petitioner:

vellore citizens welfare forum

vs.

respondent:
union of india & ors.

date of judgment: 28/08/1996

judgment
kuldip singh, j..
this petition - public interest - under article 32 of the constitution of india has been
filed by vellore citizens welfare forum and is directed against the pollution which is
being caused by enormous discharge of untreated effluent by the tanneries and other
industries in the state of tamil nadu. it is stated that the tanneries are discharging
untreated effluent into agricultural fields to, road-sides,water ways and open lands. the
untreated effluent is finally discharged in river palar which is the main source of water
supply to the residents of the area. according to the petitioner the entire surface and
sub-soil water of river palar has been polluted resulting in non availability potable
water to the residents of the area. it is stated that the tanneries in the state of tamil
nadu have caused environmental degradation in the area. according to the
preliminary survey made by the tamil nadu agricultural university research center
vellore nearly 35,000 hectares of agricultural land in the tanneries belt, has become
either partially or totally unfit for cultivation. it has been further stated in the petition
that the tanneries use about 170 types of chemicals in the chrome tanning processes.
the
said chemicals include sodium chloride, lime, sodium sulphate, chlorium sulphate, fat
liquor amonia and sulphuric acid besides dyes which are used in large quantities. nearly
35 litres of water is used for processing one kilogram of finished leather, resulting in
dangerously enormous quantities of toxic effluents being let out in the open by
the tanning industry. these effluents have spoiled the physico-chemical properties of
the soil, and have contaminated ground water by percolation. according to the
petitioner an independent survey conducted by peace members,
a non governmental organisation, covering 13 villages of dindigal and peddiar
chatram anchayat unions, reveals that 350 wells out of total of 467 used for drinking
and irrigation purposes have been polluted. women and children have to walk miles to
get drinking water. legal aid and advice board of tamil nadu requested two lawyers
namely, m.r, ramanan and p.s.subramanium to visit the area and submit a report
indicating the extent of pollution caused by the tanneries. relevant part of the report is as
under : "as per the technical report dated 28.5.1983 of the hydrological
investigations carried out in solur village near ambur it was noticed that 176 chemicals
including acids were contained in the tannery effluents. if 40 litres of water with
chemicals are required for one kilo of leather, with the production of 200 tons
of leather per day at present and likely to be increased multifold in the next
four to five years with the springing up of more tanneries like mushroom in and
around ambur town, the magnitude of the effluent water used with chemicals and acids
let out daily can be shockingly imagined. ..... the effluents are let out from the
tanneries in the nearby lands, then to goodar and palar rivers. the lands, the
rivulet and the river receive the effluents containing toxic chemicals and acids. the sub
soil water is polluted ultimately affecting not only arable lands, wells used for
agriculture but also drinking water wells. the entire ambur town and the villages
situated nearby do not have good drinking water. some of the influential and rich
people are able to get drinking water from a far off place connected by a few pipes.
during rainy days and floods, the chemicals deposited into the rivers and lands
spread out quickly to other lands. the effluents thus let out, affect cultivation,
either crops do not come up at all or if produced the yield isreduced abnormally
too low. ........ the tanners have come to stay. the industry is a foreign exchange
earner.but one moot point is whether all the cost of the lives of lakhs of people
with increasing human population the activities of the tanneries should be
encouraged on monetary considerations. we find that the tanners have absolutely no
regard for the healthy environment in and around their tanneries. the effluents
discharged have been stored like a pond openly in the most of the places
adjacent to cultivable lands with easy access for the animals and the people. the
ambur municipality, which can exercise its powers as per the provisions of the
madras district municipalities act (1920) more particularly under sections 226 to 231,
249 to 253 and 338 to 342 seems to be a silent spectator probably it does not
want to antagomise the highly influential and stupendously rich tanners. the powers
given under section 63 of the water prevention and control of pollution act 1974 (6 of
1974) have not been exercised in the case of tanneries in ambur and the
surrounding areas."
alongwith the affidavit dated july 21, 1992 filed by deputy secretary to government,
environment and forests department of tamil nadu, a list of villages affected by the
tanneries has been attached. the list mentions 59 villages in the three divisions of
thirupathur, vellore and ranipath.there is acute shortage of drinking water in
these 59 villages and as such alternative arrangements were being made by the
government for the supply of drinking water.in the affidavit dated january 9, 1992 filed by
member secretary, tamil nadu pollution control board (the board), it has been stated as
under :"it is submitted that there are 584 tanneries in north arcot ambedkar district vide
annexure 'a' and 'd'.out of which 443 tanneries have applied for consent of the
board.the government were concerned with the treatment and disposal of effluent
from tanneries. the government gave time upto 31.7.1985 to tanneries to put up
effluent treatment plant (e.t.p.). so far 33 tanneries in north arcot ambedkar district
have put up effluent treatment plant.the board has stipulated standards for the
effluent to be disposed by the tanneries." the affidavits filed on behalf of state of
tamil nadu and the board clearly indicate that the tanneries and other polluting industries
in the state of tamil nadu are being persuaded for the last about 10 years to control
the pollution generated by them. they were given option either to construct common
effluent treatment plants for a cluster of industries or to set up individual pollution
control devices. the central government agreed to give substantial subsidy for the
construction of common effluent treatment plants (cetps). it is a pity that till date
most of the tanneries operating in the state of tamil nadu have not taken any step
to control the pollution caused by the discharge of effluent. this court on may 1,
1995 passed a detailed order. in the said order this court noticed various earlier orders
passed by this court and finally directed as under : "mr. r. mohan, learned senior
counsel for the tamil nadu pollution control board has placed before us a
consolidated tatement dividing the 553 industries into three parts. the first part in
statement no.1 and the second part in statement no.2 relate to those tanneries
who have set up the effluent treatment plants either individually or collectively to the
satisfaction of the tamil nadu pollution control board. according to the report
placed on the record by the board, these industries in statements 1 and 2 have not
achieved the standard or have not started functioning to the satisfaction of the
board. so far as the industries in statements 1 and 2 are concerned, we give them
three months notice from today to complete the setting up of effluent treatment plant
(either individually or collectively) failing which they shall be liable to pollution
fine on the basis of their past working and also liable to be closed. we direct the tamil
nadu pollution control board to issue individual notices to all these industries within
two weeks from today. the board is also directed to issue a general notice on
three consecutive days in a
local newspaper which has
circulation in the district
concerned.
so far as the 57 tanneries listed
in statement iii (including 12
industries who have filed writ
petition, nos. of which have been
given above) are concerned, these
units have not installed and
commissioned the effluent treatment
plants despite various orders
issued by this court from time to
time. mr. r. mohan, learned senior
counsel appearing for tamil nadu
pollution control board states that
the board has issued separate
notices to these units directing
them to set up the effluent
treatment plants. keeping in view
the fact that this court has been
monitoring the matter for the last
about four years and various orders
have been issued by this court from
time to time, there is no
justification to grant any further
time to these industries. we,
therefore, direct the- 57
industries listed hereunder to be
closed with immediate effect.
...... we direct the district
collector and the senior
superintendent of police of the
district to have our orders
complied with immediately. both
these officers shall file a report
in this court within one week of
the receipt of the order. we give
opportunity to these 57 industries
to approach this ' court as and
when any steps towards the setting
up of effluent treatment plants
their plants and their
commissioning have been taken by
these industries. if any of the
industries wish to be relocated to
 some other area they may come out
with a proposal in that respect :
on july 28,1995 this court suspended the closure order
in respect or seven industries mentioned therein for a
period of eight weeks. it was further observed as under:
"mr. g . ramaswamy, learned senior
advocate appearing for some of the
tanneries in madras states that the
setting up of the effluent
treatment plants is progressing
satisfactorily. according to him
several lacs have already been
spent and in a short time it would
start operating. mr. mohan,
learned counsel for the tamil nadu
pollution control board will
inspect that project and file a
report by 3rd august, 1995".
this court on september 8, 1995 passed the following
order :
"the tamil nadu pollution control
board relates to about 299
industries stated by m.g.
ramaswamy, mr. kapil sibal and mr.
sanghi, learned senior advocates
appearing f for these industries,
that the setting up of projects is
in progress. according to the
learned counsel tamil nadu leather
development corporation (talco) is
in charge of the project. the
learned counsel state that the
project shall be completed in every
respect within 3 months from today.
the details of these industries
and the projects undertaken by
talco as per list no. i is as
under...... we are of the view that
it would be in the interest of
justice to give a little more time
to these industries to complete the
project. although the industries
have asked time for three months,
we give them time till 31st
december, 1995. we make it clear
that in case the projects are not
completed by that time, the
industries shall be liable to be to
be closed forthwith. apart from
that, these industries shall also
be liable to pollution fine for the
 past. period during which they had
been operating. we also take this
opportunity to direct talco to take
full interest in these projects and
have the projects completed within
the time granted by us.
mr. kapil sibal, learned counsel
appearing for the tanneries, stated
that council, for indian finished
leather manufacturers export
association is a body which is
collecting 5% on all exports. this
body also helps the tanneries in
various respect. we issue notice to
the association to be present in
this court and assist this court in
all the matters pertaining to the
leather tanneries in madras. mr.
sampath takes notice .
so far as list no. ii is concerned,
it relates to about 163 tanneries
(except m/s. vibgyor tanners & co.,
kailasagiri roads, mittalam-635 811
ambur (via), the pollution control
board has inspected all these
tanneries and placed its report
before us. according to the report
mosts of these tanneries have not
even started primary work at spot.
some of them have not even located
the land. the tanneries should have
themselves set, up the pollution
control devices right at time when
they started working. they have not
done so. they are not even
listening to various orders passed
by this court from time to time
during the last more than 2 years.
it is on the record that these
tanneries are polluting the area.
even the water around the area
where they are operating is not
worth drinking. we give no further
time to these tanneries. we direct
all the following tanneries which
are numbering about 162 to be
closed with immediate effect.
it may be mentioned that this court suspended the
closure orders in respect of various industries from time to
time enable the said industries to install the pollution
control devices.
 this court by the order dated october 20, 1995 directed
the national environmental engineering research institute,
nagpur (neeri) to send a team of experts to examine, in
particular, the feasibility of setting up of cetps for
cluster of tanneries situated at, different places in, the
state of tamil nadu where the work of setting up of the
cetps has not started and also to inspect the existing cetps
including those where construction work was in progress .
neeri submitted its first report on december 9, 1995 and the
second report on february 12, 1996. this court examined the
two reports and passed the following order on april 9, 1996:
"pursuant to this court's order
dated december 15, 1955, neeri has
submitted final examination report
dated february 12, 1996, regarding
cetps constructed/under
construction by the tanneries in
various districts of the state of
tamil nadu. a four member team
constituted by the director, neerj
inspected the cetps from january 27
to february 12, 1996. according to
the report, at present, 30 cetps
sites have been identified for
tannery clusters in the five
districts of tamil nadu viz., north
arcot ambedkar, erode periyar,
dindigul anna, trichi and chengai
m.g.r. all the 30 cetps are
inspected by the team. according to
the report, only 7 cetps are under
operation, while 10 are under
construction and 13 are proposed.
the following 7 etps are under
operation:
1. m/s. talco ranipet tannery
effluent treatment co. ltd.
ranipet, dist. north arcot
ambedkar.
2. m/s. talco ambur tannery
effluent treatment co. ltd.,
thuthipet sector, ambur dist. north
arcot ambedkar.
3. m/s. talco vaniyambadi tanners
enviro control systems ltd.,
vaniyambattu, vaniyambadi, dt.
north arcot.
4. m/s. pallavaram tanners
industrial effluent treatment co.,
chrompet area, dist. chengai) mgr.
5. m/s. ranipet sidco finished
leather effluent treatment co. pvt.
ltd., ranipet, dist. north arcot
ambedkar.
6. m/s. talco vaniyambadi tanners
enviro control systems ltd.
udayendiram, vaniyambadi, dist.
north arcot ambedkar.
7. m/s. talco pernambut tannery
effluent treatment co. ltd.,
bakkalapalli, pernambut, dist.
north arcot ambedkar.
the cetps mentioned at sl. nos. 5,
6 & 7 were commissioned in january,
1996 and were on the date of report
passing through stabilization
period. the report indicates that
so far as the above cetps are
concerned, although there is
improvement in the performance they
are still not operating at their
optimal level and are not meeting
the standards as laid down by the
ministry of environment and forests
and the tamil nadu pollution
control board for inland surface
water discharge. the neeri has
given various recommendations to be
followed by the above mentioned
units. we direct the units to
comply with the recommendations of
neeri within two months from today.
the tamil nadu pollution control
board shall monitor the directions
and have the recommendations of the
neeri complied with. so far as the
three units which are under
stabilization, the neeri team may
inspect the same and place a final
report before this court within the
period of two months.
apart from the tanneries which are
connected with the above mentioned
7 units, there are large number of
other tanneries operating in the 5
districts mentioned above which
have not set up any satisfactory
pollution control devices. mr.
mohan learned counsel for the tamil
nadu pollution control board states
that notices were issued to all
those tanneries from time to time
directing them to set up the
necessary pollution control
devices. it is mandatory for the
tanneries to set up the pollution
control devices. despite notices it
has not been done. this court has
been monitoring these matters for
the last about 4 years. there is no
awakening or realisation to control
the pollution which is being
generated by these tanneries.
the neeri has indicated the
physico-chemical characteristics of
ground water from dug wells near
tannery clusters. according to the
report, water samples show that
well-waters around the tanneries
are unfit for drinking. the report
also shows that the that the
quality of water in paler river
down stream from the place where
effluent is discharged, is highly
polluted. we, therefore, direct
that all the tanneries in the
districts of north arcot ambedkar,
erode periyar, dindigul anna,
trichi and chengai m.g.r which are
not connected with the seven cetps
mentioned above, shall be closed
with immediate effect. none of
these tanneries shall be permitted
to operate till the time the cetps
are constructed to the satisfaction
of the tamil nadu pollution control
board. we direct the district
magistrate and the superintendent
of police of the area concerned, to
have all these tanneries closed
with immediate effect. mr. mehta
has placed on record the report of
tamil nadu pollution control board.
in statement i of the index, there
is a list of 30 industries which
have also not been connected with
any cetps. according to the report,
these industries have not, till
date set up pollution control
devices. we direct the closure of
these industries also. list is as
under. ..... the tamil nadu
pollution control] board has filed
another report dated january 18,
1996 pertaining to 51 tanneries.
there is dispute regarding the
permissible limit of the quantity
of total dissolved solids (tds).
since the neeri team is visiting
these tanneries, they may examine
the tds aspect also and advise this
court accordingly. meanwhile, we do
not propose to close any of the
tannery on the ground that it is
discharging more than 2001 tds.
the report indicates that except
the 17 units, all other units are
non-complaint units in the sense
that they are not complying with
the bod standards. excepting these
17 industries the remaining 34
tanneries listed hereunder are
directed to be closed forthwith.
..... we direct the district
magistrate and the superintendent
of the police of the area concerned
to have all these industries
mentioned above closed forthwith
the tanneries in the 5 districts of
tamil nadu referred to in this
order have been operating for a
longtime. some of the tanneries are
operating for a period of- more
than two decades. all this period
these tanneries have been,
polluting the area. needless to say
that the total environment in the
area has been polluted the area.
needless issue show cause notice to
these industries through their
learned counsel who are present in
court why they be not subjected to
heavy pollution fine. we direct the
state of tamil nadu through the
industry ministry, the tamil nadu
pollution central board and all
other authorities concerned and
also the government of india
through the ministry of environment
and forests not to permit the
setting up of further tanneries in
the state of tamil nadu.
copy of this order be communicated
to the concerned authorities within
 three days. to come up for further
consideration after the replies to
the show cause. there are large
number of tanneries in the state of
tamil nadu which have set up
individual pollution control
devices and which according to the
tamil nadu pollution control board
are operating satisfactorily. the
fact however remains that all these
tanneries are discharging the
treated efficient within the
factory precinct itself. we direct
neeri team which is visiting this
area to find out as to whether the
discharge of the effluent on the
land within the factory premises is
permissible environmentally. m/s.
nandeem tanning company, valayampet
vaniyambadi is one is one of such
industries. copy of the report
submitted by the tamil nadu
pollution control board be
forwarded to the neeri. neeri may
inspect this industry within ten
days and file a report in this
court. copy of this order be
communicated to neeri.
matter regarding distilleries in
the state of tamil nadu.
the tamil nadu pollution control
board has placed on record the
factual report regarding
distilleries mentioned in page 4 of
the index of its report dated april
5, 1996. learned counsel for the
board states that the board shall
issue necessary notices to these
industries to set up pollution
control devices to the satisfaction
of the board, failing which these
distilleries shall be closed. the
pollution control board shall place
a status report before this court."
the neeri submitted two further reports on may 1, 1996
and june 11, 1996 in respect of cetps set up by various
industries. the neeri reports indicate that the physico-
chemical 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 causedby them to
villagers in the affected area, to the soil and to the
underground water and hence, they are bound to take all
necessary measures to remove sludge and other pollutants
lying in the affected areas". the "polluter pays" principle
as interpreted by this court means that the absolute
liability for harm to the environment extends not only to
compensate the victims of pollution but also the cost of
restoring the environmental degradation. remediation of the
damaged environment is part of the process of "sustainable
development" and as such polluter is liable to pay the cost
to the individual sufferers as well as the cost of reversing
the damaged ecology.
the precautionary principle and the polluter pays
principle have been accepted as part of the law of the land.
article 21 of the constitution of india guarantees
protection of life and personal liberty. articles 47, 48a
and 51a(g) of the constitution are as under:
"47. duty of the state to raise the
level of nutrition and the standard
of living and to improve public
health. the state shall regard the
raising of the level of nutrition
and the standard of living of its
people and the improvement of
public health as among its primary
duties and in particular, the state
shall endeavour to bring about
prohibition of the consumption
except for medicinal purposes of
intoxicating drinks and of drugs
which are injurious to health.
48a. (g) protection and improvement
of environment and safeguarding of
forests and wild life. the state
shall endeavour to protect and
improve the environment and to
safeguard the forests and wild life
of the country.
51a.(g) to protect and improve the
natural environment including
forests, takes, rivers and wild
life, and to have compassion for
living creatures."
apart from the constitutional mandate to protect and
improve the environment there are plenty of post
independence legislations on the subject but more relevant
enactments for our purpose are: the water (prevention and
control of pollution act 1974 (the water act), the air
(prevention and control of pollution) act, 1981 (the air
act) and the environment protection act 1986 (the
environment act). the water act provides for the
constitution of the central pollution control board by the
central government and the constitution of one state
pollution control boards by various state governments in the
country. the boards function under the control of the
governments concerned. the water act prohibits the use or
streams and wells fordisposal of polluting matters. also
provides for restrictions on outlets and discharge of
effluents without obtaining consent from the board.
prosecution and penalties have been provided which include
sentence of imprisonment. the air act provides that the
central pollution control board and the state pollution
control boards constituted under the later act shall also
perform the powers and functions under the air act. the main
function of the boards, under the air act, is to improve the
quality of the air and to prevent. control and abate air
pollution in the country. we shall deal with the environment
act in the later part of this judgement.
in view of the above mentioned constitutional and
statutory provisions we have no hesitation in holding that
the precautionary principle and the polluter pays pcinciple
are part of the environmental law of the country.
even otherwise once these principles are accepted as
part of the customary international law there would be no
difficultly in accepting them as part of the domestic law.
it is almost accepted proposition of law that the rule of
customary international law which are not contrary to the
municipal law shall be deemed to have been incorporated in
the domestic law and shall be followed by the courts of law.
to support we may refer to justice h.r. khanna's opinion in
addl. distt. magistrate jabalpur vs shivakant shukla (air
1976 sc 1207) jolly george varghese's case (air 1980 sc 470)
and gramophone company's case (air 1984 sc 667).
the constitutional and statutory provision protect a
persons right to fresh air, clean water and pollution free
environment, but the source of the right is the inalienable
common law right of clean environment. it would be useful to
quote a paragraph from blackstone's commentaries on the laws
of england (commentaries on the laws of england of sir
willian blackstone) vol.iii, fourth edition published in
1876. chapter xiii, "of nuisance" depicts the law on the
subject in the following words :
"also, if a person keeps his hogs,
or other noisome animals, 'or
allows filth to accumulate on his
premises, so near the house of
another, that the stench incommodes
him and makes the air unwholesome,
 this is an injurious nuisance, as
it tends to deprive him of the use
and benefit of his house. a like
injury is, if one's neighbour sets
up and exercises any offensive
trade; as a tanner's, a tallow
chandler's, or the like; for though
these are lawful and necessary
trades, yet they should be
exercised in remote places; for the
rule is, sic utere "tuo, ut alienum
non laedas;" this therefore is an
actionable nuisance. 'and on a
similar principle a constant
ringing of bells in one's immediate
neighbourhood may be a nuisance
....... with regard to other
corporeal heriditaments; it is a
nuisance to stop or divert water
that used to run to another's
meadow or mill; to corrupt or
poison a water-course, by erecting
a due house or a lime-pit, for the
use of trade, in the upper part of
the stream; 'to pollute a pond.
from which another is entitled to
water his cattle: to obstruct a
drain; or in short to do any act in
common property, that in its
consequences must necessarily tend
to the prejudice of one's
neighbour. so closely does the law
of england enforce that excellant
rule of gospel-morality, of "doing
to others. as we would they should
do unto ourselves ."
our legal system having been founded on the british
common law the right of a person to pollution free
environment isa part of the basic jurisprudence of the
land.
the statement of objects and reasons to the environment
act, inter alia, states as under :
"the decline in environmental
quality has been evidenced by
increasing pollution, loss of
vegetal cover and biological
diversity, excessive concentrations
of harmful chemicals in the ambient
atmosphere and in food chains,
growing risks of environmental
accidents and threats to life
support systems. the world
community's resolves to protect and
enhance the environmental quality
found expression in the decisions
taken at the united nations
conference on the human environment
held in stock hold in june, 1972.
government of india participated in
the conference and strongly voiced
the environmental concerns. while
several measures have been taken
for environmental protection both
before and after the conference,
the need for a general legislation
further to implement the decisions
of the conference has become
increasingly evident ......
existing lass generally focus on
specific types of pollution or on
specific categories of hazardous
substances. somemajor areas of
environmental hazardous are not
covered. there also exist uncovered
gaps in areas of major
environmental hazards. there are
inadequate linkages in handling
matters of industrial and
environmental safety. control
mechanisms to guard against slow,
insidious build up of hazardous
substances, especially new
chemicals, in the environment are
weak. because of a multiplicity of
regulatory agencies, there is need
for an authority which can. assume
the lead role for studying,
planning and implementing long-term
requirements of environmental
safety and to give direction to,
and co-ordinate a system of speedy
and adequate response to emergency
situations threatening the
environment ...... in view of what
has been state above, there is
urgent need for the enactment of a
general legislation on
environmental protection which
inter alia, should enable 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 members- preferably
with expertise in the field of pollution control and
environment protection- to be appointed by the central
government. the central government shall confer on the said
authority the powers to issue directions under section 5 of
the environment act and for taking measures with respect to
the matters referred to in clause (v), (vi) (vii) (viii)
(ix) (x) and (xii) of sub-section (2) of section 3. the
central government shall consitute the authority before
september 30, 1996.
2. the authority so constituted by the central government
shall implement the "precautionary principle" and the
"polluter pays" principle. the authority shall, with the
help of expert opinion and after giving opportunity to the
concerned polluters assess the loss to the
ecology\environment in the affected areas and shall also
identify the individuals/families who have suffered because
of the pollution and shall assess the compensation to be
paid to the said individuals/families. the authority shall
further determine the compensation to be recovered from the
polluters as cost of reversing the damaged environment. the
authority shall lay down just and fair procedure for
completing the exercise.
3. the authority shall compute the compensation under two
heads namely, for reversing the ecology and for payment to
individuals. a statement showing the total amount to be
recovered, the names of the polluters from who the amount is
to be recovered, the amount to be recovered from each
polluter, the persons to who the compensation is to be paid
and the amount payable to each of them shall be forwarded to
the collector\district magistrates of the area concerned.
the collector\district magistrate shall recover the amount
from the polluters, if necessary, as arrears of land
revenue. he shall disburse the compensation awarded by the
authority to be affected persons/families.
4. the authority shall direct the closure of the industry
owned/managed by a polluter in case he evades or refuses to
pay the compensation awarded against him. this shall be in
addition to the recovery from his as arrears of land
revenue.
5. an industry may have set up the necessary pollution
control device at present but it shall be liable to pay for
the past pollution generated by the said industry which has
resulted in the environmental degradation and suffering to
the residents of the area.
6. we imposepollution fine of rs. 10,000/- each on all
the tanneries in the districts of north arcot ambedkar,
erode periyar, dindigul anna, trichi and chengai m.g.r. the
fine shall be paid before october 31, 1996 in the office of
the collector/district magistrate concerned. we direct the
collectors/district magistrates of these districts to
recover the fines from the tanneries. the money shall be
deposited, alongwith the compensation amount recovered from
the polluters, under a separate head called "environment
protection fund" and shall be utilised for compensating the
affected persons as identified by the authorities and also
for restoring the damaged environment. the pollution fine is
liable to the recovered as arrears of land revenue. the
tanneries which fail to deposit the amount by october 31,
1996 shall be closed forthwith and shall also be liable
under the contempt of courts act.
7. the authority, in consultation with expert bodies like
neeri, central board, board shall frame scheme/schemes for
reversing the damage caused to the ecology and environment
by pollution in the state of tamil nadu. the scheme/schemes
so framed shall be executed by the state government under
the supervision of the central government. the expenditure
shall be met from the "environment protection fund" and from
other sources provided by the state government and the
central government.
8. we suspend the closure orders in respect of all the
tanneries in the five districts of north arcot ambedkar,
erode periyar, dindigul anna, trichi and chengai m.g.r. we
direct all the tanneries in the above five districts to set
up cetps or individual pollution control devices on or
before november 30, 1996. those connected with cetps shall
have to install in addition the primary devices in the
tanerries. all the tanneries in the above five districts
shall obtain the consent of the board to function and
operate with effect from december 15, 1996. the tanneries
who are refused consent or who fail to obtain the consent of
the board by december 15, 1996 shall be closed forthwith.
9. we direct the superintendent of police and the
collector/district magistrate/deputy commissioner of the
district concerned to close all those tanneries with
immediate effect who fail to obtain the consent from the
board by the said date. such tanneries shall not be reopened
unless the authority permits them to do so. it would be open
to the authority to close such tanneries permanently or to
direct their relocation.
10. the government order no. 213 dated march 30, 1989 shall
be enforced forthwith. no. new industry listed in annexure-i
to the notification shall be permitted to be set up within
the prohibited area. the authority shall review the case of
all the industries which are already operating in the
prohibited area and it would be open to authority to direct
the relocation of any of such industries.
11. the standards stipuated by the board regarding total
dissolved solids (tds) and approved by the neeri shall be
operative. all the tanneries and other industries in the
state of tamil nadu shall comply with the said standards.
the quality of ambient waters has to be maintained through
the standards stipulated by the board.
we have issued comprehensive directions for achieving
the end result in this case. it is not necesary for this
court to monitor these matters any further. we are of the
view that the madras high court would be in a better
position to monitor these matters hereinafter. we,
therefore, request the chief justice of the madras high
court to constitute a special bench "green bench" to deal
with this case and other environmental matters. we make it
clear that it would be open to the bench to pass any
appropriate order/orders keeping in view the directions
issued by us. we may mention that "green benches" 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.

