Indian Council for Enviro-Legal action vs Union of India

INTRODUCTION:

Bichhri1 is a tiny hamlet in the Rajasthan district of Udaipur, India. The biggest industrial
settlement in this village's north is a public sector firm. It did not appear to hurt Bichhri, but it
did cause delays in the production of other things. Hindustan Agro Chemicals Limited began
producing chemicals like oleum (a condensed form of sulphuric acid) and split
superphosphate in 1987. The genuine calamity occurred when Silver Chemicals (respondent
5) began producing 'H' acid in a plant using the same ingredient. The acid 'H' was mostly
produced for export. Manufacturing operations generate massive amounts of hazardous
waste, most notably gypsum sludges. If these toxic ewes are not properly managed, they
might constitute a severe threat to the environment. If these ewes are not properly maintained
for, they will devastate the land, water, and other natural resources. Jyoti Compounds
(Respondent 8) is another component used to make the acid 'H' as well as a variety of other
dangerous compounds. Respondents 6 and 7 were asked to supply fertiliser and a few other
items. All 4-8 unit/factory respondents are members of the same person group and live in the
same geographic location. These are known as 'chemical industries. According to the study,
about 2500 tonnes of H-acids were created, with 375 tonnes produced. The silt was then
dumped into the village's open field. Throughout history, toxic substances have been drained
deep into the earth, contaminating water and groundwater supplies. The water in the area's
wells and rivers became dark and unclean. It will not be used for drinking, irrigation,
livestock, or any other purpose. This contaminates the soil, rendering it unusable for
agriculture and reducing or eliminating subsistence income for the inhabitants. Furthermore,
this poison has been linked to sickness, beheadings, and disasters in the town and surrounding
area. . The villagers' sudden deaths were heard in Parliament, and the responsible minister
vowed strict and prompt action, despite the fact that very little could be done on the site. In
January 1989, the District Magistrate imposed Section 144 of the Code of Criminal
Procedure2 on the district, resulting in the closure of Silver Chemical products.

1 ‘Bichhri Case on Strict Liability and Polluter Pay Principle’ (Google Books) accessed 13 September 2021.

2 Code of Criminal Procedure, s 144.

FACTS:

The Indian Council for Environmental Legal Action petitioned the Court in August 1989,
requesting that decisions be made as soon as possible. According to affidavit I, the Rajasthan
Pollution Control Board granted Hindustan Agro Chemicals Ltd. a No Objection Certificate
to produce sulfuric acid and alumina sulphate, but the unit changed its products and began
producing chemicals such as oleum and single super phosphates without the board's approval.
Permission was denied, and the unit was suspended, in accordance with the Air (Pollution
Prevention and Control) Act (1981), and (ii) Silver Chemical alleged that acid H was
produced without the Board's permission. H-acid processing waste was potentially toxic and
contained exceptionally big solutes as well as other pollutants.

The whole report was also submitted for clearance to the Apex Court so that the board and
authorities may assess all problems. In addition, on January 20, 1990, the state government
(Rajasthan) filed a counter-affidavit. In paragraph 3, the State authority (Government) was
informed of the contamination of groundwater caused by the fluid effluent of the firms
mentioned in the written appeal as respondents 4 to 8. As a result, the state legislature formed
the Pollution Control Board to monitor future pollution distribution.

As Toto analyses the situation within and outside the hamlet of Bichhri, the Hon'ble Court
further directed the National Institute of Environmental Research Engineering (NEERI) to
propose both short-term and long-term ways to minimise the hazard that has already arisen.
The Apex Court concluded that the sludge in the ground should be removed as soon as
possible to prevent radioactive substances from permeating the earth during the rainy season,
based on the NEERI study and other data. On April 4, 1990, the Court additionally directed
that the Indian Ministry of Environment and Forestry quickly assess this region to determine
the existence and level of iron and gipsy sludge, provide processes for treating and disposing
of the wastes, and recommend a transit and safe storage kit.

• On February 13, 1996, the Apex Court issued the following final order: "They believe that,
where an operation engaged in a hazardous or inherent industry poses a possible danger to the
health and safety of people working in the factory and living in the surrounding areas, it is the
Corporation's absolute and non-delegable obligation to ensure that it does not harm others
because of the dangerous or inherently dangerous nature of the activity." It is thus held that
when a company engages in a dangerous or potentially hazardous operation and causes an
accident, the company is specifically and entirely liable to reimburse all those affected by the
accident, and that such responsibility is not subject to any of the exceptions provided for in
the tortuous principles of strict liability laid out in the case of Ryland's vs Fletcher3." The
legal validity established by the court in the case Oleum Gas Leak (M.C.Mehta vs UOI &
OR's)4 also applies in this case, as a Constitution Bench deliberated on the subject in depth.

