# INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. UNION OF INDIA

- **Citation:** [1996] 2 S.C.R. 503
- **Court:** Supreme Court of India
- **Decided:** 1996-02-13
- **Bench:** B.P. Jeevan Reddy, B.N. Kirpal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indian-council-for-enviro-legal-action-v-union-of-india-13962
- **Pages:** 53

## Headnote

B
Constitution of India, 1950 : Articles 21 and 32.
Writ Petition-Maintainability of-Social action litigation--On behalf
of affected villagers-Due to pollution caused by private chemical inC
dustries--Directed against Central and State Govemments and State Pollution
Control Board-To compel them to perfonn their statutory duties-Held :
Petition maintainable even if private chemical industries were not amenable
to writ jurisdiction-The Cowt had power and duty to intervene and protect
right to life of citizens-Water (Prevention and Control of Pollution) Act,
1981-AIR (Prevention and Control of Pollution) Act, 1981-Hazardous D
Wastes (Management and Handling) Rules, 1989.
Constitution of India, 1950 : Article 32.
Petition complaining of pollution by private chemical industries-Court
can direct Central Govemment to recover costs of remedial measures from
offending industries-Question of awarding damages against these industries
left open.
Environmental (Protection) Act, 1986: Sections 3 & 4.
Environmental Pollution-Remedial measures-Costs for carrying
out-Central Govemment could levy on pollute~Such power was implicit in
Sections 3 & 4.
·Environmental (Protection) Act, 1986: Sections 3 & 5.
E
F
I
G
Envirimmental Pollution-Remedial measures-Pollute~Liability
of-To defray costs-{Jniversally accepted as sound principle-central
Govemment empowered to give directions and take measures for giving effect
to this principle.
Environmental Pollution-chemical industries-Main culprits-Their H
503
504
SUPREME COURT REPORTS
[1996] 2 S.C.R.
A
establishment and functioning must be scmtinized rigorously.
Torts:
Environmental pollutiort--Negligence-P1inciples of "strict liability'' and
"Polluter pays"-Applicability of-Hazardous or inherently dangerous acB
tivity-Person carrying on-Absolute liability-Rule of-Laid down-In
Oleum gas leak-Not obiter but appropriate and binding--Rule in Reylands
v. Fletche1~Suitability and applicability to Indian conditions.
c
D
E
Practice and Procedure :
Environmental pollution-:;-R.ight to life-Invasion of-Due to pollution
caused by private chemical industries-Rep01ts from experts-Called by
Court-Use of-Various orders passed on basis of reports-Objection theretO-Urged at a belated stage after lapse of several years-Wholly unacceptable.
The units/factories of the Respondents, located in an industrial
complex, were all chemical industries and were controlled by the same
group of individuals. The respondents started producing certain chemicals
like Oleum (concentrated form of sulphuric acid), Single Super Phosphate,
'H' acid, fertilizers and a few other products. The respondents had not
obtained the requi.site clearances/consents/licences; nor did they instal any
equipment for treatment of highly toxic effiuents discharged by them. 'H'
acid was meant for export exclusively. Its manufacture gave rise to enormous quantities of highly toxic effiuents-in particular iron - based and
gypsum-based sludge - which if not properly treated, posed grave threat to
mother Earth. It poisoned the earth, the water and everything that came
F ·in contact with it. The chemical produced ~y the respondents had given
birth to highly toxic sludge (iron-based sludge and gypsum-based sludge)
besides other pollutants. Since the toxic untreated waste waters were
allowed to flow out freely and because. the untreated toxic sludge was
thrown in the open in and around the complex, the toxic substances had
percolated deep into the bowels of the earth polluting foe acquifers and
G the sub-terranean supply of water. The water in the wells and the streams
and turned dark and dirty rendering it unfit for human consumption, unfit
for cattle to drink and for irrigating the land. The soil had become polluted
rendering it unfit for cultivation, the main stay of the villagers, resulting
in misery to the vill~gers needs no emphasis. It spread disease, death and
H disaster in the village and the surrounding areas. The villagers then rose
/.
..
INDIAN COUNCIL FOR E

## Text

_Characters 0–39,887 of 130,410. This is a partial read: ask again with offset=39887 for what follows._

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION
A
v.
UNION OF INDIA
FEBRUARY 13, 1996
[B.P. JEEVAN REDDY AND B.N. KIRPAL, JJ.]
B
Constitution of India, 1950 : Articles 21 and 32.
Writ Petition-Maintainability of-Social action litigation--On behalf
of affected villagers-Due to pollution caused by private chemical inC
dustries--Directed against Central and State Govemments and State Pollution
Control Board-To compel them to perfonn their statutory duties-Held :
Petition maintainable even if private chemical industries were not amenable
to writ jurisdiction-The Cowt had power and duty to intervene and protect
right to life of citizens-Water (Prevention and Control of Pollution) Act,
1981-AIR (Prevention and Control of Pollution) Act, 1981-Hazardous D
Wastes (Management and Handling) Rules, 1989.