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]]

petitioner:
union carbide corporation

vs.

respondent:
union of india etc.

date of judgment04/05/1989

bench:
pathak, r.s. (cj)
bench:
pathak, r.s. (cj)
venkataramiah, e.s. (j)
misra rangnath
venkatachalliah, m.n. (j)
ojha, n.d. (j)

citation:
1990 air 273 1989 scc (2) 540
1989 scale (1)932
act:
bhopal gas leak disaster (registration and processing of
claims) act, 1985: court giving reasons for the overall
settlement order dated february 14, 1989--compelling duty
both judicial and humane to secure immediate relief to the
victims.

headnote:
the bhopal gas leak tragedy that occurred at midnight of
2nd december, 1984, by the escape of deadly chemical fumes
from the appellant's factory was a great industrial disaster
and it took an immediate toil of 2600 human lives and left
tens of thousands of innocent citizens of bhopal physically
affected in various ways. as per the figures furnished by
the union of india in its amended plaint a total number of
2,660 persons suffered agonising and excruciating deaths
between 30,000 to 40,000 persons sustained serious injuries
as a result of the said disaster.
legal proceedings for the recovery of compensation for
the victims were initiated against the multi-national compa-
ny first in the u.s. courts and later in distt. court at
bhopal in suit no. 113 of 1986. the present appeals concern
with the order dated 4th april, 1988 passed by the madhya
pradesh high court whereby it modified the interlocutory
order dated 17.12.1987 made by the distt. judge and granted
interim compensation of rs.250 crores. both the union of
india and the union carbide corporation have appealed to
this court against that order.
the court by its order dated the 14th february, 1989
made in these appeals directed that there shall be an over-
all settlement of the claims in the suit for 470 million
u.s. dollars and termination of all civil and criminal
proceedings. on may 4, 1989 the court pronounced its reasons
for its aforesaid order dated 14.2.89thus:
the statement of the reasons is not made with any sense
of finality as to the infallibility of the decision; but
with an open mind to be able to appreciate any tenable and
compelling legal or factual infirmities that may be brought
out, calling for remedy in review under article 137 of
the constitution. [132c-d]
129
the basic consideration motivating the conclusion of the
settlement was the compelling need for urgent relief. con-
siderations of excellence and niceties of legal principles
were greatly over-shadowed by the pressing problems of very
survival for a large number of victims. [133a, c]
the instant case is one where damages are sought on
behalf of the victims of a mass disaster, and having regard
to the complexities and the legal question involved, any
person with an unbiased vision would not miss the time
consuming prospect for the course of the litigation in its
sojourn through the various courts, both in india and later
in united states. this court considered it a compelling
duty. both judicial and humane, to secure immediate relief
to the victims. in doing so, the court did not enter upon
any forbidden ground. what this court did was in continua-
tion of what had already been initiated. [133e-f, h; 134a]
the range of choice for the court in regard to the
figures was, therefore, between the maximum of 426 million
u.s. dollars offered by shri nariman and the minimum of 500
million u.s. dollars suggested by the attorney general.
[134f-g]
having regard to all the circumstances including the
prospect of delays inherent in the judicial process in india
and thereafter in the matter of domestication of the decree
in the united states for the purpose of execution, the court
directed that 470 million u.s. dollars which upon immediate
payment and with interest over a reasonable period, pending
actual distribution amongst the claimants, would aggregate
very nearly to 500 million u.s. dollars or its rupee equiva-
lent of approximately rs.750 crores which the attorney
general had suggested. be made the basis of the settlement.
[134g-h; 135a-b]
the settlement proposals were considered on the premises
that the government had the exclusive statutory authority to
represent andact on behalf of the victims and neither
counsel had any reservation as to this. the order was also
made on the premises that the bhopal gas leak disaster
(registration and processing of claims) act 1985 was a valid
law. [135b-c]
there might be different opinions on the interpretation
of laws or on questions of policy or even on what may be
considered wise or unwise; but when one speaks of justice
and truth, these words mean the same thing to all men whose
judgment is uncommitted. [140b-c]
the compulsions of the need for immediate relief to tens of
130
thousands of suffering victims could not wait till these
questions, vital though they be, are resolved in due course
of judicial proceedings. [142d-e]
a settlement has been recorded upon material and in
circumstances which persuaded the court that it was a just
settlement. this is not to say that this court will shut out
any important material and any compelling circumstances
which might impose a duty on it to exercise the powers of
review. like all other human institutions, this court is
human and fallible. what appears to the court to be just and
reasonable in that particular context and setting, need not
necessarily appear to others in the same day. which view is
right, in the ultimate analysis, is to be judged by what it
does to relieve the undeserved suffering of thousands of
innocent citizens of this country. [142f-g]
decisions of courts cannot be reacted or altered or
determined by agitational pressures. if a decision is wrong,
the process of correction must be in a manner recognised by
law. all of those who invoke the corrective processes in
accordance with law shall be heard and the court will do
what the law and the course of justice requires. the matter
concerns the interests of a large number of victims of a
mass disaster. the court directed the settlement with the
earnest hope that it would do hem good and bring them imme-
diate relief, for, tomorrow might be too ate for many of
them. but the case equally concerns the credibility of, and
the public confidence in, the judicial process. [143b, d-e]
those who trust this court will not have cause for despair.
[143f]
m.c. mehta v. union of india, air 1987 sc 1(186; theo-
ries of compensation, r.e. goodin: oxford journal of legal
studies, 1989 p.57 and wallace mendelson.. supreme court
statecraft--the rule of law and men, referred to.