• In the current instance, the manufacturers are completely accountable to pay the affected
villages, the land, and the groundwater for the harm they create, as well as to take all
necessary means to eradicate the sludge and other toxins in the impacted 350-hectare region.
The polluter pays principle states that the financial costs of preventing or restoring pollution-
related damage must be met completely by the companies that emit the harmful pollutants."

• However, this is an extremely unusual and exceptional case in which the case has been kept
alive in a measured manner even fifteen years after the Court's final decision (dated 13
February 1996) through an appeal against one or more intercessional appeals that fail to
comply with the Honourable Court's decision. The Court's decision could not be made final
until then. It demonstrates how, for more than a decade, misusing the legal system allowed
even the Supreme Court's ultimate ruling to be avoided. This is a very difficult problem in
terms of the sanity and integrity of the legal system, as well as the country's Supreme Court.

• The Advocate, Mr Mehta, spoke on behalf of the Indian Council for Environmental Legal
Action. The statement emphasised that such preparations constitute a complete failure to
follow the instructions of this court. The applications violated the Environmental Justice
Mechanism. They have shown no remorse for putting people's lives and property at risk. The
petitioners are seeking a reduction in the compensation for remedial action of Rs.
373,850,000 INR. Mr Mehta based his argument on the court's ruling in M.C., which held
that "pollution is a civil wrong."

Among the numerous respondents, the following points highlight the significant problem-
causing respondents:

• Hindustan Agro Chemicals Limited (Fourth Respondent) started manufacturing

concentrated sulphuric acid 'Oleum' as well as a single super-phosphate.

3
Ryland v Fletcher [1868] LR 3 HL 330.
4
M C Mehta v Union of India & Ors [1987] 1 SCC 395.
• Tata Silver Chemicals (Fifth Respondent) - Since it began producing 'H' acid, a very
poisonous material primarily for export, this industry has been a nightmare for the local
populace.

• Jyoti Chemicals (Eighth Respondent) – This chemical company principally produced 'H'
acid as well as other hazardous chemicals.

Other enterprises sprung up, creating poisonous chemicals that polluted the hamlet.

ISSUES:

• How can corporations that are functionally linked with a particularly dangerous or
fundamentally risky sector gauge their commitment if people die or are harmed as a result of
a catastrophe or occurrence in that industry?

• Is the Ryland v. Fletcher rule relevant here, or is there another way to assess the obligation?

• If respondents agreed to pay the money needed to complete a successful therapeutic

activity, would they pay simply that amount or would they pay plus interest?

• It may have been extraordinary if the delay had been a few days or months, but in this case,
it is over 14 years and there is no pay-out for the aggregate.

JUDGEMENT

In dealing with the challenging inquiry and the Oleum Gas Leak Instance, the court relied
heavily on the opinions of the Constitution Bench Judgment in M.C. Mehta and Others vs.
Union of India and Others10, which is another well-known case. As a result of this tragedy,
India adopted the absolute risk criteria. M.C. Mehta's case is based on the concept of rigorous
accountability; nonetheless, there are no exceptions, and the man is held entirely responsible
for his actions. According to the rule of absolute responsibility, if an individual engages in an
inherently dangerous activity and any damage is caused to someone else as a result of a
disaster that occurred while performing an intrinsically risky movement, the individual is
liable.

• For the first time, the court applied the Polluter Pays principle. The polluter must
compensate the survivors of the pollution, as well as address the costs and costs of re-
establishing ecological debasement, according to this rule. Overall, it is the polluter's
obligation to fix climate damage and pay clean-up costs, not future generations or the
government. This is typically the case because, if the government bears such expenditures,
the financial burden will ultimately transfer to the citizen, i.e., the non-polluter.

• According to the Supreme Court, when an activity is risky or essentially harmful, the person
who continues to engage in such activity bears the misfortune caused to someone else,
regardless of whether reasonable care was employed while engaging in such an action. In
such circumstances, the Polluter Pays Principle establishes total liability.

• After finally hearing the competent counsels for the groups, the Court issued the following
heads: "The Central Government will decide the sum necessary to complete the treatments."
Simply put, if the respondents do not pay the stipulated sum, the Central Government has the
legal right to recover the equivalent." Furthermore, the Court monitored the addition of Re-4
through Re-8 production lines, facilities, hardware, and a diversified set of unchangeable
resources.

In the matter of Research Foundation For Science And Technology National Resource
Policy v. Union of India and Others5, The judge ultimately determined that concepts such as
the precautionary principle and the polluter pays principle are basic components of Indian
environmental law. The "polluter pays principle" was previously recognised as a component
of accepted international environmental law principles. As a result, the court believes the
concepts should be included in Indian environmental rules.