Constitution of India, 1950 : Article 32.
Petition complaining of pollution by private chemical industries-Court
can direct Central Govemment to recover costs of remedial measures from
offending industries-Question of awarding damages against these industries
left open.
Environmental (Protection) Act, 1986: Sections 3 & 4.
Environmental Pollution-Remedial measures-Costs for carrying
out-Central Govemment could levy on pollute~Such power was implicit in
Sections 3 & 4.
·Environmental (Protection) Act, 1986: Sections 3 & 5.
E
F
I
G
Envirimmental Pollution-Remedial measures-Pollute~Liability
of-To defray costs-{Jniversally accepted as sound principle-central
Govemment empowered to give directions and take measures for giving effect
to this principle.
Environmental Pollution-chemical industries-Main culprits-Their H
503
504
SUPREME COURT REPORTS
[1996] 2 S.C.R.
A
establishment and functioning must be scmtinized rigorously.
Torts:
Environmental pollutiort--Negligence-P1inciples of "strict liability'' and
"Polluter pays"-Applicability of-Hazardous or inherently dangerous acB
tivity-Person carrying on-Absolute liability-Rule of-Laid down-In
Oleum gas leak-Not obiter but appropriate and binding--Rule in Reylands
v. Fletche1~Suitability and applicability to Indian conditions.
c
D
E
Practice and Procedure :
Environmental pollution-:;-R.ight to life-Invasion of-Due to pollution
caused by private chemical industries-Rep01ts from experts-Called by
Court-Use of-Various orders passed on basis of reports-Objection theretO-Urged at a belated stage after lapse of several years-Wholly unacceptable.
The units/factories of the Respondents, located in an industrial
complex, were all chemical industries and were controlled by the same
group of individuals. The respondents started producing certain chemicals
like Oleum (concentrated form of sulphuric acid), Single Super Phosphate,
'H' acid, fertilizers and a few other products. The respondents had not
obtained the requi.site clearances/consents/licences; nor did they instal any
equipment for treatment of highly toxic effiuents discharged by them. 'H'
acid was meant for export exclusively. Its manufacture gave rise to enormous quantities of highly toxic effiuents-in particular iron - based and
gypsum-based sludge - which if not properly treated, posed grave threat to
mother Earth. It poisoned the earth, the water and everything that came
F ·in contact with it. The chemical produced ~y the respondents had given
birth to highly toxic sludge (iron-based sludge and gypsum-based sludge)
besides other pollutants. Since the toxic untreated waste waters were
allowed to flow out freely and because. the untreated toxic sludge was
thrown in the open in and around the complex, the toxic substances had
percolated deep into the bowels of the earth polluting foe acquifers and
G the sub-terranean supply of water. The water in the wells and the streams
and turned dark and dirty rendering it unfit for human consumption, unfit
for cattle to drink and for irrigating the land. The soil had become polluted
rendering it unfit for cultivation, the main stay of the villagers, resulting
in misery to the vill~gers needs no emphasis. It spread disease, death and
H disaster in the village and the surrounding areas. The villagers then rose
/.
..
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.O.I.
505
in virtual revolt leading to the imposition of Section 144 Cr.P.C. by the A
District Magistrate in the area. It was averred by the respondents that
both the units, had stopped manufacturing 'ff' acid and were closed. Yet
the consequences of their action remain - the sludge, the long-lasting
damage to earth, to underground water, to human beings, to cattle and the
village economy.
The petitioner filed the present writ petition before this Court by way
of social action litigation, complaining precisely of the above situation and
requesting for appropriate remedial action. The Court requested the National Environmental Engineering Research Institute (NEERI) to study
B
the situation in and around the village and submit their report "as to the C
choice and scale of the available remedial alternatives". It was found that
out of a large quantity of sludge only a small quantity had been stored in
the pits provided by the respondents. The remaining sludge was still there
either within the area of the complex of the respondents or outside their
complex. Huge quantities of sludge were lying around either in the form
of mounds or placed in depressions, or spread over the continguous areas D
and covered with local soil to conceal its existence. The said sludge was
only a part of the pernicious discharge emanating from the manufacture
of 'H' acid. The other part, which was not visible now (except in its
deleterious effects upon the soil and underground water) was the 'mother
liquor' produced in enormous quantities which had either flowed out or E
percolated into ·the soil.
On behalf of the petitioner it was contended that the abundant
material on record clearly established the culpability of the respondents for
the devastation in the village and surrounding areas and their responsibility and obligation to properly store the remaining sludge, stop dis·
charge of all untreated effluents by taking necessary measures.