judgment:
civil appellate jurisdiction: civil appeal nos. 3187 and
3188 of 1988.
from the judgment and order dated 4.4.1988 of the madhya
pradesh high court in cr no. 26 of 1988.
anil b. dewan, j.b. dadachanji, mrs. a.k. verma for the
appellant.
k. parasaran, a. mariarputham, miss a. subhashini and
c.l. sahu for the respondents.
131
the following order of the court was delivered:
order
the bhopal gas leak tragedy that occurred at midnight on
2nd december, 1984, by the escape of deadly chemical fumes
from the appellant's pesticide-factory was a horrendous
industrial mass disaster, unparalleled in its magnitude and
devastation and remains a ghastly monument to the de-huma-
nising influence of inherently dangerous technologies. the
tragedy took an immediate toll of 2,660 innocent human lives
and left tens of thousands of innocent citizens of bhopal
physically impaired or affected in various degrees. what
added grim poignance to the tragedy was that the
industrial-enterprise was using methyl iso-cyanate, a lethal
toxic poison, whose potentiality for destruction of life and
biotic-communities was, apparently, matched only by the lack
of a pre-package of relief procedures for management of any
accident based on adequate scientific knowledge as to the
ameliorative medical procedures for immediate neutralisation
of its effects.
it is unnecessary for the present purpose to refer, in
any detail, to the somewhat meandering course of the legal
proceedings for the recovery of compensation initiated
against the multi-national company initially in the courts
in the united states of america and later in the district
court at bhopal in suit no. 113 of 1986. it would suffice to
refer to the order dated 4 april, 1988 of the high court of
madhya pradesh which, in modification of the interlocutory-
order dated 17 december, 1987 made by the learned district
judge, granted an interim compensation of rs.250 crores.
both the union of india and the union carbide corporation
appealed against that order.
this court by its order dated 14 february, 1989 made in
those appeals directed that there be an overall settlement
of the claims in the suit, for 470 million us dollars and
termination of all civil and criminal proceedings. the
opening words of the order said:
"having given our careful considera-
tion for these several days to the facts and
circumstances of the case placed before us by
the parties in these proceedings, including
the pleadings of the parties, the mass of data
placed before us, the material relating to the
proceedings in the courts in the united states
of america, the offers and counter-offers made
between the parties at different stages
132
during the various proceedings, as well as the
complex issues of law and fact raised before
us and the submission made thereon, and in
particular the enormity of human suffering
occasioned by the bhopal gas disaster and the
pressing urgency to provide immediate and
substantial relief to victims of the disaster,
we are of opinion that the case is pre-emi-
nently fit for an overall settlement between
the parties covering all litigations, claims,
rights and liabilities related to and arising
out of the disaster ..... "
(emphasis supplied)
it appears to us that the reasons that
persuaded this court to make the order for
settlement should be set-out, so that those
who have sought a review might be able effec-
tively to assist the court in satisfactorily
dealing with the prayer for a review. the
statement of the reasons is not made with any
sense of finality as to the infallibility of
the decision; but with an open mind to be able
to appreciate any tenable and compelling legal
 or factual infirmities that may be brought
out, calling for remedy in review under arti-
cle 137 of the constitution.
the points on which we propose to set-out
brief reasons are the following:
(a) how did this court arrive at the sum of
470 million us dollars for an over-all settle-
ment?
(b) why did the court consider this sum of 470
million us dollars as 'just, equitable and
reasonable'?
(c) why did the court not pronounce on certain
important legal questions of far reaching
importance said to arise in the appeals as to
the principles of liability of monolithic,
economically entrenched multi-national compa-
nies operating with inherently dangerous
technologies in the developing countries of
the third world--questions said to be of great
contemporary relevance to the democracies of
the third-world?
there is yet another aspect of the review pertaining to
the part of the settlement which terminated the criminal
proceedings. the questions raised on the point in the re-
view-petitions, prima facie, merit consideration and we
should, therefore, abstain from saying anything which might
tend to pre-judge this issue one way or the other.
133
the basic consideration motivating the conclusion of the
settlement was the compelling need for urgent relief. the
suffering of the victims has been intense and unrelieved.
thousands of persons who pursued their own occupations for
an humble and honest living have been rendered destitute by
this ghastly disaster. even after four years of litigation,
basic questions of the fundamentals of the law as to liabil-
ity of the union carbide corporation and the quantum of
damages are yet being debated. these, of course, are impor-
tant issues which need to be decided. but, when thousands of
innocent citizens were in near destitute conditions, without
adequate subsistential needs of food and medicine and with
every coming morrow haunted by the spectre of death and
continued agony, it would be heartless abstention, if the
possibilities of immediate sources of relief were not ex-
plored. considerations of excellence and niceties of legal
principles were greatly over-shadowed by the pressing prob-
lems of very survival for a large number of victims.
the law's delays are, indeed, proverbial. it has been
the unfortunate baneof the judicial process that even
ordinary cases, where evidence consists of a few documents
and the oral testimony of a few witnesses, require some
years to realise the fruits of litigation. this is so even
in cases of great and unquestionable urgency such as fatal
accident actions brought by the dependents. these are hard
realities. the present case is one where damages are sought
on behalf of the victims of a mass disaster and, having
regard to the complexities and the legal questions involved,
any person with an unbiased vision would not miss the time
consuming prospect for the course of the litigation in its
sojourn through the various courts, both in india and later
in united states.
it is indeed a matter for national introspection that
public response to this great tragedy which affected a large
number of poor and helpless persons limited itself to the
expression of understandable anger against the industrial
enterprise but did not channel itself in any effort to put
together a public supported relief fund so that the victims
were not left in distress, till the final decision in the
litigation. it is well known that during the recent drought
in gujarat, the devoted efforts of public spirited persons
mitigated, in great measure, the loss of cattle-wealth in
the near famine conditions that prevailed.
this court, considered it a compelling duty, both judi-
cial and humane, to secure immediate relief to the victims.
in doing so, the court did not enter upon any forbidden
ground. indeed, efforts had
134
earlier been made in this direction by judge keenan in the
united states and by the learned district judge at bhopal.
what this court did was in continuation of what had already
been initiated. even at the opening of the arguments in the
appeals, the court had suggested to learned counsel on both
sides to reach a just and fair settlement. again, when
counsel met for re-scheduling of the hearings the suggestion
was reiterated. the response of learned counsel on both
sides was positive in attempting a settlement, butthey
expressed a certain degree of uneasiness and scepticism at
the prospects of success in view of their past experience of
such negotiations when, as they stated, there had been
uninformed and even irresponsible criticism of the attempts
at settlement. the learned attorney general submitted that
even the most bona fide, sincere and devoted efforts at
settlement were likely to come in for motivated criticism.
the court asked learned counsel to make available the
particulars of offers and counter offers made on previous
occasions for a mutual settlement. learned counsel for both
parties furnished particulars of the earlier offers made for
an overall settlement and what had been considered as a
reasonable basis in that behalf. the progress made by previ-
ous negotiations was graphically indicated and these docu-
ments form part of the record. shri nariman stated that his
client would stand by its earlier offer of three hundred and
fifty million us dollars and also submitted that his client
had also offered to add appropriate interest, at the rates
prevailing in the u.s.a., to the sum of 350 million us
dollars which raised the figure to 426 million us dollars.
shri nariman stated that his client was of the view that
amount was the highest it could go upto. in regard tothis
offer of 426 million us dollars the learned attorney-general
submitted that he could not accept this offer. he submitted
that any sum less than 500 million us dollars would not be
reasonable. learned counsel for both parties stated that
they would leave it to the court to decide what should be
the figure of compensation. the range of choice for the
court in regard to the figure was, therefore, between the
maximum of 426 million us dollars offered by shri nariman
and the minimum of 500 million us dollars suggested by the
learned attorney general.
in these circumstances, the court examined the prima
facie material as to the basis of quantification of a sum
which, having regard to all the circumstances including the
prospect of delays inherent in the judicial-process in india
and thereafter in the matter of domestication of the decree
in the united states for the purpose of execution and di-
rected that 470 million us dollars, which upon immediate
payment
135
and with interest over a reasonable period, pending actual
distribution amongst the claimants, would aggregate very
nearly to 500 million us dollars or its rupee equivalent of
approximately rs.750 crores which the learned attorney
general had suggested, be made the basis of the settlement.
both the parties accepted this direction.
the settlement proposals were considered on the premise
that government had the exclusive statutory authority to
represent andact on behalf of the victims and neither
counsel had any reservation as to this. the order was also
made on the premise that the bhopal gas leak disaster
(registration and processing of claims) act, 1985 was a
valid law. in the event the act is declared void in the
pending proceedings challenging its validity, the order
dated 14, february, 1989 would require to be examined in the
light of that decision.
we should make it clear that if any material is placed
before this court from which a reasonable inference is
possible that the union carbide corporation had, at any time
earlier, offered to pay any sum higher than an out-right
down payment of us 470 million dollars, this court would
straightaway initiate suo motu action requiring the con-
cerned parties to show cause why the order dated 14 febru-
ary, 1989 should not be set aside and the parties relegated
to their respective original positions.
the next question is as to the basis on which this court
considered this sum to be a reasonable one. this is not
independent of its quantification, the idea of reasonable-
ness for the present purpose is necessarily a broad and
general estimate in the context of a settlement of the
dispute and not on the basis of an accurate assessment by
adjudication. the question is how good or reasonable it is
as a settlement, which would avoid delays, uncertainties and
assure immediate payment. the estimate, in the very nature
of things, cannot share the accuracy of an adjudication.
here again one of the important considerations was the range
disclosed by the offers and counter offers which was between
426 million us dollars and 500 million us dollars. the court
also examined certain materials available on record includ-
ing the figures mentioned in the pleadings, the estimate
made by the high court and also certain figures referred to
in the course of the arguments.
there are a large number of claims under the act. in the
very nature of the situation, doubts that a sizeable number
of them are either without any just basis or were otherwise
exaggerated could not
136
be ruled out. it was, therefore, thought not unreasonable to
proceed on some prima facie undisputed figures of cases of
death and of substantially compensatable personal injuries.
the particulars of the number of persons treated at the
hospitals was an important indicator in that behalf. this
court had no reason to doubt the bona fides of the figures
furnished by the plaintiff itself in the pleadings as to the
number of persons suffering serious injuries.
from the order of the high court and the admitted posi-
tion on the plaintiff's own side, a reasonable, prima facie,
estimate of the number of fatal cases and serious personal
injury cases, was possible to be made. the high court said:
" ..... in the circumstances, leaving a
small margin for the possibility of some of
the claims relating to death and personal
injuries made by the multitude of claims
before the director of claims of the state
government being spurious, there is no reason
to doubt that the figure furnished by the
plaintiff union of india in its amended plaint
can be safely accepted for the purpose of
granting the relief' of interim payment of
damages. it has been stated by the plaintiff
union of india that a total number of 2660
persons suffered agonising and excruciating
deaths and between 30,000 to 40,000 sustained
serious injuries as a result of the disas-
ter ..... "
(emphasis supplied)
there is no scope for any doubt that the cases referred
to as those of 'serious injuries' include both types of
cases of permanent total and partial disabilities of various
degrees as also cases of temporary total or partial disabil-
ities of different degrees. the high court relied upon the
averments and claims in the amended pleadings of the plain-
tiff, the union of india, to reach this prima facie finding.
then, in assessing the quantum of interimcompensation
the high court did not adopt the standards of compensation
usually awarded in fatal-accidents-actions or personal-
injury-actions arising under the motor vehicles act. it is
well-known that in fatal-accidentactions where children are
concerned, the compensation awardable is in conventional
sums ranging from rs.15,000 to rs.30,000 in each case. in
the present case a large number of deaths was of children of
very young age. even in the case of adults, according to the
general run of damages in comparable cases, the damages
assessed on the
137
usual multiplier-method in the case of income groups com-
parable to those of the deceased-persons, would be anywhere
between rs.80,000 and rs. 1,00,000.
but the high court discarded, and rightly, these ordi-
nary standards which, if applied, would havelimited the
aggregate of compensation payable in fatal cases to a sum
less than rs.20 crores in all. the high court thought it
should adopt the broader principle in m.c. mehta v. union of
india, air 1987 sc 1086. stressing the need to apply such a
higher standard, the high court said:
"as mentioned earlier, the measure of damages
payable by the alleged tort-teaser as per the
nature of tort involved in the suit has to be
correlated to the magnitude and the capacity
of the enterprises because such compensation
must have a deterrent effect .........
(emphasis supplied)
applying these higher standards of compensa-
tion, the high court proceeded to assess
damage in the following manner:
"bearing in mind, the above factors, in the
opinion of this court, it would not be unrea-
sonable to assume that if the suit proceeded
to trial the plaintiff-union of india would
obtain judgment in respect of the claims
relating to deaths and personal injuries at
least in the following amounts: (a) rs.2 lakhs
in each case of death: (b) rs.2 lakhs in each
case of total permanent disability; (c) rs.1
lakh in each case of permanent partial disa-
blement and (d) rs.50,000 in each case of
temporary partial disablement."
(emphasis supplied)
half of these amounts were awarded as interim compensation.
an amount of rs.250 crores was awarded.
the figures adopted by the high court in regard to the
number of fatal cases and cases of serious personal injuries
do not appear to have been disputed by anybody before the
high court. these data and estimates of the high court had a
particular significance in the settlement. then again, it
was not disputed before us that the total number of fatal
cases was about 3000 and of grievous and serious personal
injuries, as verifiable from the records of the hospitals of
cases treated
138
at bhopal, was in the neighbourhood of 30,000. it would not
be unreasonable to expect that persons suffering serious and
substantially compensable injuries would have gone to hospi-
tals for treatment. it would also appear that within about 8
months of the occurrence, a survey had been conducted for
purposes of identification of cases of death and grievous
and serious injuries for purposes of distribution of certain
ex gratia payments sanctioned by government. these figures
were, it would appear, less than ten thousand.
in these circumstances, as a rough and ready estimate,
this court took into consideration the prima facie findings
of the high court and estimated the number of fatal cases at
3000 where compensation could range from rs.l lakh to rs.3
lakhs. this would account for rs.70 crores, nearly 3 times
higher than what would, otherwise, be awarded in comparable
casses in motor vehicles accident claims.
death has an inexorable finality about it. human lives
that have been lost were precious and in that sense price-
less and invaluable. but the law can compensate the estate
of a person whose life is lost by the wrongful act of anoth-
er only in the way of the law is equipped to compensate i.e.
by monetary compensations calculated on certain well-recog-
nised principles. "loss to the estate" which is the entitle-
ment of the estate and the 'loss of dependancy' estimated on
the basis of capitalised present-value awardable to the
heirs and dependants, are the main components in the compu-
tation of compensation in fatal accident actions. but, the
high court in estimating the value of compensation had
adopted a higher basis.
so far as personal injury cases are concerned, about
30,000 was estimated as cases of permanent total or partial
disability. compensation ranging from rs.2 lakhs to
rs.50,000 per individual according as the disability is
total or partial and degrees of the latter was envisaged.
this alone would account for rs.250crores. in another
20,000 cases of temporary total or partial disability com-
pensation ranging from rs. 1 lakh down to rs.25,000 depend-
ing on the nature and extent of the injuries and extent and
degree of the temporary incapacitation accounting for a
further allocation of rs. 100 crores, was envisaged. again,
there might be possibility of injuries of utmost severity in
which case even rs.4 lakhs per individual might have to be
considered. rs.80 crores, additionally for about 2000 of
such cases were envisaged. a sum of rs.500 crores approxi-
mately was thought of as allocable to the fatal cases and
42,000 cases of such serious personal injuries leaving
behind in their trail total or partial incapacitation either
of permanent or temporary character.
139
it was considered that some outlays would have to be
made for specialised institutional medical treatment for
cases requiring such expert medical attention and for reha-
bilitation and after care. rs.25 crores for the creation of
such facilities was envisaged.
that would leave another rs.225 crores. it is true that
in assessing the interim compensation the high court had
taken into account only the cases of injuries resulting in
permanent or temporary disabilities--total--or partial--and
had not adverted to the large number of other claims, said
to run into lakhs, filed by other claimants.
such cases of claims do not, apparently, pertain to
serious cases of permanent or temporary disabilities but are
cases of a less serious nature, comprising claims for minor
injuries, loss of personal belongings, loss of live-stock
etc. for which there was a general allocation of rs.225
crores. if in respect of these claims allocations are made
at rs.20,000, rs. 15,000 and rs. 10,000 for about 50,000
person or claims in each category--accounting for about one
and half lakhs more claims--the sums required would be met
by rs.225 crores.
looked at from another angle, if the corpus of rs.750
crores along with the current market rates of interest on
corporate borrowings, of say 14% or 14 1/2 % is spent over a
period of eight years it would make available rs. 150 crores
each year; or even if interest alone is taken, about rs. 105
to 110 crores per year could be spent, year-afteryear,
perpetually towards compensation and relief to the victims.
the court also took into consideration the general run
of damages in comparable accident claim cases and in cases
under workmens compensation laws. the broad allocations made
are higher than those awarded or awardable in such claims.
these apportionments are merely broad considerations gener-
ally guiding the idea of reasonableness of the overall basis
of settlement. this exercise is not a predetermination of
the quantum of compensation amongst the claimants either
individually or category-wise. no individual claimant shall
be entitled to claim a particular quantum of compensation
even if his case is found to fall within any of the broad
categories indicated above. the determination of the actual
quantum of compensation payable to the claimants has to be
done by the authorities under the act, on the basis of the
facts of each case and without reference to the hypothetical
quantifications made only for purposes of an overall view of
the adequacy of the amount.
140
these are the broad and general assumptions underlying
the concept of 'justness' of the determination of the quan-
tum. if the total number of cases of death or of permanent,
total or partial, disabilities or of what may be called
'catastrophic' injuries is shown to be so large that the
basic assumptions underlying the settlement become wholly
unrelated to the realities, the element of 'justness' of the
determination and of the 'truth' of its factual foundation
would seriously be impaired. the 'justness' of the settle-
ment is based on these assumptions of truth. indeed, there
might be different opinions on the interpretation of laws or
on questions of policy or even on what may be considered
wise or unwise; but when one speaks of justice and truth,
these words mean the same thing to all men whose judgment is
uncommitted. of truth and justice, anatole france said:
"truth passes within herself a penetrating
force unknown alike to error and falsehood. i
say truth and you must understand my meaning.
for the beautiful words truth and justice need
not be defined in order to be understood in
their true sense. they bear within them a
shining beauty and a heavenly light. i firmly
believe in the triumph of truth and justice.
that is what upholds me in times of trial
......"
as to the remaining question, it has been said that many
vital juristic principles of great contemporary relevance to
the third world generally, and to india in particular,
touching problems emerging from the pursuit of such danger-
ous technologies for economic gains by multi-nationals arose
in this case. it is said that this is an instance of lost
opportunity to this apex court to give the law the new
direction on vital issues emerging from the increasing
dimensions of the economic exploitation of developing coun-
tries by economic forces of the rich ones. this case also,
it is said, concerns the legal limits to be envisaged, in
the vital interests of the protection of the constitutional
rights of the citizenry, and of the environment, on the
permissibility of such ultra-hazardous technologies and to
prescribe absolute and deterrent standards of liability if
harm is caused by such enterprises. the prospect of exploi-
tation of cheap labour and of captive-markets, it is said,
induces multi-nationals to enter into the developing coun-
tries for such economic-exploitation and that this was
eminently an appropriate case for a careful assessment of
the legal and constitutional safeguards stemming from these
vital issues of great contemporary relevance.
these issues and certain cognate areas of even wider signif-
icance
141
and the limits of the adjudicative disposition of some of
their aspects are indeed questions of seminal importance.
the culture of modern industrial technologies, which is
sustained on processes of such pernicious potentialities, in
the ultimate analysis, has thrown open vital and fundamental
issues of technology-options. associated problems of the
adequacy of legal protection against such exploitative and
hazardous industrial adventurism, and whether the citizens
of the country are assured the protection of a legal system
which could be said to be adequate in a comprehensive sense
in such contexts arise. these, indeed, are issues of vital
importance and this tragedy, and the conditions that enabled
it happen, are of particular concern.
the chemical pesticide industry is a concomitant, and
indeed, an integral part, of the technology of chemical
farming. some experts think that it is time to return from
the high-risk, resource-intensive, high-input, anti-ecologi-
cal, monopolistic 'hard' technology which feeds, and is fed
on, its self-assertive attribute, to a more human and hu-
mane, flexible, eco-conformable, "soft" technology with its
systemic-wisdom and opportunities for human creativity and
initiative. "wisdom demands" says schumacher" a new orienta-
tion of science and technology towards the organic, the
gentle, the non-violent, the elegant and beautiful". the
other view stressing the spectacular success of agricultural
production in the new era of chemical farming, with high-
yielding strains, points to the break-through achieved by
the green revolution with its effective response to, and
successful management of, the great challenges of feeding
the millions. this technology in agriculture has given a big
impetus to enterprises of chemical fertilizers and pesti-
cides. this, say its critics, has brought in its trail its
own serious problems. the technology-options before scien-
tists and planners have been difficult.
indeed, there is also need to evolve a national policy
to protect national interests from such ultra-hazardous
pursuits of economic gains. jurists, technologists and other
experts in economics, environmentology, futurology, sociolo-
gy and public health etc. should identify areas of common
concern and help in evolving proper criteria which may
receive judicial recognition and legal sanction.
one aspect of this matter was dealt with by this court
in m.c. mehta v. union of india, (supra) which marked a
significant stage in the development of the law. but, at the
hearing there was more than a mere hint in the submissions
of the union carbide that in this case the law was altered
with only the union carbide corporation in mind, and
142
was altered to its disadvantage even before the case had
reached this court. the criticism of the mehta principle,
perhaps, ignores the emerging postulates of tortious liabil-
ity whose principal focus is the social-limits on economic
adventurism. there are certain things that a civilised
society simply cannot permit to be done to its members, even
if they are compensated for their resulting losses. we may
note a passage in "theories of compensation," r.e. goodin:
oxford journal of legal studies, 1989, p. 57.
"it would, however, be wrong to presume that
we as a society can do anything we like to
people, just so long as we compensate them for
their losses. such a proposition would mistake
part of the policy universe for the whole. the
set of policies to which it points--policies
that are 'permissible' but only with compensa-
tion'--is bounded on the one side by a set of
policies that are 'permissible, even without
compensation' and on the other side by a set
of policies that are 'impermissible, even with
compensation'."
but, in the present case, the compulsions of the need
for immediate relief to tens of thousands of suffering
victims could not, in our opinion, wait till these ques-
tions, vital though they be, are resolved in the due course
of judicial proceedings. the tremendous suffering of thou-
sands of persons compelled us to move into the direction of
immediate relief which, we thought, should not be subordi-
nated to the uncertain promises of the law, and when the
assessment of fairness of the amount was based on certain
factors and assumptions not disputed even by the plaintiff.
a few words in conclusion. a settlement has been record-
ed upon material and in circumstances which persuaded the
court that it was a just settlement. this is not to say that
this court will shut out any important material and compel-
ling circumstances which might impose the duty on it to
exercise the powers of review. like all other human institu-
tions, this court is human and fallible. what appears to the
court to be just and reasonable in that particular context
and setting, need not necessarily appear to others in the
same way. which view is right,in the ultimate analysis, is
to be judged by what it does to relieve the undeserved
suffering of thousands of innocent citizens of this country.
as a learned author said: wallace mendelson: supreme court
statecraft--the rule of law and men.
"in this imperfect legal setting we expect
judges to clear
143
their endless dockets, uphold the rule of law,
'and yet not utterly disregard our need for
the discretionary justice of plato's philoso-
 pher king. judges must be sometimes cautious
and sometimes bold. judges must respect both
the traditions of the past and the convenience
of the present........"
but the course of the decisions of courts cannot be reached
or altered or determined by agitational pressures. if a
decision is wrong, the process of correction must be in a
manner recognised by law. here, many persons and social
action groups claim to speak for the victims, quite a few in
different voices. the factual allegations on which they rest
their approach are conflicting in some areas and it becomes
difficult to distinguish truth from false-hood and half-
truth, and to distinguish as to who speaks for whom.
however, all of those who invoke the corrective-process-
es in accordance with law shall be heard and the court will
do what the law and the course of justice requires. the
matter concerns the interests of a large number of victims
of a mass disaster. the court directed the settlement with
the earnest hope that it would do them good and bring them
immediate relief, for, tomorrow might be too late formany
of them. but the case equally concerns the credibility of,
and the public confidence in, the judicial process. if,
owing to the pre-settlement procedures being limited to the
main contestants in the appeal, the benefit of some contrary
or supplemental information or material, having a crucial
bearing on the fundamental assumptions basic to the settle-
ment, have been denied to the court and that, as a result,
serious miscarriage of justice, violating the constitutional
and legal rights of the persons affected, has been occa-
sioned, it will be the endeavour of this court to undo any
such injustice. but that, we reiterate, must be by proce-
dures recognised by law. those who trust this court will not
have cause for despair.
144
petitioner:
rural litigation & entitlement kendra

