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 ofmore
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 CETP- sites 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 Enviro- Legal 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 caused by 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 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 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 free environment is a 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
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. Some major areas of
environmental hazardous are not
covered. There also exist uncovered
gaps in areas of major
environmental hazards. There are
inadequate linkages in handling
matters of industrial and
environmental safety. Control
mechanisms to guard against slow,
insidious build up of hazardous
substances, especially new
chemicals, in the environment are
weak. Because of a multiplicity of
regulatory agencies, there is need
for an authority which can. Assume
the lead role for studying,
planning and implementing long-term
requirements of environmental
safety and to give direction to,
and co-ordinate a system of speedy
and adequate response to emergency
situations threatening the
environment ...... In view of what
has been state above, there is
urgent need for the enactment of a
general legislation on
environmental protection which
inter alia, should enable co-
ordination of activities of the
various regulatory agencies,
creation of an authority or
authorities with adequate powers
for environmental protection,
regulation of discharge of
environmental pollutants and
handling of hazardous substances,
speedy response in the event of
accidents threatening environment
and deterent punishment to those
who endanger human environment,
safety and health".
Sections 3, 4, 5, 7 and 8 of the Environment Act 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 3-
5, 1996). Table 8 presents the data
collection by TNPCB at individual
ETPs indicating that TDS, sulphates
and chlorides concentrations are
below the prescribed standards for
inland surface water discharge. The
quality of ambient waters needs to
the maintained through the
standards stipulated by TNPCB."
The Board has Power under the Environment Act and 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 memberspreferably 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 impose pollution 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" are 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.