On behalf of the respondents it was contended that they were private
corporate bodies and were not 'State' within the meaning of Article 12 of
F
the Constitution; that a writ petition under Article 32 of the Constitution G
was, therefore, not maintainable; that the State Pollution Control Board
. had been adopting a hostile and malafide attitude towards them; that
blaming them for the pollution was incorrect as a fact and unjustified; that
they had been cooperating with this Court in all matters and carrying out
its directions faithfully, and that the Reports submitted by the various
so-called expert committees that sludge was still lying around within and H.
q
j
506
SUPREME COURT REPORTS
[1996] 2 S.C.R. '
A
outside their complex and/or that the toxic wastes from the Sulphuric Acid
Plant were flowing through and reaching the sludge a:'Jd creating a highly
dangerous situation w~s untrue and incorrect.
B
c
Allowing the appeal, this Court
HELD : 1.1. This writ petition is not really for issuance of appropriate writ, order or directions against the respondents but is directed
against the Central Government, the State Government and the State
Pollution Control Board to perform their statutory duties on the ground
that their failure to carry out their statutory duties is seriously undermining the right to life (of the residents of the village and the affected area)
guaranteed by Article 21 of the Constitution. If this Court finds that the
Government/authorities have not taken the action required of them by law
and that their inaction is jeopardising the right to life of the citizens of
this Country or of any section thereof, it is the duty of this Court to
D intervene. If it is found that the respondents are flouting the provisions of
law and the directions and orders issued by the lawful authorities, this
Court can certainly make appropriate directions to ensure compliance
with law and lawful directions made thereunder. This is a social action
litigation on behalf of the villagers whose right to life, as elucidated by this
Court in several decisions, is invaded and seriously infringed by the
E respondents as is established by the various Reports of the experts called
for, and filed before this Court. If an industry is established without
obtaining the requisite permission and clearances and if the industry is
continued to be run in blatant disregard of law to the detriment of life and
liberty of the citizens living in the vicinity, this Court has power to
F
intervene and' protect the fundamental right to life a.nd liberty_ of the
citizens of this country. [536-E-H; 537-A-B]
1.2. The State Pollution Control Board has not been adopting a
hostile attitude towards the re~pondents and the reports prepared by it
G can be relied upon. If the respondents establish and operate their plants
contrary to law, flouting all safety norms provided by law, the State
Pollution Control Board is bound to act. On that account, it cannot be
said to be acting out of animus or adopting a hostile attitude. Repeated
and persistent violations call for repeated orders. That is no proof of
hostility. The Reports were called by this Court and several Orders pass~d
H on the basis of those Reports. It was never suggested on behalf of Respon-
-
' \
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.O.I.
507
dents that unless they are permitted to cross-examine the experts or the A
persons who made those Reports, their Reports cannot be acted upon. This
objection, urged at this late stage of proceedings - after a lapse of several
years - is wholly unacceptable. The persons who made the said Reports are
all experts in their field and under no obligation either to the State
Pollution Control Board or for that matter to any other person or industry. It is in view of their independence and competence that their
Reports were relied upon and made the basis of passing Orders by this
Court from time to time. (537-C-H; 538-A]
B
13. The report of National Environmental Engineering Research
Institute clearly establish that huge quantities of sludge were still lying C
around either in the form of mounds or placed in depressions, or spread
over the continguous areas and covered with local soil to conceal its
existence. It is worth reiterating that the said sludge is only part of the
pernicious discharges emanating from the manufacture of 'H' acid. The
other part, which is unfortunately not visible now (except in its deleterious
effects upon the soil and underground water) is the 'mother liquor' D
produced in enormous quantities which has either flowed out or percolated
into the soil. It must, therefore, be held that the respondents alone are
responsible for all the damage to the soil, to the underground water and
to the village in general. (539-C-E; H]
Indian Council for Enviro-Legal Action v. Union of India, (1995) 5
SCALE 578, relied on.
E
2.1. Even if it is assumed that this Court cannot award damages
against the respondents in these proceedings that does not mean that the
Court cannot direct the Central Government to determine and recover the F
cost of remedial measures from the respondents.
The Central Government is empowered under Sections 2 (a), 3 and
5 of the Environment (Protection) Act, 1986 to take all measures and issue
all such directions as are called for, for the above purpose. In the present
case, the said powers will include giving directions for the removal of G
sludge, for undertaking remedial measures and also the power to impose
the cost of remedial measures on the offending industry and utilise the
amount so recovered for carrying out remedial measures. This Court can
certainly give directions to the Central Government/its delegate to take all
such measures, if in a given case this Court finds that such directions are H
j
.\
508
SUPREME COURT REPORTS
[1996] 2 S.C.R.
A warranted. It cannot, therefore, be said that this Court cannot make
B
· appropriate directions for the purpose of ensuring remedial action. It is
more a matter of form. [542-E; 543-A-D; G]
Indian Council for Enviro-Legal Action v. Union of India, (1995) 5
SCALE 578, relied on.
2.2. The question is whether and to what extent can the respondents
be made responsible for defraying the cost of remedial measures in these
proceedings under Article 32. Any principle evolved in this behalf should
be simple, practical and suited to the conditions obtaining in this country.