vs.

respondent:
state of u.p.

date of judgment30/08/1988

bench:
misra rangnath
bench:
misra rangnath
venkatachalliah, m.n. (j)

citation:
1989 air 594 1989 scc supl. (1) 537
jt 1988 (4) 710 1988 scale (2)1574

act:
constitution of india, 1950: article 32 limestone
quarries- dehradun mussoorie belt-public interest litigation
against pollution- high powered committee to be set up to
look after re-afforestation, mining activities and bring
about natural normalcy in the doon valley.
%
 forest (conservation) act 1980: limestone guarries in
doon valley-- continuance of mining activity--
impermissibility of.
public interest litigation: procedure laws apply but
every technicality in procedural laws not available in
matters of grave public importance.

headnote:
a letter-petition, and an application, containing
allegations of unauthorised and illegal mining in the
mussoorie-dehradun belt, affecting adversely the ecology and
environmental order of the area, were directed to be
registrered as writ petitions under public interest
litigation. apart from the governments of the union and of
uttar pradesh, several governmental agencies and mining
lessees appeared in the proceedings. a number of committees
and working groups were set up both by the court and the
central government to look into the various aspects of the
problem, their reports received and several comprehensive
interlocutory directions issued.
one of the committees, referred to as the bhargava
committee, classified the mines into three groups, being a,
b, c. on the basis of the recommendations of the bhargava
committee report and other material the court directed, by
its order dated 12th march, 1985, that category mines of
the bhargava committee report should be closed down
permanently. similar order was made in regard to category
mines situated in the shasradhara block. the court further
directed category mines located within the mussoorie
municipal limits and the remaining b category mines to
submit their mining scheme for scrutiny of the bandyopadhyay
committee. the court, however, allowed category mines
located outside the city limits to operate.
pg no 690
pg no 691
some of the mines which were ordered to be closed down
had earlier been refused renewal of their mining licences.
these mines, however, continued to operate under the orders
of various courts which had granted extension of their
leases pending the final orders of the courts. this court,
in its order dated 12th march, 1985 had therefore, directed
that if any mining lessee of a mine, which had been ordered
to be closed down, was running under the first grant or
under court's orders after its expiry, it would not be
entitled to take advantage of that position.
in its order dated 16th december, 1986 this court
recognised the need to strike a balance between preservation
and utilisation of deposits, and urged the government to
take a policy decision in the matter. the government
thereupon set up another committee to examine the working of
the limestone mining operations in the doon valley. this
committee inspected six mines which were operating. three of
these mines were operating under valid mining leases and the
other three, whose leases had expired in december 1982? were
operating under orders of different courts.
keeping in view the reports of the committee and the
submissions at the bar, the court passed further orders.
on behalf of the lessees it was contended: (1) decision
of this court dated 12th march, 1985 was final in certain
aspects including the release of the a category mines
outside the city limits from the proceedings, and in view of
such finality it is not open to this court in the same
proceedings at a later stage to direct differently in regard
to what has been decided earlier; (2) during the pendency of
these writ petitions, the environment protection act of l986
has come into force and since that statute and the rules
made thereunder provide detailed procedure to deal with the
situations that arise in these cases, this could should no
more deal with the matter and leave it to be looked into by
the authorities under the act, and (3) there would be a
total stalemate in the manufacture of drugs and sugar, as
also steel,in case mining activity is stopped.
disposing of the writ petition, this court,
held: (1) "forest" was initially a state subject covered
by entry 19 in list ii of the seventh schedule. in 1976,
under the 42nd amendment the entry was deleted and entry 17-
a in the concurrent list was lnserted. the change from the
state list to the concurrent list was brought about
pg no 692
following the realisation of the central governmentthat
`forests' were of national importance and should be placed
in the concurrent list to enable the central government to
deal with the matter. the same amendment of the constitution
brought in article 48,a and article 51a(g) is part iva.
[713h; 714a-b]
(2) the forest (conservation) act, 1980 does not permit
mining in the forest area. if mining activity even to a
limited extent is permitted in future, it would be not
congenial to ecology and environment, and the natural calm
and peace which is a special feature of this area in its
normal condition shall not be restored. this tourist zone in
its natural setting would certainly be at its best if its
serenity is restored in the fullest way. [7l0e-f]
(3) by the court's order of 12th march, l985, the a
category mining leases outside the city limits were only
exempted from further scrutiny and not released from the
proceedings. if the court really intended to release the a
category mines outside the city limits, it could very well
pronounce that in clear terms. [706e-h]
(4) the examination by this court when it made the order
of 12th march, 1985, omitted to consider the impact of the
forest (conservation) act, 1980 which was then a statute in
force. if the provision of the conservation act had been
noticed and impact thereof for the continuance of mining
activity bad been considered, perhaps the court would have
made no exemptions and no mining may have been permitted.
[706g]
(5) the writ petitions are not inter-party disputes and
have been raised by way of public interest litigation, and
the controversy before the court is as to whether for safety
and for creating a hazardless environment for the people to
live in, mining in the area should be permitted or stopped.
the court may not be taken to have said that for public
interest litigations, procedural laws do not apply. at the
same time, it has to be remembered that every technicality
in the procedural law is not available as a defence when a
matter of grave public importance is for consideration
before the court. even if it is said that there was a final
order, in a dispute of this type it would be difficult to
entertain the plea of res judicata. leaving the question
open for examination in future would lead to unnecessary
multiplicity of proceedings and would be against the
interest of society. [707b-d]
(6) these writ petitions were filed more than three
years before the environment (protection) act, l986 came
pg no 693
into force. this court appointed several expert commitees,
received their reports and made directions. the several
parties and their counsel have been heard for days together
on different issues during the three and a quarter years of
the pendency of the proceedings. the environment
(protection) act does does purport to- and perhaps could
not--take away the jurisdiction of this court to deal with a
case of this type. in consideration of these facts, there
is no justification to decline the exercise of jurisdiction
at this stage. [707e-g]
(7) ordinarily, the court would not entertain a dispute
for the adjudication of which a special provision has been
made by law but that rule is not attracted in the present
situation in these cases. besides it is a rule of practice
and prudence and not one of jurisdiction. [707h]
(8) the forest (conservation) act, 1980 applies to
renewals as well and even if there was a provision for
renewal in the lease agreement on exercise of lessee's
option,the requirements of l980 act had to be satisfied
before such renewal could be granted. [717g-h]
ambica quarry works v. state of gujarat & ors., [1987]
1 scc 213; state of rajasthan v. hari shankar rajindrapal,
[l965l 3 scr 402 and state of bihar v. banshi ram modi,
[l985] 3 scc 643, referred to.
(9) it is clear from the directions contained in the
order of 12th march, 1985, as also the ratio of the
judgment in the ambica quarry works case, that even if there
has been an order of the court and no challenge is raised
against such order, this court could invoke its jurisdiction
to nullify the direction or order, and if any order,
direction or decree has been passed ignoring the provisions
of the conservation act of 1980 the same would not be
binding. [7l8b-c]
(10) parties have been heard on various aspects. an
order made by this court to nullify the decrees in such
circumstances would not be violative of the principles of
natural justice. [718f]
(11) it any decree or order has already been obtained
from any court relating to renewal of these leases, the
same shall stand vacated, and similarly any appeal or other
proceeding taken to obtain a renewal or against
order/decrees granting renewal shall also become nonest.
[718g-h]
(12) most of these mines are either within reserved
forests or in forest lands as covered by the u.p. amendment
of the forest act. to these areas the forest conservation
pg no 694
act applies and to allow mining ia these areas even under
strictest control as a permanent feature would not only be
violative of the provisions of forest (conservation) act but
would be detrimental to restoration of the forest growth in
a natural way in this area. once the importance of forests
is realised and as a matter of national policy and in the
interests of the community, preservation of forests is
accepted as the goal, nothing which would detract from that
end should be permitted. in such circumstances, mining
activity in this valley must be completely stopped. but such
a situation will be available only after the original leases
of the working mines are over. [726g-h; 727al
(13) the court accepts the position that manufacture of
drugs and sugar, as steel, would be hard-hit if mining
activity in this area is stopped all of a sudden. with the
pressing demand in the market and discovery of useful
limestone deposits in other parts of the country apart from
what has been indicated in the second affidavit of the union
of india, the trade would adjust itself as every economic
activity does. however, the position should be monitored and
the switch-over from the present position to a total ban
should be spread over a period and not be sudden. [727d-e]
(14) in the circumstances, allowing the three on-going
mines to operate for their initial period of lease is the
most appropriate direction that can be given during the
switch over from the present position to one of complete
closing down of mining operation. [730c-h]
(15) there is no dispute that continuance of mining
operations effects environment and ecology adversely and at
the same time creates a prejudicial situation against
conservation of forests. it is, therefore, necessary that
each of these working mines shall have to work with an
undertaking given to the monitoring committee that all care
and attention shall be bestowed to preserve ecological and
environmental balance while carrying on mining operations.
[731d-e]
(16) the court ordered the setting up of the monitoring
committee to look after reafforestation, mining activities
and all other aspects necessary to bring about natural
normalcy in the doon valley. the court also issued
directions regarding the finances, powers and duties of the
monitoring committee. [733e]
(17) the court has no other option but to close down the
mining activity in the broad interests of the community.
this, however, does not mean that the displaced mine owners
pg no 695
should not be provided with alternative occupation. pious
observation or even a direction in that regard may not be
adequate. what is necessary is a time frame functioning if
rehabilitation is to be made effective. it is, therefore,
necessary that a committee should be set up to oversee the
rehabilitation of the displaced mine owners. [732b-c]