The courts expanded the extent of the principle's application in the case of A.P. Pollution
Control Board v. Prof. M.V. Nayudu (Retd.) and Ors6. The judges allowed courts, tribunals,
and other environmental organisations to adopt these principles when cases were registered
with the tribunals or organisations.

The Indian Council for Enviro-Legal Action judgement vs Union of India (1996) was not
carried out in 2011, despite the fact that it had been passed 15 years before. As a result, a
Writ Petition was filed in the Supreme Court under the title "Indian Council for Enviro-Legal
Action vs Union of India"11, contending that respondents continued to file various
interlocutory applications in order to avoid the obligation to pay the sum for remediation and

5
Research Foundation For Science And Technology National Resource Policy v. Union of India and Others
(2005) 3 CompLJ 193 SC, 2005 (1) CTC 609, 2005 (192) ELT 8 SC, 2005 (2) JCR 294 SC, JT 2005 (11) SC
135, (2005) 13 SCC 186.
6
A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and Ors, Appeal (civil) 368-371 of 1999.
expenses imposed by the court on the established legal teaching that Polluter Pays Principle.
As stated by the Supreme Court:

"In this case, we painstakingly researched the facts and situations." In the majority of cases,
we also looked at laws adopted by this Court and other countries. We believe that the
applicant-industry should deposit the amount mentioned in the Court's April 11, 1997 ruling,
plus compound interest. The applicant industry has wilfully refused to comply with this
court's rulings since April 11, 1997. Hundreds of villages have suffered as a result of the
ineffective corrective actions that have been executed thus far. The applicant industry
maintained its unwillingness to comply with the court's order, prolonging the case for almost
15 years by submitting interlocutory applications that were completely without merit and so
dismissed with costs. As a result, the applicant industry is ordered to pay Rs.37,385,000 INR
(USD 608,628) plus compound interest at a rate of 12% per year beginning April 11, 1997,
and continuing until the amount is paid or recovered. 12 The applicant industry is also
concerned with paying legal expenses. Even after this Court's final judgement, the case
dragged on for another 15 years. For all these years, the respondents felt obligated to pursue
this case. Many years have passed since the reign of the Enormous Court. Given all of the
facts and circumstances of this matter, we direct that the applicant industry pay Rs.1,000,000
INR in interlocutory proceedings (USD 16,280). The funds will also be used to carry out
remedial operations in Bichhri village and neighbouring territories in the Udaipur district of
Rajasthan, India, under the supervision of the appropriate authorities."

ANALYSIS:

This is a highly unusual and exceptional case in which the respondents purposefully pursued
the lawsuit beyond 15 years after the court's final judgement (13 February 1996) in order to
avoid the rule.

If the aggregate compensation is made, the law of obligation and the Polluter Pays rule will
be applied, and the interest on the size of the settlement will be surveyed to ensure that the
remuneration for harm done is proportionate to the harm caused so that the blamed does not
benefit from his bad behaviour. Concerning the respondents' refusal to comply with the
court's request and disregard for commitments, stricter and more genuine treatment should
have been taken before 15 years had passed because the harm done to the townspeople was
too great and the need to make a quick move not to be paid for a sum of 15 years. Residents
lost their jobs, food and water sources, and others lost friends and family as a result of their
exposure to toxic synthetic compounds. They demanded immediate action. As far as I can
tell, the selection was both stunning and natural. The "Polluter Pays Principle," which is
particularly effective in exposing Mother Earth's threats and transgressions, is used by ethical
Judges. However, by the polluter pays principle, the high compensation guideline that was
taken as a price to make up for the harm they never genuinely mother earth is appropriate. In
my opinion, the alternative was realistic and acceptable.

The court used the "Polluter Pay Principle" for the first time, which states that the polluter is
responsible for all expenses incurred as a result of pollution charges.

This principle arose from the continued evolution of the 'absolute liability principle in the
case of M C Mehta v. Union of India, in which the court mandated that polluters pay a
penalty for causing pollution, which will be used to improve the environmental and
residential conditions for residents of the affected regions.