C The law stated by this Court in M.C. Mehta v. Union of India (Oleum Gas
Leak Case), [1987) 1 SCC 395 is by far the more appropriate one and the
said decision is not obiter. According to this rule, once the activio/ carried
on is hazardous or inherently dangerous, the person carrying on such
activity is liable to make good the loss caused to any other person by his
D activity irrespective of the fact whether he took reasonable care while
carrying on his activity. The rule is premised upon the very nature of the
activity carried on. In the words of the.Constitution Bench, such an activity
"can be tolerated only on the condition that the enterprise engaged in such
hazardous or inherently dangerous activity indemnifies all those who
suffer on account of the carrying on of such hazardous or inherently
E
dangerous activity regardless of whether it is carried on carefully or not."
F
The Constitution Bench has also assigned the reason for stating the law
in the said terms. It is that the enterprise (carrying on the hazardous or
inherently dangerous activity) alone has the resource to discover and
guard against hazards or danger and not the person affected and the
practical difficulty (on the part of the affected person) in establishing the
absence of reasonable care. or that the damage to him was foreseeable by
the enterprise. [540-B; 546-F-H; 547-A-C]
23. The Constitution Bench also observed such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle
G of strict liability under the rule in Ryland v. Fletcher. The twin tests ~ apart
from the proof of damage to the plaintiff by the act/negligence of the
defendants - which must be satisfied to attract this rule are "foreseeability"
and "non-natural" user of the land. [545-F]
H
M.C. Mehta v. Union of India, [1987) 1S.C.C.395, followed.
r
. '
-
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.0.I.
509
Union Carbide C01poration v. Union of India, [1991] 4 S.C.C. 584, A
paras 14 & 15, overruled .
Pravinbhai Jashbhai & Ors. v. State of Gujarat and Anr., (1995) 2
G.L.R. 1210; Cambridge Water Company v. Eastern Counties Leather, plc,
(1994) 2 W.L.R. 53 and Bumie Port Authority v. General Jones Pty Ltd.,
(1994) 68 Aus. W 331, referred to.
Ballard v. Tomlinson, (1885) 29 Ch. D. 115, cited.
Rylands v. Fletcher, (1866) 3 H.L. 330, held inapplicable.
B
3.1. The question of liability of the respondents to defray the costs C
of remedial measures can also be looked into from another angle, which
has now come to be accepted universally as a sound principle,. viz., the
"Polluter Pays" Principle. According to this principle, the responsibility for
repairing the damage is that of the offending party. Sections 3 and 5 of the
Environment Act empower the Central Government to give directions and D
take measures for giving effect to this principle. Sections 3 and 4 of the
Environment Act confers upon the Central Government the power to give
directions of the above nature and to the above effect. Levy of costs
required for carrying out remedial measures is implicit in Sections 3 and
4. [547-F-G; 548-G-H; 5:17-E]
"Historic Pollution - Dose the Polluter Pay ?" By Carolyn Shelbourn
- Journal of Planning and Environmental Law, Aug. 1974 issue, approved.
E
3.2. Further, in this case, there is a clear violation of law and
disobedience of the Orders of this Court apart from the orders of the
lawful authorities. This Court has to ensure the observance of law and of F
1
its Orders as a part of enforcement of fundamental rights. That power
cannot be disputed. If so, this Court is competent to make Orders necessary for a full and effective implementation of its Orders - and that
includes the imposition and recovery of cost of all measures including
remedial measures. [542-F, G]
G
4. In the circumstances, it is appropriate that the task of determining
· the amount required for carrying out the necessary remedial measures to
repair the damage and to restore the water and soil to the condition it was
in before the respondents commenced their operations, is placed upon the
Central Government in the light of the provisions of the Environment Act. H
510
SUPREME COURT REPORTS
[1996] 2 S.C.R.
A It is open to the Central Government to take the help and assistance of
the State Government, the State Pollution Control Board or such other
agency or authority as it thinks fit. Itis but appropriate that an estimate.
of the cost of remedial measures be made now with notice to the respondents, which amount should be paid to Central Government and/or
B ·recovered from them by the Central Government. [548-H, 549-A, D]
c
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 967 of
1989.
With
Writ Petition- (C) Nos. 94/90, 824/93 and 76 of 1994.
(Under Article 32 of the Constitution of India.)
Altaf Ahmad, Additional Solicitor General, Harish N. Salve, K.N.
D Bhat and P.P. Malhotra, M.C. Mehta, Ms. Seema Midha, K.R.R. Pillai,
P.R. Seetharaman, R.P. Wadhwani, K.B. Rohtagi, M.K. Aggarwal, Ms.
Aparna Rohtagi, Mukul Mudgal, Aruneshwar Gupta, S.B. Wad, Surya
Kant, Ms. Sushma Suri and Wasim A. Qadri for the appearing parties.