judgment:
original jurisdlcion : write petition (civil) nos. 8209
and 8821 of 1983.
(under article 32 of the constitution of india).
m.k. banerjee, solicitor general, m.k. ramamurthy, a.k.
ganguli, a.k. sen, r.k. jain, kapil sibbal, b.d. agarwal,
o.p. rana, f s. nariman, tapas ray, dr. l.m. singhvi,
rajendra sachhar, yogeshwar prasad, g.l. sanghi, w.c.
mahajan, g.a. shah, m.a. krishnamurthy, r.p. srivastava, ms.
a. subhashni, ravi prakash gupta, mrs. shobha dikshit, badri
dass sharma, aruneshwar gupta, lnderbir singh, arun jaitey,
ms. bina gupta, atul tewari, raju ramachandran, m.v.
goswami, s.k. jain, e.c. agarwal, s. atreya, ravi p.
wadhwani, m.g. ramachandran, mrs. rachna gupta, dr. s.r.
srivastava, pramod dayal, rishi kesh, r.b. mehrotra, c.m.
nayar, mrs. m. karanjawala, s.a. syed, p.p. juneja, p.k.
jain, k.n. bhatt, d.n. mishra, ms. lndra makwana, a. subba
rao, harjinder singh, parijat sinha. c.p. lal, shri narain,
s.k. gupta, k.r. namibiar, s.s khanduja, k.k. jain,. d.m.
nargolkar, devi ditta mal-ln-person, a.k. panda, ranjit
kumar, a.k. shrivastava, a.k. jain, a.d. sanger. pramod
dayal, r.s. hedge, k.r. nagaraja, p.k. rao, m.n. shroff.
n.n. keshwani, r.n. keshwani prashant bhushan and mr. nevva
gupta advocates for the appearing parties.
the judgment of the court was delivered by
 ranganath mlsra, j. on july 14, 1983, a letter received
from the rural litigation and entitlement kendera, dehradun,
bearing the date july 2, 1993, was directed to be
registered as a writ petition under article 32 of the
constitution and notice was ordered to the state of uttar
pradesh and the collector of dehradun. allegations of
unauthorised and illegal mining in the mussoorie- dehradun
belt which adversely affected the ecology of the area and
led to environment disorder were made. later on another
application with similar allegations was directed to be
tagged with the earlier one. that is how these two writ
pg no 696
petitions were both in the registry of this court in a very
innocuous manner as public interest litigation. the number
of parties inflated both under the orders of the court and
on application to be added. apart from the governments of
the union and of uttar pradesh, several governmental
agencies and mining lessees appeared in the proceedings.
what initially appeared to be two simple applications for
limited relief got expanded into a comprehensive litigation
requiring appointment of committees, inspection and reports
in them from time to time, serious exercises on the part of
the mine owners before the committees, filing of affidavits
both original and further, and lengthy arguments at the
bar.these also necessitated several comprehensive
interlocutory directions and orders. these two writ
petitions are being disposed of by this common judgment.
on august if, 1983, this court appointed a committee for
inspection of the mines with a view to securing assistance
in the determination as to whether safety standards laid
down in the mines act of 1952 and the rules made thereunder
have been followed and whether there was any danger of land-
side on account of quarrying operations particularly during
the rainy season, and if there was any other hazard to any
individual, cattle or agricultural lands on account of
carrying of the mining operations. at the preliminary stage
this court directed total stopping of blasting operations
which, however, was modified later. the said committee,
referred to as the bhargava committee after its chairman,
classified the mines which it inspected into three groups,
being a, b and c. it took note of the fact that earlier an
expert committee known as the working group had been set up
by the union government which had also inspected these
mines. the bhargava committee was of the view that the c
group mines should be totally stopped; in the a group mines,
quarrying could be carried on after ensuring that there was
no ecological or environmental hazard; and in regard to the
b group mines, the committee opined that those may not be
closed down permanently but the matter should be probed
further.
a three-judge bench of this court by an order dated
march 12, 1985 (l985 3 scr 169) directed closure of the c
category mines as also certain b category mines on permanent
basis and gave directions in regard to further action to be
taken by the bhargava committee. while making the order the
court specifically stated that the reasons for the order
would follow. one of the learned judges constituting the
three-judge bench retired from the court on september 30,
1985, and the said learned judge (a.n. sen, j.) expressed
his views in a short order dated 30th september, 1985. the
pg no 697
working group appointed by the union government was also
headed by the same mr. bhargava and had five other members.
the examination by the two committees appeared to be with
the same object, namely, as to whether the mining was
being properly done and whether such activity should be
carried on in this area. the working group and classified
the mines into two categories being i and ii. they put those
mines which according to them were suitable for continuing
operation under category i and the mines which in their
opinion were unsuitable for further mining under category
ii. an interesting feature in these two reports seems to be
that almost the same lime stone quarries which have been put
by the bhargava committee under category a feature in
category i of the working group. this court in its order of
march 12, 1985, referred to those aspects and pointed out:
"it will thus be seen that both the bhargav committee
and the working group were unanimous in their view that the
lime stone quarries classified in category a by the bhargav
committee report and category i by the working group were
suitable for continuance of mining operations. so far as the
lime stone quarries in category c of the bhargav committee
report are concerned, they were regarded by both the bhargav
committee and the working group as unsuitable for
continuance of mining operations and both were of the view
that they should be closed down. the only difference between
the bhargav committee and the working group was in regard to
lime stone quarries classified in category b."
this court had also appointed an expert committee
consisting of prof. k.s. valdia, mr. hukum singh and mr.
d.n. kaul to enquire and investigate into the question of
disturbance of ecology and pollution and affectation of air,
water and environment by reason of quarring operations or
stone crushers and setting up of lime stone kilns. mr. kaul
and mr. hukum singh submitted a joint report with reference
to various aspects indicated in their order of appointment
while prof. valdia submitted a separate report. in the order
of march 12. 1985, this count took note of the position
that prof. valdia's report was confined largely to the
geological aspect and considerable reliance on the main
boundary thrust (mbt) had been placed by him in making of
the report and he had taken the view that the lime stone
quarries which were dangerously close to the mbt should be
closed down in such as that was a sensitive and vulnerable
belt. this court then took the view that not much
pg no 698
importance could be placed to dr. valdia's report for this
litigation. the joint report submitted by mr. kaul and mr.
hukum singh had been taken into account by this court in
makinginterim directions and for the making of the final
order no specific reference is called for.
in the order of march 12, 1985, this court directed that
the c category mines of the bhargav committee report should
be closed down permanently and if any mining lessee of such
a mine was running under the first grant or under court's
orders after its expiry, it would not be entitled to take
advantage of the position. similar order was made in regard
to the b category mines situated in the shasradhara block.
this court directed a category mineslocated within the
mussoorie municipal limits and the remaining b category
mines to submit schemes subjected to further enquiry and
ordered:
"we accordingly appoint a high powered committee
consisting of mr. d. bandyopadhyay, secretary, ministry of
rural development as chairman, and shri h.s. ahuja, director
general, mines safety, dhanbad, bihar, shri d.n. bhargav,
controller general, indian bureau of mines, new secretariat
building, nagpur and two experts to be nominated by the
department of environment. government of india within four
weeks from the date of this order. the lessees of the lime
stone quarries classified as category a in bhargav committee
report and for category p in the working group report and
falling within the city limits of mussoorie as also the
lessees of the lime stone quarries classified as category b
in the bhargav committee scheme for mining their lime stone
quarries to this committee (hereinafter called the
bandyopadhyay committee) and if any such scheme or schemes
are submitted the bandyopadhyay committee will proceed to
examine the same without any unnecessary delay and submit a
report to this court whether in its opinion the particular
lime stone quarry can be allowed to be operated in
accordance with the scheme and if so, subject to what
conditions and if it cannot be allowed to be operated, the
reasons for taking that view. the bandyopadhyay committee in
making its report will take into account the various aspects
which we had directed the bhargav committee and the kaul
committee to consider while making their reports including
pg no 699
the circumstances that the particular lime stone quarry may
or may not be within the city limits of mussoorie and also
give an opportunity to the concerned lessee to be heard,
even though it be briefly. "
several mining lessees submitted their schemes which
were examined by the committee but none of them was cleared.
objections against rejection of the schemes had been filed
before this court by many of the aggrieved lessees. it was
directed in the aforesaid order of 12th march, 1985, that
until the bandyopadhyay committee cleared the particular
mines for operation, mining activity in regard to all mines
covered within the purview of examination by that committee
would stop. this court, however, allowed a category mines
located outside the city limits to operate. while directing
closure of the shasradhara area b category mines and all the
c category mines, as also a and b category mines within the
municipal limits this court made it clear that the ban
indicated by it would supersede any order of any other
court. the court observed:
"the consequence of this order made by us would be that
the lessees of lime stone quarries which have been directed
to be closed down permanently under this order or which may
be directed to be closed down permanently after
consideration of the report of the bandyopadhyay).
committee, would be thrown out of business in which they
have invested large sums of money and expanded considerable
time and effort. this would undoubtedly cause hardship to
them but it is a price that has to be paid for protecting
and safeguarding the right of the people to live in healthy
environment with minimal disturbance of ecological balance
and without avoidable hazard to them and to their cattle,
homes and agricultural land and undue affectation of air,
water and environment. "
the order of 12th march, 1985, did not refer to the
forest (conservation) act of 1980 when it permitted the a
category lime stone quarries located outside the city limits
to operate.
this court made several orders relating to specific
aspects after the order of 12th march, 1985. one such order
was made on 30th may, 1985, (1985 (3) scc 614), another on
'18th december, 1986, (1986 suppl. scc 517) where reasons
for the order of 12th march, 1985, given, and yet another
order was made on 19th october, 1987 (air 1987 sc 2426). we
pg no 700
shall refer to the last of these orders in a later part of
this judgment. in the order of 16th december, 1986, when the
reasonings for the order dated 12th march, 1985 were given,
this court had stated:
"it is for the government and the nation-and not for the
court to-decide whether the deposits should be exploited at
the cost of ecology and environmental consideration or the
industrial requirement should be otherwise satisfied. it may
be perhaps possible to exercise greater control and vigil
over the operation and strike a balance between preservation
and utilisation; that would indeed be a matter for an expert
body to examine and on the basis of appropriate advice,
government should take a policy decision and firmly
implement the same."
the court had also indicated in its earlier order that
it should be ensured that the low grade cilica content lime
stone is specifically utilised only in special industries
having regard to its quality and should not be wasted by
being utilised for purposes for which this special grade
lime stone is not required.
keeping these aspects in view, the government of india
in the ministry of environment and forests, department of
environment, forests and wildlife, constituted a committee
to examine the working of the lime stone mining operations
in the doon valley by its memorandum no. j-20012/48/86-1a,
dated 30th of december, 1986, which was also called the
working group. shri d.n. bhargava was nominated as chairman
and the committee had three other members, namely, shri v.c.
verma, director general, mines safety, dhanbad; prof. b.d.
dhar, department of mining engineering of the banaras hindu
university, varanasi; and shri r. mehta, principal
scientific officer, department of environment, forest and
wildlife, new delhi. shri verma was substituted by shri n.
mishra, deputy director general, northern zone. the terms of
reference of the committee were:
(i) whether the operations are being carried out on
scientific lines?
(ii) whether the limestone quarried is being supplied to
end-users as stipulated by the supreme court; and
(iii) the extent to which the mining operations are
contributing to environmental damage?
pg no 701
this committee visited the six mines which are operating
and indicated:
"the limestone deposits of dehradun-mussoorie area are
highly valuable mineral resource now essentially required by
the steel industry and it would be necessary to exploit
them, of course, in a very planned and systematic manner.'
the committee addressed itself to two aspects, namely,-
(i) those which were considered suitable for mining
operations, and
(ii) those which were considered unsuitable for further
mining.
the committee whose entire report has been made
available to us came to the following conclusions in regard
to each of the six operating mines.
(i) lambidhar limestone mine of m/s uttar pradesh state
mineral development corporation ltd. (upsmdc) is a state
undertaking and holds a mining lease of 97 hectares covering
the lambidhar hills and the lease is valid up to. 10th
march, 1996. the committee found that 36% of its production
was supplied to steel and chemical industries, 12% to sugar,
6% to cement and other miscellaneous industries and 46% to
chips and lime kilns industries and disapproved this
position. it further found that while colour limestone which
is a metamarphose is being recorded as a minor mineral
whereas it was learnt that it was being used for despatch as
major mineral. the arrangement for classification of the
lime stone also was not acceptable to the committee. it
further found:
"the hill slopes and the river/nallah base are covered
by scree generated both during road construction as well as
subsequent mining operations. this is the result of allowing
the excavatedmaterial to roll down the slopes. the
committee is of the opinion that road making may be done
with front-end loader instead of bulldozer as with latter
equipment excavated materials roll down the hill slope
uncontrolably. the vegetation cover along the slopes has
been damaged by the rolling material as well as the
pg no 702
excavation made for the road making and the hills present an
ugly look. hydro-seeding may be done to improve looks of
hill slopes. deposition of debris/scree in the nullahs
specially in betarli is the cause of concern because it
happens to be one of the main steams which is source-of
water supply to the villages as well as dehradun city. the
approach road has reached the top and mining operations have
been started but not work on reclamation of mined out area
has yet commenced. a proper disposal yard for stocking
debris must be provided so that the present practice of
disposing it near the camp office on the bank of the violet
is prevented. details of arrangements for controlling dust
both in mining and crushing operations are not available."
upsmdc is the largest of the working mines and apart from
the fact that it belongs to the government of uttar pradesh,
it has also the largest of investment. it has been claimed
before us on its behalf that it operates most scientifically
and satisfies all the requirements appropriate for
ecological and environmental safeguards. the report of the
committee, extracted above, negatives all these claims.
(ii) we shall now refer to m/s punjab lime and limestone
company which has two mines both of which are working. lease
no. 14 covers 44.5 hectares and is a lease for 20 years from
1966; as such it has already expired. lease no. 96 is for
28.92 hectares and would expire in december, 1989. lease no.
14 had two areas and this court disallowed mining in the
northern block. the committee found that 16.4 hectares equal
to 41 acres, out of lease no. 96 comprised of thick forest
and the lessee had surrendered the forest area. the mining
operation is being carried on in lease no. 14 under orders
of the court and the residual portion of lease no. 96. the
committee found that the scheme which had been offered to
the bandyopadhyay committee was in regard to the mining in
the northern block of lease no. 14 which has since been
abandoned. it further transpires that about 27% of its
output during 1986 was supplied for the steel industry. the
report indicates that there is little generation of scree.
as there is sparse growth of trees in the area covered by
the mines, no significant deforestation is involved.
disposal of overburden is not significant check dams have
been set up in the lower reaches which are on the right bank
of bhitarli river and no significant fall of the scree into
the river was apprehended:
(iii) next is lease no. 72 of shri r.k. oberai which
would expire on 10th of april, 1994. it has an area of 15.92
pg no 703
hectares. the committee found that this mine lies in the
upper reaches of the song river. thick forest growth is seen
close to the mine and the committee gathered that the forest
authorities have declined permission to extend the mine
workings beyond rl 1280. the committee found that the lessee
has undertaken to carry out afforestation and has also
started compensatory forestory in the adjacent areas. there
was no apprehension of spreading of scree and future mining
operations are not likely to involve any significant
deforestation. the committee also has opined that there is
no apprehension of choking of the water-ways due to mining
operations as the song river flows about 400 mts. away.
apart from these three mines which are operating under
valid mining leases, the committee inspected the mines
corresponding to iease nos. 16, 17 and 76, belonging to ved