• The court in the case Oleum Gas Leak (M.C.Mehta vs UOI & OR's)7 applies in this
case as well. Constitution Bench considered the issue thoroughly and reached the
following conclusion: "We believe that an enterprise engaged in a hazardous or
inherently dangerous industry that poses a potential threat to the health and safety of
those 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 as a
result of the hazardous or inherently dangerous industry." If the enterprise is allowed
to engage in a hazardous or inherently dangerous activity for profit, the law must
assume that such permission is contingent on the enterprise bearing the cost of any
accident caused by such hazardous or inherently dangerous activity as an appropriate
item of its overheads. Such hazardous or inherently dangerous action for private profit
can only be permitted if the company involved pays all persons who suffer as a result
of such hazardous or inherently dangerous activity, regardless of how skillfully it is
carried out. Thus, we would hold that where an enterprise is engaged in a hazardous
or inherently dangerous activity and harm results to anyone as a result of an accident
in the operation of such hazardous or inherently dangerous activity, such as the escape

7 M C Mehta v Union of India & Ors [1987] 1 SCC 395.

 of toxic gas, the enterprise is strictly and liable to compensate all those who are
affected by the accident, and such liability is not subject to any of the exceptions that
apply in tort law under the rule Ryland’s vs Fletcher8.
• • In Cambridge Water Co. Ltd. v. Eastern Counties Leather, plc [(1994) (2) W.L.R.
53], the House of Lords recently approved the Rylands rule. The plaintiff, Cambridge
Water Company, was a statutory organisation that provided public water supplies
within a certain jurisdiction that encompassed the city of Cambridge. It was getting
water from a bore well near Sawstyn. The defendant, Eastern Leather, operates a
tannery in Sawston. Pelt degreasing is an inevitable stage in tanning. For this reason,
the defendant was using PCE, an organochlorine. On the defendant's property, PCE
was discovered in a tank. The plaintiff claimed that as a result of the PCE seeping into
the ground, the water in its well became poisoned and unfit for human consumption,
requiring it to find another source at great expense. It brought a lawsuit against the
defendant for the resulting damages. The plaintiff brought his claim on three grounds:
negligence, nuisance, and the Rylands rule. The negligence and nuisance complaint
was dismissed by the trial Judge (High Court), who stated that the defendant could not
have reasonably expected such damage to the plaintiff. The trial Judge found that the
defendant's user was not a non-natural user and hence was not liable for damages
under the Rylands rule. The Court of Appeal declined to rule on the matter on appeal,
citing the Rylands rule. It mainly relied on the decision in Ballard v. Tomlinson
[(1885) 29 Ch. D. 1115], which declared that no one has the right to pollute a
common source in order to prevent his neighbour from getting the full value of his
appropriation right. Furthermore, the Court of Appeal ruled that the defendant's use of
the land was not natural. The House of Lords granted the defendant's appeal, holding
that the defendant's foreseeability of the relevant type of harm was a prerequisite to
the right to recover damages under both the heads of nuisance and the Rylands rule.
Because such was not proven by the plaintiff, the case had to fail. Without a doubt,
the House of Lords held that the defendant's use of the land was a non-natural use, but
dismissed the suit on the grounds that the plaintiff failed to establish that pollution of
their water supply by the solvent used by the defendant in his premises was
foreseeable by the defendant in the circumstances of the case.

8 Ryland v Fletcher [1868] LR 3 HL 330.

 In Gujarat, a few additional units producing 'H' acid have been established, as
demonstrated by the Gujarat High Court's decision in Pravinbhai Jashbhai & Ors. v.
State of Gujarat & Anr9. (1995 (2) G.L.R.1210), a decision issued by one of us,
B.N.Kirpal, J., as Chief Justice of that Court. Silver Chemicals produced 375 MT of
'H' acid, according to reports.

Furthermore, in the case of Vellore Citizens Welfare Forum v. Union of India 10and
others, this idea was controlled by Indian Constitution Articles 48-A and 51-A(g), and
the principle may be inferred from existing legislation. The Supreme Court held
Shriram Factories accountable for the leakage of oleum gas and the devastation of the
environment in the Oleum Gas Leak case, despite the fact that they complied with
applicable regulations such as the Air Act of 1981.

CASE COMMENT:

Human survival is considered as requiring sustainable development. Because the

environment cannot be paid, there is a case to be made for levying taxes on guilty
companies with the assurance that the funds will be utilised to assist victims. In
reality, however, these polluters almost always transmit the whole sum paid to
government officials and consultants, the vast majority of whom profit from the
strategy. The polluter pays concept, as it is currently understood, merely acts as a
vehicle for shifting money from polluters to non-victims (governmental officials).
Given this, it is reasonable to conclude that the case should have been handled more
sternly because it spanned 15 years and the damage done to the villagers was too large
and required immediate action to be reimbursed for 15 years. The decision, in my
opinion, was logical and quite reasonable.

9 Pravinbhai Jashbhai & Ors. v. State of Gujarat & Anr, (1995) 2 GLR 1210.
10
Vellore Citizens Welfare Forum v. Union of India, . AIR 1996 SC 2715.