E
The Judgment of th'e Court was delivered by
B.P. JEEVAN REDDY, J. WRIT PETITION (C) NO. 967 OF 1989:
This 'Writ petition filed by an environmentalist organisation brings to
light the woes of people living in the vicinity of chemical industrial plants
p
in India. It highlights the disregard, nay, contempt for law and lawful
authorities on the part of some among the emerging breed of
entrepreneurs, taking advantage, as they do, of the country's need for
industrialisation and export earnings. Pursuit of profit has absolutely
drained them of any feeling for fellow human beings - for that matter, for
anything else. And the law seems to have been helpless. Systemic defects?
G It is such instances which have led many people in this country to believe
that disregard of law pays and that the consequences of such disregard will
never be visited upon them - particularly, if they are men with means.
Strong words indeed - but nothing less would reflect the deep sense of hurt,
the hearing of this case has instilled in us. The facts of the case will bear
H out these opening remarks.
r
j
, .
INDIANCOUNCILFORENVIRO-LEGALActrONv. U.O.I. [B.P.JEEVANREDDY,J.J 511
Bichhri is a small village in Udaipur district of Rajasthan. To its A
north is a major industrial establishment, Hindustan Zinc Limited, a public
sector concern. That did not affect Bichri. Its woes began somewhere in
1987 when the fourth respondent herein, Hindustan Agro Chemicals
Limited started producing certain chemicals like Oleum [said to be the
concentrated form of Sulphuric acid) and Single Super Phosphate. The real
calamity occurred when a sister concern, Silver Chemicals [Respondent B
No. 5}, commenced production of 'H' acid in a plant located within the
same complex. 'H' acid was meant for export exclusively. Its manufacture
gives rise to enormous quantities of highly toxic effluents - in particular,
iron-based and gypsum-based sludge - which if not properly treated, pose
grave threat to mother Earth. It poisons the earth, the water and everything
that comes in contact with it. Jyoti Chemicals (Respondent No. 8] is
another unit established to produce 'H' acid, besides some other chemicals.
Respondents Nos. 6 and 7 were established to produce fertilizers and a
few other products.
All the units/factories of Respondents Nos. 4 to 8 are situated in the
same complex and are controlled by the same group of individuals. All the
units are what may be called "chemical industries". The complex is located
within the limits of Bichhri village.
c
D
Because of the pernicious wastes emerging from the production of E
'H' acid, its manufacture is stated to have been banned in the western
countries. But the need of 'H' acid continues in the West. That need is
catered to by the industries like the Silver Chemicals and Jyoti Chemicals
in this part of the world. (A few other units producing 'H' acid have been
established in Gujarat, as would be evident from the decision of the F
Gujarat High Court in Pravinbhai Jashbhai & Ors. v. State of Gujarat &
Anr., (1995) 2 G.L.R. 1210, a decision rendered by one of us, B.N. Kirpoal,
J. as the Chief Justice of that Court.] Silver Chemicals is stated to have
produced 375 MT of 'H' acid. The quantity of 'H' acid produced by Jyoti
Chemicals is not known. It says that it produced only 20 mt., as trial G
production, and no more. Whatever quantity these two units may have
produced, it has given birth to about 2400-2500 MT of highly toxic sludge
[iron-based sludge and gypsum-based sludge] besides other pollutants.
Since the toxic untreated waste waters were allowed to flow out freely and
because the untreated toxic sludge was thrown in the open in and around
the complex, the toxic substances have percolated dee.P into the bowels of H
512
SUPREME COURT REPORTS
[1996] 2 S.C.R.
A
the earth polluting the acquifers and the sub-terranean supply of water.
B
The water in the wells and the streams has turned dark and dirty rendering
it unfit for human consumption. It has become unfit for cattle to drink and
for irrigating the land. The soil has become polluted rendering it unfit for
cultivation, the main stay of the villagers. The resulting misery to the
villagers needs no emphasis. It spread disease, death and disaster in the
village and the surrounding areas. This sudden degradation of earth and
water had an echo in Parliament too. An Hon'ble Minister said, action was
being taken, but nothing meaningful was done on the spot. The villagers
then rose in virtual revolt leading to the imposition of Section 144 Cr.P.C.
by the District Magistrate in the area and the closure of Silver Chemicals
C in January, 1989. It is averred by the respondents that both the units, Silver
Chemicals and Jyoti Chemicals have stopped manufacturing 'H' acid since
January, 1989 and are closed. We may assume it to be so. Yet the consequences of their action remain - the sludge, the long-lasting damage to
earth, to underground water, to human beings, to cattle and the village
D economy .. It is with these consequences that we are to contend with in this
writ petition.
The present social action litigation was initiated in August, 1989
complaining precisely of the above situation and requesting for appropriate
remedial action. To the writ petition, the petitioner enclosed a number of
E photographs illustrating the enormous damage done to water, cattle, plants
and to the area in general. A good amount of technical data and other
material was also produced supporting the averments in the writ petition.