pal singh chaudhary, seth ram avtar and shri c.g. gujral
respectively. all these leases have expired in december,
1982, and under orders of different courts mining is being
carried on.
bhitarli kalan limestone mines of shri ved pal singh
chaudhary was a lease for 38.8 hectares and expired on 29th
december, 1982. this court has already directed closure of
mining operation in a small area on the left bank of
bhitarli river.
seth ram avtar has a lease of 14. 18 hectares on the
left bank of bhitarli river and the lease expired on 2nd
december, 1982. the committee found that he had no
environment management plan. the working plan submitted by
the iessee did not show any plantation area.
the last of the working mines which the committee
visited is that of shri c.g. gujaral. the iease was for
24.16 hectares and expired on 17th december, 1983. the
committee found that the iease area contained very good
forest. the rolling of scree/debris along the slopes had
left not only ugly scars but also resulted in destruction of
the green cover. the debris flow has also choked the sansaru
nullah which once used to be a perennial stream. there was
no environmental management plan. in fact the committee came
to the conclusion that the working of this mine was not
conducive to the environmental conservation.
we have in another part of this judgment indicated our
conclusion that mining activity as a whole should be stopped
in the doon valley but for the reasons indicated therein, we
have also come to the conclusion that the three mining
pg no 704
lessees who have been operating under valid lease may be
permitted to work subject to such conditions as have been
indicated. keeping the report of the working group in view
and for the reasons we have elsewhere indicated, we direct
that mining operations in lease nos. 16, 17 and 76 where the
respective leases have expired and mining operation is being
carried on under court's orders, shall stop and the several
orders of the courts enabling mining activity shall stand
superseded.
this court in its order dated 19th of october, 1987,
(air 1987 sc 2426) came to the clear conclusion:
"we are of the view that the stone quarrying in the doon
valley area should generally be stopped and reasons therefor
we shall provide in due course."
in another part of this judgment, reasons in support of
that conclusion have been provided. the direction to close
down the three operating mines where the period of lease has
expired is to bring the position in accord with that
conclusion.
one of the submissions advanced at the bar is that the
decision of this court dated 12th march, 1985, was final in
certain aspects including the release of the a category
mines outsidethe city limits of mussoorie from the
proceedings and in view of such finality it is not open to
this court in the same proceedings at 3 latter stage to
direct differently in regard to what has been decided
earlier. connected with this submission is the contention
that during the pendency of these writ petitions, the
environmental (protection) act of 1986 has come into force
and since that statute and the rules made: thereunder
provide detailed procedure to deal with the situations that
arise in these cases, this court should no more deal with
the matter and leave it to be looked into by the authorities
under the act. counsel have relied upon what was stated by
this court while giving reasons in support of the order of
march 12, 1985, namely, "it is for the government and the
nation-and not for the court-to decide whether the deposits
should be exploited at the cost of ecology and environmental
considerations." in the order of 12th march, 1985, this
court had pointed out:
"so far as the lime stone quarries classified as
category). a in the bhargav committee report and/or category
1 in the working group report are concerned, we would divide
them into two classes, one class consisting of those lime
pg no 705
stone quarries which are within the city limits of mussoorie
and the other consisting of those which are outside the city
limits. we take the view that the lime stone quarries
falling within category a of the bhargav committee report
and/or category 1 of the working group report and falling
outside the city limits of mussoorie, should be allowed to
the operated subject, of course, to the observance of the
requirements of the mines act, 1952, the metalliferous mines
regulations, 1961 and other relevant statutes, rules and
regulations. of course when we say this, we must make it
clear that we are not holding that if the leases in respect
of these lime stone quarries have expired and suits or writ
petitions for renewal of the leases are pending in the
courts, such leases should be automatically renewed. it will
be for the appropriate courts to decide whether such leases
should be renewed or not having regard to the law and facts
of each case. so, far as the lime stone quarries classified
in category a in the bhargav committee report and category 1
in the working group report and falling within the city
limits of mussoorie are concerned, we would give the same
direction which we are giving in the next succeeding
paragraph in regard to the lime stone quarries classified as
category b in the bhargav committee report."
the argument that a category mines outside the city
limits had been cleared is based upon what has been
indicated above. dealing with this of the direction, this
court in its order of 19th october, 1987, stated :
consciousness regarding environmental upkeep is of
recent origin. cognizance of ecological importance has
entered into governmental activity only in this decade.
everyday that consciousness as also the sense of social
obligation in this regard are on the increase. it has been
pointed out to us in course of hearing of the objections
that the classification of the a category iime stone
quarries on the basis of their location-within the municipal
limits and outside--was indeed not a real one. we have been
shown and it seems to be factually true that some of the
lime stone quarries said to be outside the city limits are
closer to the heart of the city of mussoorie that others
located within the city limits. if the real purpose of the
order made by this court was not to permit mining within the
pg no 706
city limits without further scrutiny as in the case of b
category stone quarries, we really do not see any
justification as to why these stone quarries located outside
the city limits but close to the heart of the city should
not have been subjected to such scrutiny. since the writ
petitions have not been finally disposed of and the order
made in regard to the a category quarries located outside
the city limits by the judgment referred to above only
exempted them from further scrutiny as was directed in
respect of the other quarries, we see no impediment in the
matter of giving a re-look at the matter even with reference
to the a category quarries located outside the city limits.
in this connection it is relevant to take note of the
fact that the state government has already formed an
improvement programme of the area by constituting a combined
body for mussoorie and dehradun. the considerations which
had weighed with the court on the basis of municipal limits
has indeed to be extended not to the entire area covered by
the new scheme. we are, therefore of the view that the a
category stone quarries in this area irrespectlve of
location within or outside city limits should be subjected
to further order of this court and there is no legal
impediment for this court to do the same."
we reiterate our opinion that by the order of 12th march,
1985, the a category mining leases outside the city iimits
were only exempted from further scrutiny and not released
from the proceedings. our order of 18th december, 1986, left
certain aspects to be considered by the state and
immediately the central government responded by appointing
the second working group. we would like to reiterate what we
have already said in the order of 19th of october, 1987,
that the examination by this court when it made the order of
12th march, 1985, omitted to consider the impact of the
forest (conservation) act of 1980 which was then a statute
in force. if the provisions of the conservation act had been
noticed and impact thereof for the continuance of mining
activity had been considered, perhaps the court would have
made no exemptions and no mining may have been permitted.
besides, if the court really intended to release the a
category mines outside the city limits, it could very well
pronounce that in clear terms.
pg no 707
in view of what we have indicated above, it is difficult
to accept the stand taken by some of the lessees and by mr.
nariman appearing for the intervener that a final order has
been by this court in regard to the a category mines outside
the city limits of mussoorie.
the writ petitions before us are not inter-party
disputes and have been raised by way of public interest
litigation and the controversy before the court is as to
whether the social safety and for creating a hazardfess
environment for the people to live in, mining in the area
should be permitted or stopped. we may not be taken to have
said that for public interest litigations, procedural laws
do not apply. at the same time it has to be remembered that
every technicality in the procedural law is not available as
a defence when a matter of grave public importance is for
consideration before the court. even if it is said that
there was a final order, in a dispute of this type it would
be difficult to entertain the plea of res judicata. as we
have already pointed out when the order of 12th6 march,
1985, was made, no reference to the forest (conservation)
act of 1980 had been done. we are of the view that leaving
the question open for examination in future would lead to
unnecessary multiplicity of proceedings and would be against
the interests of society. it is mete and proper as also in
the interest of the parties that the entire question is
taken into account at this stage.
undoubtedly, the environment (protection) act, 1986 (29
of 1986) has come into force with effect from 19th november,
1986. under this act power is vested in the central
government to take measures to protect and improve the
environment. these writ petitions were filed as early as
1983-more than three years before the act came into force.
this court appointed several expert committees, received
their reports and on the basis of materials placed before
it, made directions, partly final and partly interlocutory,
in regard to certain mines in the area. several directions
from time to time have been made by this court. as many as
four reportable orders have been given. the several parties
and their counsel have been heard for days together on
different issues during the three and a quarter years of the
pendency of the proceedings. the act does not purport to-
and perhaps could not-take away the jurisdiction of this
court to deal with a case of this type. in consideration of
these facts, we do not think there is any justification to
decline the exercise of jurisdiction at this stage.
ordinarily the court would not entertain a dispute for the
adjudication of which a special provision has been made by
law but that rule is not attracted in the present situation
in these cases. besides it is a rule of practice and
prudence and not one of jurisdiction. the contention against
pg no 708
exercise of jurisdiction advanced by mr. nariman for the
intervener and reiterated by some of the lessees before this
court must stand overruled.
we shall now briefly indicate reasons in support of our
conclusion mentioned in the order of october 19, 1987, that
mining in this area should be stopped.
kalidas, the greatest of the indian poets, sang the
praises of the himalayas in 'meghadoot' by describing it as
the loftiest mountain on earth surface located on the north
of the country. the himalayan ranges apart from operating as
a natural seal on the northern border against intruders,
have influenced the climate, culture, ecology and
environment of the sub continent. these are the ranges from
where originate several perennial rivers like the ganges and
the yamuna. these two rivers which mingle at allahabad and
later flow into the bay of bengal as one river have built up
what is known as the gangetic belt-the most fertile part of
lndia. the lcgendary tradition of our culture is deeply
associated with these two rivers. apart from providing
succour to millions of people who inhabit this belt. yamuna
is said to have provided the backdrop of krishna leela. the
catchment area of this river is spread over the mussoorie
hills-otherwise known as the doon valley with which we are
concerned. before a quarter of a century, yamuna was having
adequate water flow through-out the year. unlike the ganges
which has her main tributaries originating from the snow-
clad regions of the mountain range and melting snow in
summer helping the tributaries to be perennial, the yamuna
used to receive the bulk of her water from the streams
joining her in the lower regions. the doon valley used to
receive sumptuous rains during the season; the tree roots
helped the water to be stored; the lime stone mines operated
as aquifers. the stored water was released in a continuous
process and that streams even without the support of
melting snow, provided perennial supply tothe yamuna.
assured of such supply, the twin cities of mussoorie and
dehradun grew up. lower down, hundreds of villages and small
towns had also sprung up.
lime stone mining operations in the doon valley became
wide-spread during the decade between 1955 and 1965 and many
of the leases were granted in 1962. in the decade after
1965. the depredation, of mining began to be felt. peace and
tranquillity of the valley was gone. trees were felled at
random and lush green forests disappeared. blasting affected
and shook up the hills. rocks and scree rolled down and
killed or injured the cattle, damaged the cultivable lands
and adversely affected the villagers. the natural beauty of
pg no 709
the queen of the hill stations was no more to be seen. with
the felling of the forests, rains became less, with the
trees gone and the lime stone dug out, the aquifers ceased
to exist. the streams got blocked by scree and stones and
the flow of water was substantially reduced. tourist traffic
was adversely affected. irrigation was no more possible. the
tributaries no longer fed the yamuna sufficiently. dehradun
experienced scarcity of even drinking water. these led to
the despatch of the letter in july, 1983 to this court.
the doon valley lime stone deposits are a gift of nature
to mankind. underneath the soil cover there is an unseen
store house of bountry almost everywhere. similarly forests
provide the green belt and are a bequest of the past
generations to the present. lime stone deposits if excavated
and utilised get exhausted while if forests are exploited,
there can be regeneration provided reafforestation is
undertaken. trees, however, take time to grow and ordinarily
a 15 to 25 year period is necessary for such purpose.
we have already indicated that several expert committees
appointed by this court have opined generally against
continuing the mining activity in the valley. the second
working group found in as late as 1987 that limited mining
in the on-going mines was not congenial to ecological and
environmental discipline. this court by its order on october
19, 1987, (alr 1987 sc 2426) called the union of india:
"..... to place before the court on affidavit the
minimum total requirement of this grade of lime stone for
manufacture of quality steel and defence armaments. the
affidavit should also specify as to how much of high grade
ore is being imported into the country and as to whether
other indigenous sources are available to meet such
requirement. this court would also require an affidavit from
responsible authorities of the union of lndia as to whether
keeping the principles of ecology, environmental protection
and safeguards and anti-pollution measures, it is in the
interest of the society that the requirements should be met
by import or by taking other alternate indigenous sources or
mining activity in this area should be permitted to a
limited extent. the court expects the union of lndia to
balance these two aspects and place on record its stand not
as a party to the litigation but as a protector of the
pg no 710
environment in discharge of its statutory and social
obligation for the purpose of consideration of the court . .
the two affidavits filed on behalf of the union of india
have been dealt with elsewhere in the judgment and it would
be sufficient for the instant aspect to extract from the
affidavit of mr. seshan, secretary to the government in the
ministry of environment and forests, where he has stated :
"5.1 union of india submits that from the point of view
of protection of the environment in the unique doon valley,
it would be desirable that lime stone mining operations in
the valley are stopped completely."
nariman questioned the value of this statement in view
of the indication in the affidavit that it was the
department's submission to the court. we do not think that
the ministry secretary's affidavit can be brushed aside that
way. read in the background of the directions in the order
of 19th october, 1987, and in the sequence of the first
affidavit not having been accepted by the court as
compliance, we must assume that mr. seshan has disclosed the
stand of the union of india with full authority and with the
intention of binding the union of india by his statement.
we are separately dealing with the forest (conservation)
act and its bearing and effect on this aspect. it is
sufficient to note that the act does not permit mining in
the forest area. we are also satisfied that if mining
activity even to a limited extent is permitted in future, it
would be not congenial to ecology and environment and the
natural calm and peace which is a special feature of this
area in its normal condition shall not be restored. this
tourist zone in its natural setting would certainly be at
its best if its serenity is restored in the fullest way. we
are of the considered opinion that mining activity in this
valley must be completely stopped but as indicated in
another part of this judgment such a situation will be
available only after the original leases of the working
mines are over.
it is time to turn to the contention relating to
forests. air and water are the most indispensable gifts of
nature for preservation of life. abundant sun-shine together
with adequate rain keeps nature's generating force at work.
human habitations all through the ages have thrived on river
banks and in close proximity of water sources. forests have
natural growth of herbs which provide cure for diseases.
pg no 711
our ancestors knew that trees were friends of mankind and
forests were necessary for human existence and civilization
to thrive. it is these forests that provided shelter for the
'rishies ' and accommodated the ancient 'gurukulas'. they
too provided food and sport for our forefathers living in
the state of nature. that is why there is copious reference
to forests in the vedas and the ancient literature of ours.
in ancient times trees were worshiped as gods and prayers
for up-keep of forests were offered to the divine. in the
artharva veda (5.30.6) it has been said:
"man's paradise is on earth;
this living world is the beloved place of all ;
it has the blessings of nature's bounties ;
live in a lovely spirit."
in due course civilization developed and men came to
live away from forests. yet the human community depended
fieavily upon the forests which caused rains and provided
timber, fruits, herbs and sports. with sufficient sun-shine
and water there was luxuriant growth of forests in the
tropical and semi-tropical zones all over the globe. then
came the age of science and outburst of human population.
man requiredmore of space for living as also for
cultivation as well as more of timber. in that pursuit the
forests were cleared and exploitation was arbitrary and
excessive; the deep forests were depleted; consequently
rainfall got reduced; soil erosion took place. the earth
crust was washed away and places like cherapunji in assam
which used to receive an average annual rainfall of 500
inches suffered occasional drought.
scientists came to realise that forests play a vital
role in maintaining the balance of the ecological system.
they came to know that forests preserve the soil and heavy
humus acts as a porous reservoir for retaining water and
gradually releasing it in a sustained flow. the trees in the
forests draw water from the bowls of the earth and release
the same into the atmosphere by the process of transpiration
and the same is received back by way of rain as a result of
condensation of clouds formed out of the atmospheric
moisture. forests thus help the cycle to be completed. trees
are responsible to purify the air by releasing oxygen into
the atmosphere through the process of photosynthesis. it
has, therefore, been rightly said that there is a balance on
earth between air, water, soil and plant. forests hold up
the mountains, cushion the rains and they discipline the
rivers and control the floods. they sustain the springs;
they break the winds; they foster the bulks; they
pg no 712
keep the air cool and clean. forests also prevent erosion by
wind and water and preserve the carpet of the soil.
in the second half of the 19th century felling of trees
came to be regulated. in 1858, the department of forestry
was set up and in 1864 the first inspector general of
forests was appointed. in the following year the first
indian forest act came into the statute book to be followed
by another act in 1878 and yet another in 1927 which is
still in force providing measures of regulation. this act
has been amended in the various states and presently
reference shall be made to the relevant amendments in uttar
pradesh.
laying the railway track and providing sleepers therefor
required clearing of forest areas and cutting down of trees.
during the second world war indian forests were very badly
mauled for various defence purposes. by the time india
became independent it had about 2 per cent of the earth's
land area, 1 per cent of productive forest area 15 per cent
of world's population and 10 per cent of world's animal
life-a situation indicative of the fact that there was acute
deficit of forest area. the government of lndia declared its
national forest policy in 1452 which laid down that forests
should occupy 33 per cent of the land surface as against 23
per cent then attention was intended to the bestowed for
expansion of forests in each of the five-year plans that
followed with a view to rehabilitating the forests. the
demand occasioned by the growing population and the spread
of economic development and consequent demand of timber as
raw material as also feul led a excessive exploitation of
the forests and consequent clearing of forest areas
notwithstanding the declared of national forest policy.
it is interesting to note that the national per capita
average of forest area works out to 0. 11 hectare as against
an international average of 1.5 hectare. state-wise,
arunachal pradesh has per capita forest of 8.2.1 hectares
which is the maximum and haryana has the minimum being 0.01
hectare (figures based on census report of 1981 and the
report of the central forestry commission). while some of
the advanced countries like australia, canada, germany,
japan and united states have forest cover of higher area,
on account of want of regulation and appropriate care and
attention, this unhappy situation has arisen in india.
the birla institute of scientific research in its report
on social forestry in india: problems and prospects [1986]
has indicated:
pg no 713
`the treeless expense of land provides an environment
least conductive to healthy living. tree leaves recharge the
atmosphere with life giving oxygen, take away excess
carbondioxide and transmit moisture to the atmosphere by way
of transpiration. it is estimated that one hectare of
woodland consumes 3.7 tonnes of carbondioxide and gives out
2 tonnes of oxygen per year. denied these beneficial
processes, life becomes lead heavy. a tree-covered
environment is much healthier to live and work in. amongst
the immediately perceptible effects of loss of vegetative
protection are soil erosion, floods and droughts. if trees
and other vegetations are present, they bear the burnt of
winds, heat, cold and rain water, first in their crowns and
foliage. the soil remains covered by humus, decomposing
litter and freshly fallen leaves which protect it from
direct action of the adverse natural forces. in a wooded
area the flow of rain water gets regulated through the
ieaves and the spongy material overlying the soil; but in a
barren, unprotected surface the rain drops hit the soil
directly and the water flows torrentially, dislodging and
carrying with it the soil participles which have taken
hundreds of years to form. this results in disastrous floods
in lower areas causing damage to life and property. fast
running water also causes landslides and other calamities en
route. with all the rain water having run away in the form
of floods the land surface losses its resiliance to drier
spells and severe droughts are caused. the removal of soil
by water produces fertility and the productive capacity of
the up-lands to a considerable degree.
it is estimated that nearly 6,000 million tonnes of soil
is washed away every year in floods. with that go 6.0
million tonnes of nutrients-more than the amount that is
applied in the form of fertilisers."
we shall now deal with legislative measures to preserve
the forests and impact of such provisions on mining after
briefly referring to the legislative power in regard to
forests.
"forest" was initially a state subject covered by entry
19 in list ii of the seventh schedule: in 1976, under the
42nd amendment the entry was deleted and entry 17-a in the
concurrent list was inserted. the change from the state list
to the concurrent list was brought about following the
pg no 714
reallsation of the central government that forests were of
national importance and should be placed in the concurrent
list to enable the central government to deal with the
matter. the same amendment of the constitution brought in
article 48-a in part iv providing thus:
"the state shall endeavour to protect and improve the
environment and to safeguard the forests and wild life of
the country."
article 51-a in part iv-a of the constitution inserted
by the same amendment provided a set of fundamental duties
and clause (g) runs thus:
"it shall be the duty of every citizen of india-
(g) to protect and improve the natural environment
including forests, lakes, rivers and wild life and to have
compassion for living creatures."
1972 marks a watershed in the history of environmental
management so far as india is concerned. the national
committee of environment and planning and coordination was
set up and various steps were taken to implement the
recommendations already made and to be made: thereafter. the
national commission on agricultural in 1976 noticed the
inadequate implementation of the 1953 national forest policy
and proposed the following amendments:
(i) provision for prior approval of the central
government before taking steps for dereservation or
diversion of forest lands to non-forest use.
(ii) preventing and evicting encroachment of forest
lands.
(iii) safeguarding against monoculture practices in
raising forest plantations so that preservation of habitats
for natural flora and fauna is ensured.
(iv) encouraging large scale industrial plantation to
foster growth of forest industries.
pg no 715
the problem of forest preservation and protection was no
more to be separated from the life style of tribals. the
approach required a shift from the dependence on law and
executive implementation to dependence on the conscious and
voluntary participation of the masses. this required
educating the masses as well as appropriate education of the
departmental employees. in this background the forest
(conservation) act of 1980 was enacted with which we propose
presently to deal after noticing certain provisions of the
indian forest act of 1927.
the forest act of 1927 deals with four categories of
forests, namely-
1. reserved forests in chapter ii
2. village forests in chapter 111
3. protected forests in chapter iv
4. non-government forests in chapter v.
the first three categories deal with forests which are
government property while the last refers to control over
forests and lands which are not government property. most of
the private forests covered under the fourth category were
earlier parts of estates which have now been abolished and
thus such forests have also become government property. in
uttar pradesh there have been several amendments of the
forest act and chapter v-a has been incorporated which
provides for control over forests of claimants. detailed
procedure has been laid in chapter ii in respect of reserved
forests. section 3 vests power in the state government to
reserve forests. the process for reservation of forests
starts with section 4 and ends up with the final declaration
under section 20. section 27 vests power in the state
government to declare a forest to be no longer reserved.
as noticed earlier, notwithstanding the regulatory
provisions in the forest act of 1927 and the government's
national forest policy of 1952, forests generally got
rapidly depleted. to meet this alarming situation the forest
(conservation) ordinance of 1980 was promulgated by the
president and the ordinance was followed by the forest
(conservation) act of 1980. the statement of objects and
reasons, as far as relevant, point out:
pg no 716
"deforestation causes ecological imbalance and leads to
environmental deterioration. deforestation had been taking
place on a large scale in the country and it had caused
widespread concern.
with a view to checking further deforestation the
president promulgated on the 25th october, 1980, the forest
(conservation) ordinance, 1980. the ordinance made the prior
approval of the central government necessary for
dereservation of forests and for use of forest land for non-
forest purposes. the ordinance also provided for the
constitution of an advisory committee to advice the central
government with regard to grant of such approval."
section 2 of the act which is relevant provides:
"notwithstanding anything contained in any other law for
the time being in force in a state, no state government or
other authority shall make, except with the prior approval
of the central government. any order directing-
(i) that any reserved forest (within the meaning of the
expression reserved forest) in any law for the time being in
force in that state or any portion thereof, shall cease to
be reserved ;
(ii) that any forest land or any portion thereof may be
used for any non-forest purpose.
explanation- for the purposes of this section non-forest
purpose means breaking up or clearing of any forest land or
portion thereof for any purpose other than reafforestation."
thus the power which was vested in the state government
under section 27 of the indian forest act of 1927 or any
other law containing a similar provision is now exercisable
subject to prior approval of the a central government.
this court dealt with the provisions of the 1980 act in
the case of ambica quarry works v. state of gujarat and
ors., [1987] 1 scc 213. the question of renewal of mining
leases in gujarat came for consideration in this case before
pg no 717
the court. at page 219 of the reports, it was stated:
"the rules dealt with a situation prior to the coming
into operation of 1980 act. '1980 act' was an act in
recognition of the awareness that deforestation and
ecological imbalances as a result of deforestation have
become social menaces and further deforestation and
ecological imbalances should be prevented. that was the
primary purpose writ large in the act of 1980. therefore,
the concept that power coupled with the duty enjoined upon
the respondents to renew the lease stands eroded by the
mandate of the legislation as manifest in 1980 act in the
facts and circumstances of these cases. the primary duty was
to the community and that duty took precedence, in our
opinion, in these cases. the obligation to the societymust
predominate over the obligation to the individuals."
again in paragraph 19, this court observed:
"in the instant appeals the situation is entirely
different. the appellants are asking for a renewal of the
quarry leases. it will lead to further deforestation or at
least it will not help reclaiming back theareas where
deforestations have taken place. in that view of the matter,
in the facts and circumstances of the case, in our opinion,
the ratio of the said decision state of bihar v. banshi ram
modi, [ 1985] 3 scc 643 cannot be made applicable to support
the appellants' demands in these cases because the facts are
entirely different here. the primary purpose of the act
which must subserve the interpretation in order to implement
the act is to prevent further deforestation. the central
government has not granted approval. ......"
the ratio of the decision of this court in stare of
rajasthan v. hari shankar rajindra pal, [l965] 3 scr 402
has obviously no application to the facts of this case. in
banshi ram modi' case (supra) what was being considered was
extension of the leases for another mineral which was found
while exploitation, under the existing mining lease was
undertaken. we agree with the view expressed by brother
mukharji that the conservation act of 1980 applies to
renewal as well and even if there was a provision for
renewal in the lease agreement on exercise of lessee's
option, the requirements of 1980 act had to be satisfied
before such renewal could be granted.
many of these leases, as already indicated by us,
expired in 1982. renewal had been applied for and in many of
pg no 718
these cases the request for renewal was rejected. on the
plea that the state had no right to reject the request for
first renewal, the aggrieved lessees went before different
courts and obtained decrees or interim orders. we have
already pointed out that in the order of 12th march, 1985,
this court vacated such orders or decrees regarding all c
category and some b category mines. it is clear from the
directions contained in the order of 12th march, 1985, as
also the ratio of the judgment in the ambica quarry works
case (supra) that even if there has been an order of the
court and no challenge is raised against such order this
court could invoke its jurisdiction to nullify the direction
or order and if any order, direction or decree has been
passedignoring the provisions of the conservation act of
1980 the same would not be binding. we have been given to
understand during the hearing of these cases that appeals
have been preferred by the state of uttar pradesh where
decrees have been passed directing renewal. when this court
left the litigations to be continued, the conservation act
of 1980 had not been noticed. therefore, liberty had been
granted to agitate the disputes arising out of refusal to
renew. in view of the provisions in the conservation act and
the opinion expressed in ambica quarry works case (supra),
with which we are in agreement, the decrees also would not
be sustainable where prior approval of the central
government has not been obtained. we agree with brother
mukharji that whether it is a case of first grant or renewal
following exercise of option by the lessee, the compliance
of section 2 of the conservation act is necessary as a
condition precedent. no useful purpose would be served by
allowing the litigations to be continued in different
courts, particularly when keeping the broad interest of
society with reference to ecology and environment, we have
come to the conclusion that mining in this area has to be
stopped. notice has to be taken of the situation that the
entire dispute has been before this court and the scope of
the dispute is comprehensive. all parties are before this
court. parties have also been heard on various aspects at
different times. an order made by this court to nullify the
decrees in such circumstances would not be violative of the
principles of natural justice. apart from the notice
contained in the court's order of 19th october, 1987, where
it had been specifically stated that this court was of the
view that mining in the doon valley area should be totally
stopped. the position was also made clear to different
parties in course of the hearing which continued for several
weeks. we, therefore, hold that if any decree or order has
already been obtained from any court relating to renewal of
these ieases, the same shall stand vacated and similarly any
appeal or other proceeding taken to obtain a renewal or
against orders/decrees renewal shall also become nonest.
pg no 719
we shall now turn our attention to the consideration as
to whether mining should be totally stopped outright or in a
phrased manner.
in our order dated 14th october, 1987, we had
categorically indicated that mining in this area has to be
stopped but instead of outright closing down total mining
operations wewere of the view that mining activity may
have to be permitted to the extent it was necessary in the
interest of defence of the country as also by way of the
safe-guarding of the foreign exchange position. pursuant to
our direction in the said order (air 1987 sc 2426) the union
of lndia filed an affidavit on 18th november, 1987, through
dr. s. maudgal, director in the department ofenvironment,
forests & wildlife in the ministry of environment and
forests. that affidavit inter alia stated:
"3.l the ministry of defence do not require any high-
grade low silica limestone over and above what is needed for
production of steel. therefore, the limestone requirement of
the defence ministry are fully covered in the requirement of
the steel industry in the country.
3.2 high-grade limestone with low silica content is
required in steel production only in the units which are
operating on the ld process. as of today, only bhilai,
rourkela, bokaro and tisco, jarnshedpur are operating on the
ld process. the requirement of low-silica limestone in 1986-
87 as provided by the steel authority of lndia ltd. for its
plants at 2,20,550 tonnes with the break-up given in table-
i.
table i
source quantity received planned
1986-87 1987-88
upsmdc, dehradun 18,300 100.000
rsmdc 183,000 200,000
(gotann/jaisalmer
lmported 19,250 100,000