COUNTER-AFFIDAVITS OF THE RESPONDENTS:
F
On notice being given, counter-affidavits have been filed by the
Government of India, Government of Rajasthan, Rajasthan Pollution Control Board [R.P.C.B.] and Respondents Nos. 4 to 8. Since the earliest
counter-affidavit in point of time is that of R.P. C.B., we shall refer to it in
the first instance. It was filed on October 26, 1989. The following are the
G averments:
(a) Re.: Hindustan Agro Chemicals Limited [R-4]: The unit obtained
'No-Objection Certificate' from the P.C.B. for manufacturing sulphuric
acid and alumina sulphate. The Board granted clearance subject to certain
conditions. Later 'No-Objection Certificate' was granted under the Water
H [Prevention and Control of Pollution] Act, 1974 [Water Act] and Air
_,
INDIANCOUNCILFORENVIRO-LEGALACTIONv. U.O.l. (B.P.JEEVANREDDY,J.) 513
(Prevention and Control of Pollution) Act, 1981 [Air Act], again subject to A
certain conditions. However, this unit changed its product without
clearance from the Board. Instead of sulphuric acid, it started manufacturing Oleum and Single Super Phosphate [S.S.P.]. Accordingly, consent was
refused to the unit on February 16, 1987. Directions were also issued to
close down the unit.
(b) Re.: Silver Chemicals [R-5) : This unit was promoted by the fourth
respondent without obtaining 'No-Objection Certificate' from the Board
for the manufacture of 'H' acid. The waste water generated from the
manufacture of 'H' acid is highly acidic and contains very high concentraB
tion of dissolved solids along with several dangerous pollutants. This unit C
was commissioned in February, 1988 without obtaining the prior consent
of the Board and accordingly, notice pf closure was served on April 30,
1988. On May 12, 1988, the unit applied for consent under Wat er and Air
Acts which was refused. The Government was requested to issue directions
for cutting off the electricity and water to this unit but no action was taken
by the Government. The unit was found closed on the date of mspection, D
viz., October 2, 1989.
(c) Re.: Rajasthan Multi Fertilizers [R-6] : This unit was installed without
obtaining prior 'No-Objection Certificate from the Board and without even
applying for consent under Water and Air Acts. Notice was served on this E
unit on February 20, 1989. In reply whereto, the Board was informed that
the unit was closed since last three years and that electricity has also been
cut off since February 12, 1988.
(d) Re.: Phosphates India [R-7] : This unit was also established without
obtaining prior 'No-Objection Certificate' from the Board nor did it apply F
for consent under the Water and Air Acts. When notice dated February
20, 1989 was served upon this unit, the Management replied that this unit
was closed for a long time.
(e) Re.: Jyoti Chemicals [R-8] : This unit applied for 'No-Objection
Certificate' for producing ferric alum. 'No-Objection Certificate' was isG
sued imoosing various conditions on April 8, 1988. The 'No-Objection
Certificate' was withdrawn on May 30, 1988 on account of non-compliance
with its conditions. The consent applied for under Water and Air Acts by
this unit was also refused. Subsequently, on February 9, 1989, the unit
, applied for fresh consent for manufacturing 'H' acid. The consent was H
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SUPREME COURT REPORTS
[1996] 2 S.C.R.
A
refused on May 30, 1989. The Board has been keeping an eye upon this
unit to ensure that it does not start the manufacture of 'H' acid. On
October 2, 1989, when the unit was inspected, it was found closed.
B
c
The Board submitted further [in its counter-affidavit] that the sludge
lying in the open in the premises of Respondents Nos. 4 to 8 ought to be
disposed of in accordance with the provisions contained in the Hazardous
Wastes (Management and Handling) Rules, 1989 framed under Environment (Protection) Act, 1986. According to the Board, the responsibility for
creating the ,said hazardous situation was squarely that of Respondents
Nos. 4 to 8. The Board enclosed several documents to its counter in
support of the averments contained therein.
The Govemment of Rajas than filed its counter-affidavit on January 20,
1990. It made a curious statement in Para 3 to the following effect: "(T)hat
the State Government is now aware of the pollution of under ground water
being caused by liquid effluents from the firms arrayed as Respondent Nos.
D 4 to 8 in the writ petition. Therefore, the State Government has initiated
action through the Pollution Control Board to check further spread of
pollution." The State Government stated that the water in certain wells in
Bichri village and some other surrounding villages has become unfit for
drinking by human beings and cattle, though in some other wells, the water
E remains unaffected.
The Ministry of Environment and Forests, Govemment of India filed
its counter on February 8, 1990. In their counter, the Government of India
stated that Silver Chemicals was merely granted a Letter of Intent but it
never applied for conversion of the Letter of Intent into industrial licence.
F
Commencing production before obtaining industrial licence is an offence
under Industries [Development and Regulation] Act, 1951. So far as Jyoti
Chemicals is concerned, it is stated that it has not approached the Government at any time even for a Letter of Intent. The Government of India
stated that in June, 1989, a study of the situation in Bichri village and some
G other surrounding villages was conducted by the Centre for Science and
Environment. A copy of their Report is enclosed to the counter. The
Report states the consequences emanating from the production of 'H' acid
and the manner in which the resulting wastes were dealt with by Respondents Nos. 4 to 8 thus :
H
"The effluents are very difficult to treat as many of the pollutants
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INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.O.I. (B.P. JEEVAN REDDY, J.] 515
present are refractory in nature. Setting up such highly pollutin~ A
industry in a critical ground water area was essentially ill-conceived. The effluents seriously polluted the nearby drain and overflowed into U daisagar main canal, severely corroding its
cement-concrete lined bed and banks. The polluted waters also
seriously degraded some agricultural land and damaged standing
crops. On being ordered to contain the effluents, the industry
installed an unlined holding pond within its premises and resorted
B
to spraying the effluent on the nearby hill-slope. This only resulted
in extensive seepage and percolation of the effluents into ground
water and their spread down the acquif er. Currently about 60 wells
appear to have been significantly polluted but every week a few
new wells, down the acquifer start showing signs of pollution. This
has created ~erious problems for water supply for domestic purposes, cattle-watering crop irrigation and other beneficial uses, and
c
it has also caused human illness and even death, degradation of
land and damage to fruit, trees and other vegetation. There are D
serious apprehensions that the pollution and its harmful effects
will spread further after the onset of the monsoon as the water
percolating from the higher parts of the basin moves down carrying
the pollutants lying on the slopes - in the holding pond and those
already underground."
Each of the Respondent Nos. 4 to 8 filed separate counter-affidavits.
E
All the affidavits filed on behalf of these respondents are sworn-to by Lt.
Gen. M.L. Yadava, who described himself as the President of each of these
units. In the counter-affidavit filed on behalf of the fourth respondent, it is
stated that it is in no way responsible for the situation complained of. It is . p
engaged in the manufacture of· sulphuric acid and had commenced its
operations on January 6, 1987. It has been granted 'No-Objection
Certificates' from time to time. The consent obtained from R.P.C.B. is valid
upto August 15, 1988. Application for extension of consent has already
been filed. This counter-affidavit was filed on january 18, 1990.
In the counter-affidavit filed on behalf of the fifth respondent [Silver
Chemicals], it is stated that the manufacture of 'H' acid which was commenced in February, 1988 has been completely stopped after January, 1989.
G
The respondent is fully conscious of the need to conserve and protect
environment and is prepared fully to cooperate in that behalf. It is ready H
516
SUPREME COURT REPORTS
[1996] 2 S.C.R.
A to comply with any stipulations or directions that may be made for the
purpose. It, however, submitted that the real culprit is Hindustan Zinc
Limited. The Archeological Department of the Government of Rajasthan
had issued environmental clearance for its unit [rather surprising statement]. 'No-Objection Certificates' had also been issued by the Executive
B
c
Engineer [Irrigation], Udaipur Division and the Wild Life Warden. So far
as the requirement of 'consent' under Water and Air Acts is concerned, it
merely stated that it had applied for it. Its closure in January, 1989 was on
account of promulgation of an order under Section 144 Cr. P.C. by the
District Magistrate in view of wide-spread agitation by the villagers against
its functioning.
In the counter-affidavit filed on behalf of the sixth respondent [Rajasthan Mult~ Fertilizers], it is stated that it commenced production on March
14, 1982 and closed down in December, 1985. Electrical connection to it
was disconnected on February 13, 1988. It was submitted that since it is a
small-scale industry, no consent was asked for from anyone. It denied that
D it was causing any pollution, either ground, air or water.
In the counter-affidavit filed on behalf of the seventh respondent
• [Phosphates India], it is stated that this unit commenced production on
May 15, 1988 but was closed on and with effect from September 1, 1988
E
for want of support from the Central Government in the form of subsidies.
It submitted that it has merged with the fourth respondent in 1987-88.
In the counter-affidavit filed on behalf of the eighth respondent [Jyoti
Chemicals], it is stated that it has no electrical connection, that it had
commencei,i production in April 1987 and closed down completely in
F
January, 1989. It is stated that the unit produced 'H' acid to an extent of
20 MT as a trial measure for one month with the permission of the
Industries Department. It is no longer manufacturing 'H' acid and, therefore, is not responsible for causing any pollution. It is further submitted
that it is a small-scale industry and was registered with the District Industry
G Centre, Udaipur for the manufacture of ferric alum and 'H' acid. It began
its operation simultaneously with the fifth respondent, Silver Chemicals,
and several of the clearances are common to both, as both of them are
•
located together. The trial production of 'H' acid, it is stated, took place
in January, 1987 ..
H
Hindustan ·Zinc Limited was impleaded as the ninth respondent at
(
j
)
..
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.O.I. (B.P. JEEV AN REDDY, J.J 517
the instance of Respondents Nos. 4 to 8. It has filed a counter-affidavit A
denying that it is responsible in any manner for causing any pollution in
Bichri village or the surrounding areas. According to it, its plants are
situated downstream, towards north of Bichri village. We do not think it
necessary to refer to this affidavit in any detail inasmuch as we are not
concerned, in this writ petition, with the pollution, if any, caused by the
ninth respondent in other villages but only with the pollution caused by
Respondents Nos. 4 to 8 in Bichri or surrounding villages.
B
ORDERS PASSED AND STEPS TAKEN DURING
THE PERIOD 1989-1992:
The first considered Order made, after hearing the parties, by this
Court is of December 11, 1989. Under this Order, the Court requested the
National Environmental Engineering Research Institute [NEERI] to study
c
the situation in and around Bichri village and submit their report "as to the
choice and scale of the available remedial alternatives". NEERI was reD
quested to suggest both short-term and long-term measures required to
combat the hazard already caused. Directions were also made for supply
of d1inking water to affected villages by the State of Rajasthan. The R.P.C.B.
was directed to make available to the Court the Report it had prepared
concerning the situation in Bichri village.
On the next da.te of hearing, i.e., March 5, 1990, the Court took note
of the statements made on behalf of Respondents Nos. 4 to 8 that they have
completely stopped the manufacture of 'H' acid in their plants and that
they did not propose to resume its manufacture. The Court also took note
E
of the petitioner's statement that though the manufacture of 'H' acid may F
have been stopped, a large quantity of highly dangerous effluent
waste/sludge has accumulated in the area and that unless properly treated,
stored and removed, it constitutes a serious danger to ~~ environment.
Directions were given to the R.P .C.B. to arrange for its· transportation,
treatment and safe storage according to the technically accepted procedures for disposal of chemical wastes of that kind. All reasonable expenses G
for the said operation were to be borne by Respondents Nos. 4 to 8
;;-....
[hereinafter referred to in this judgment as the "Respondents"]. So far as
the polluted water in the wells was concerned, the Court noted the offer
made by the learned counsel for the respondents that they will themselves
undertake the de-watering of the wells. The R.P.C.B. was directed to H
l f
1
\
518
SUPREME COURT REPORTS
[1996] 2 S.C.R.
A inspect and indicate the number and location of the wells to be de-watered.
B
c
The matter was next taken up on April 4, 1990. It was brought to the
notice of the Court that no meaningful steps were taken for removing the
sludge as directed by this Court in its Order dated March 5, 1990. Since
the monsoon was about to set in, which would have further damaged the
earth and water in the area, the Court directed respondents to immediately
remove the sludge from the open spaces where it was lying and store it in
safe places to avoid the risk of seepage of toxic substances into the soil
during the rainy season. The respondents were directed to complete the
task within five weeks therefrom.
It is not really necessary to refer to the contents of the various Orders
passed in 1990 and 1991, i.e., subsequent to the Order dated April 4, 1990
for the present purposes. Suffice it to say that the respondents did not
comply with the direction to store the sludge in safe places. The de-waterD ing of wells did not prove possible. There was good amount of bickering
between the respondents on one side and the R.P.C.B. and the Ministry of
Environment and Forests on the other. They blamed each other for lack
of progress in the matter of removal of sludge. Meanwhile, years rolled by
and the hazard continued to rise. NEERI submitted an interim Report.
[We are, however, not referring to the contents of this interim Report
E inasmuch as we would be referring to the contents of the final Report
presently after referring to a few more relevant orders of this Court.)
On February 17, 1992, this Court passed a fairly elaborate order
observing that Respondents Nos. 5 to 8 are responsible for discharging the
F hazardous industrial wastes; that the manufacture of 'H' acid has given rise
to huge quantities of iron sludge and gypsum sludge - approximately 2268
MT of gypsum-based sludge and about 189 mt. of iron-based sludge;-that
while the respondents blamed Respondent No. 9 as the main culprit,
Respondent No. 9 denied any responsibility therefor. The immediate concern, said the Court, was the appropriate remedial action. The l'eport of
G the R.P.C.B. presented a disturbing picture. It stated that the respondents
have deliberately spread the hazardous material/sludge all over the place
which has only heightened the problem of its removal and that they have
failed to carry out the Order of this Court dated April 4, 1990. Accordingly,
the Court directed the Ministry of Environment and Forests, Government
H of India to depute its experts immediately to inspect the area to ascertain
-·
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INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.O.I. [B.P. JEEVAN REDDY, J.) 519
the existence and extent of gypsum-based and iron-based sludge, to suggest A
the handling and disposal procedures and to prescribe a package for its
transportation and safe storage. The cost of such storage and transportation was to be recovered from the respondents.
Pursuant to the above Order, a team of experts visited the area and
submitted a Report alongwith an affidavit dated t:Aarch 30, 1992. The
report presented a highly disturbing picture.