__________________________________________________________________
220,550 400,000
___________________________________________________________________
pg no 720
3.3 in addition to these steel plants, durgapur steel
plant & iisco, burnpur plant is also expected to switch over
to the ld process by 1994-95. the requirement of low silica
limestone for the steel plants as projected in the report of
the steel and mines, department of steel in march, 1987 is
given in table-il.
plant 1989-90 1994-95 1999-2000
bhilai steel 600 800 1,700
plant
durgapur steel - 540 890
plant
rourkela steel 340 580 920
plant
bokaro steel 1,360 1,530 1,800
 plant
indian iron & - 330 610
steel co. ltd.
_____________________________________________________________________
sail total 2,300 3.780 5,990
tata iron & 480 810 810
steel co. ltd.
vizag steel 300 550 750
plant
mini steel 50 100 200
plants
total 3,130 5,240 7,750
requirements
______________________________________________________________________
3.4 the occurrence of ld grade limestone deposits has
been identified at lambidhar. barkot (distt. dehradun) in
u.p.. gotan and jaisalmer in rajasthan, solanin himachal
pradesh and khorram in meghalaya. the deposits outside
u.p. have not, however, been prospected/explored in detail.
detailed exploration of these deposits is necessary for the
preparation of mining and environmental manageement plants
before definite assessment of the extent of production of
ld-grade from these deposits can be determined. jaisalmer
being the most favoured deposit should be explored on
pg no 721
priority. all the same. prima facie availability pattern of
the ld-grade limestone from various deposits is in given in
table iii.
table iii (ooo tonnes)
location 1989-90 1994-95 1999-2000
______________________________________________________________________
___
gotan 400 800 800
jaisalmer'r 200 800 1, 000
lambidhar 240 450 450
barkot _ - 1.000
solan - 500 1,000
meghalya - 200 500
katni/satna 2,000 2,500 3,000
______________________________________________________________________
total 3 , 840 5,250 7,750
requirement 3,130 5,240 7.750
surplus, deficit (-)290 - -
__________________________________________________________________
(subject to broad gauge link with jaisalmer)
3.5 data furnished by the six mine owners whose quarries
are operating shows that a total of 1,73.768 tonnes has been
supplied to the steel plants from dehradun-mussoorie area
during 1986 which is approximately 25% of their limestone
production. in this context, the state government of u.p.
have brought the following facts to our notice:
 "it has to be pointed out that the dehradun mussoorie
limestone belt also meets the requirement of our sugar
industry, and paper. the following table indicates the
approximate short and long term requirements of industries
that are dependent upon limestone from this belt|
h
pg no 722
(in tonnes)
short term long term
sugar industry 1,50, 000 2,00,000
chemicals &r paper 3,00,000 4,00,000
industry
there are over 90 sugar factories in the state which are
traditionally dependent on limestone from dehradun for use
in the process of manufacture. sugar industry in our state
is a key agriculture based industry on which the economy of
farmers of nearly 40 out of 57 districts depends. the
limestone needs of this industry are, therefore, important
for its survival. the chemical and paper industry further
set up in western and northern u.p. with large investments,
is also dependent upon dehradun limestone for their
existence. mini cement plants located in western u.p. and
in the doon valley (m/s venus cements) utilise offgrade
limestone generated from the mines consequent to their
operations. this, in effect, helps with the control of
pollution that would have occurred from mine wastes if
dumped or allowed to roll into depressions, valleys or
stream beds; it also helps with conservationand maximum
utilisation of the resource mined. ''
adverting to the question as to whether mining activity
in this area should be permitted to a limited extent,
keeping the principles of ecology in view, the affidavit
stated:
"the union government has all along taken the stand that
the doon valley is a fragile eco-system and is endowed by
nature with perennial water streams, lush green forests and
scenic beauty. all these factors have contributed to
mussoorie being called the queen of hill stations and
dehradun becoming an important place of tourist attraction
as well as centre of education. the unscientific and
uncontrolled limestone quarrying operations spread over the
entire 40 km. belt on the mussoorie slopes however,
endangered the delicate ecological balance resulting in ugly
scars, excessive debris flow, drying up of water streams
and perennial streams and rivulets and deforestation.
taking note of the disastrous ecological consequences,
pg no 723
the technical group constituted by the state and union
governments since 1979 have consistently recommended only
controlled mining in this area. the technical expert
committee constituted by the honourable supreme court under
the chairmanship of shri d.n. bhargav examined all the
operating quarries and came to the conclusion that all of
them, to a larger of smaller extent, have violated the
statutory provisions relating to mines. conditions in some
of the mines were considered to be so bad that 20 of these
were closed immediately in 1983. the committee, under the
chairmanship of shri d. bandy-opadhyaya examined the mining
and environmental management plans prepared by parties and
came to the unanimous conclusions that none of there plans
are satisfactory. therefore, the bandyopadhyaya
committee strongly recommended that none of the mines
reviewed by it should be allowed to operate. it is relevant
to reiterate here that closure of these mines has been
recommended by the bandyopadhyaya committee not just on the
ground that they are located within the mussoorie city
limits but after due consideration of the environmentai
implications, status of preparedness of mining and
environmental management plans and capability of the lessee
to under-take mining operations on a scientific basis so
that the damage to life and property, apart from
environmental degradation. is avoided. none of the mines
already closed is, therefore, fit to be considered for
operation.
it is the view of government that to prevent any further
degradation of the ecology and environment in the area and
to allow for rejuvenation. it is essential that limestone
mining operations, if they are to continue, should be on a
limited scale and completely regulated to ensure that they
are done in an entirely scientific manner consistent with
the imperatives of preservation and restoration of the
ecology and environment in this area. in order to meet the
essential requirements of steel industry, it would be
necessary to maintain supply of low silica limestone from
the dehradun mussoorie area. the state government of u.p.
also has brought to our notice that certain other vital
industrial and agricultural operations are dependent on
limestone supplies from this area. in view of these
considerations, it is felt that limestone mining on a
limited scale may have to continue under strict regulation."
pg no 724
this affidavit of dr. maudgal was not accepted by this
court as it did not fulfil the requirement of the directions
given in the court's order dated 19th october, 1987.then
came another affidavit dated 24th february, 1988, by shri
t.n. seshan, secretary in the ministry of environment and
forests. this affidavit indicated that 90 per cent of the
low silica high grade limestone was supplied by the
rajasthan mines to the steel authority of india ltd. and 10
per cent of supplies came from the dehradun quarries. tata
iron and steel company at jamshedpur, however, received a
sizeable supply from the dehradun quarries. according to
this affidavit, in 1986, the total production of high grade
limestone in the dehradun-mussoorie area was 6.02 lakh
tonnes. the affidavit indicated availability of such
limestone in several other parts of the country. in regard
to import of limestone and foreign exchange components, this
affidavit indicated that as low silica high grade limestone
is available from indigenous sources, import thereof could
be dispensed with. in paragraph 5 of this affidavit, the
question as to whether keeping in view the principles of
ecology, mining activity in the dehradun-mussoorie area
could be permitted to a limited extent, perhaps as pleaded
in the earlier affidavit, has been dealt with. this
affidavit stated|
"5.2 now that high grade low silica limestone is also
available in the extensive deposits covering large areas in
the state of rajasthan which can meet the requirements of
the steel industry which also includes defence requirements,
there is justification for disconstinuance of the existing
mining operation in the dehradun-mussoorie area and, in
fact, complete closure of the said mines in this area."
it is fact that while in the first affidavit, controlled
and limited mining was suggested, in the second affidavit
filed after a gap of about three months total stoppage of
mining activity in this area has been stressed. counsel
appearing on behalf of the state of uttar pradesh and upsmdc
offered serious criticism against this changed stance and we
were called upon to reject the second affidavit also. we do
not find any justification in this plea for rejection of the
affidavit. this court in its order of 19th october, 1987,
had in clear terms indicated what aspects were exactly
required to be answered by the affidavit of the union of
india. since the first affidavit did not answer those
points it was rejected and a further affidavit was directed
to be filed. there can be no two opinions that both the
affidavits pleaded for banning of mining; but the first
affidavit suggested controlled and limited mining inview
pg no 725
of the demands while the second affidavit, on consideration
of the fact that alternate sources were available for supply
of the limestone of the desired quality, asked for total
stoppage of mining operations. as we have already indicated
in another part of this judgment. awareness of the
environmental problem has been gradually increasing and
though in the first affidavit, the union of india had
expressed its view that limited and controlled mining could
be permitted, on a reconsideration of the matter and taking
into account the relevant aspects for reaching its
conclusion, the union of india has come to adopt the view
that there should be no mining in this area. we can well
gather why the upsmdc would feel aggrieved by the second
affidavit but so far as the state of uttar pradesh is
concerned, we do not see any justification in its critical
stand against the second affidavit on the plea that the
stand accepted in the first affidavit has been given a go
by. maintenance of the environment and ecological balance is
the obligation of the state and the central governments and
unless there was any real objection to the opinion of the
union of india as to continuing or closing down of mining
activity, it should have been taken in the proper light and
the little modified stand adopted in the second affidavit
should have been welcomed.
in another part of our judgment we have found that the
entire area is more or less forest. many portions are
reserved while others constitute forest land. it is
indisputable that mining operationsare detrimental to
forest growth. in fact the union government in the ministry
of environment and forest have on 31st may, 1988, informed
the secretaries of all the state governments in the
department of forest that even mining area below the forests
would affect the forests.
the variation of the stand in the second affidavit that
mining activity should be totally stopped is certainly an
improvement on the stand taken in the first affidavit but we
do not think there is any inconsistency in the stand
inasmuch as the justification in support of the plea of
total closure has been indicated.
even before any of these two affidavits was filed this
court in its order of 19th of october, 1987, had clearly
indicated that mining activity in this area should he
totally stopped. the view expressed in the second affidavit
is in accord with what this court has stated. on assessment
of the factual position, we do not think there is any
substance in the argument advanced on behalf of the uttar
pradesh government, upsmdc or any other mine owner which
would justify our rejecting the second affidavit. we would
pg no 726
like to add that this is not a case of a somersault as
contended on behalf of the state government of 'uttar
pradesh nor has it been occasioned by any illegitimate
consideration.
the point which still remains to be dealt with is
whether mining activity should be totally stopped
immediately.
it is the accepted-position by all parties that low
silica content limestone is necessary for manufacturing
class steel. the earlier ld process is being abandoned by
new factories and even some are switching over to new
methods but for quite some time there would be demand for
low cilica content limestone for manufacture of steel by the
ld process. the alternate source which has been indicated in
these two affidavits of the union of india is not readily
available to the fullest extent. the gotan-jaisalmer belt
has to be worked out in full swing and that would take some
time. the main difficulty for the jaisalmer production to
reach the consumers is the location of the mining area. it
has no broad-gauge rail connection and admittedly the
location is in the interior. the consumer would immediately
face transport difficulty until there is conversion of the
railway track to broad-gauge and surface transport facility
improves. even if these facilities are made available, the
distant location is bound to reflect itself in the cost
factor.
the question of foreign exchange component does not seem
to be very material as the required type of mineral is
indigenously available and import may not be necessary when
the production in rajasthan area increases. the fact that in
the recent past the tata iron and steel company has made
some import has indeed no real bearing on the question as
that import has been necessitated on account of the closure
of the mines in this area and non-availability of the
material from the alternate indigenous source.
we have already recorded a finding elsewhere in this
judgment that most of these mines are either within reserved
forests or in forest lands, as covered by the u.p. amendment
of the forest act. to these areas the forest conservation
act applies and to allow mining in these areas even under
strictest control as a permanent feature would not only be
violative of the provisions of forest (conservation) act but
would be detrimental to restoration of the forest growth in
a natural way in this area. once the importance of forests
is realised and as a matter of national policy and in the
interests of the community, preservation of forests is
accepted as the goal, nothing which would detract from that
pg no 727
end should be permitted. in such circumstances we reiterate
our conclusion that mining in this area has to be totally
stopped.
there was some controversy as to whether some of the
mines were located in the reserved forests. we have not made
any attempt to resolve that controversy here as, in our
opinion, whether the mines are within the reserved forests
or, in other forest area, the provisions of the conservation
act apply.
we do not agree with the submission advanced by mr.
nariman for the intervener, mr. sibbal for the uttar pradesh
government, mr. yogeshwar prasad for the upsmdc, dr. singhvi
for some of the mine owners and similar contentions advanced
by other counsel of different mine lessees that there would
be a total stalemate in the manufacture of drugs and sugar,
as also steel, in case mining activity is stopped; yet we
would accept this position that these would be hard-hit if
mining activity in this area is stopped all of a sudden.
with the pressing demand in the market and discovery of
useful limestone deposits in other parts of the country
apart from what has been indicated in the second affidavit
of the union of india the trade would adjust itself as every
economic activity does. we are, however, of the view that
the position should be monitored and the switch-over from
the present position to a total ban should be spread over a
period and not be sudden.
we have already taken note of the fact that for
different reasons several mines are closed down and only
six, as indicated in another part of this judgment. are
working. now that we have found that some mining activity
for some more time in this area may be permitted under
strict regulation, we have now to decide which of the mines
may be permitted to work and for what period as also subject
to what conditions.
majority of the mining leases was granted in 1962. the
lease period being 20 years. the original period of lease
has expired in all such cases where the leases commenced
from 1962. but following are the mines where the original
grant is still valid and their date of expiry is separately
indicated :
pg no 728
s.no. name of the lessee lease no. valid up-to
1. u .p. s.m .d . c. 94 10.3. 1996
2. sh. r.k. oberai 72 10.4. 1994
3. punjab lime & 96 12.12.1989
lime-stone co.
______________________________________________________________________
____
_
apart from these three, there are four other mines which
are also operating under decrees/orders of courts as per the
details below :
______________________________________________________________________
____
____
s. no. name of the lessee lease no. lease expired
1. punjab lime & l4(ii) 2. 12. 82
stone co.
2. ch. ved pal singh 16 2. l2.82
3. seth ram avtar 17 2. 12. 82
4. sh. c. c;. gujaral 76 15. 12. 82
in all these cases, the leases have expired and the
lessor government refused to renew them. the lessees have
obtained orders from the court and are working continuously.
in view of what we have held, the orders or decrees become
inoperative and are deemed to have been set aside by this
judgment. mining in these four leases must stop within one
month from today.
apart from the three working mines specified above where
the original lease period is yet to expire, there are six
other a category mines with valid leases which are not
working now as per the particulars below :
______________________________________________________________________
____
__
s.no. name of the lessee lease no. valid up-to
______________________________________________________________________
____
__
1. new era minerals 4 25.2.1990
2. u. p. minerals 8 10.4.1994
3. rajgiri minerals 9 24.11.1992
4. anand brothers 67 15.2.1992
5. uttrakhand minerals98 12. 12 1989
6. vijayashree minerals99 20.3. 1990
______________________________________________________________________
____
_
pg no 729
these mines are not operating at present for one reason
or the other. on the 12th of may, 1985, the mines within the
municipal limits of mussoorie were directed to close down
until they were cleared by the bandyopadhyay committee and
that committee did not clear any. so far as the first five
mines are concerned, they are either within the municipal
limits or within the forest area. we do not think it
appropriate to allow them to operate until their lease
periods lapse particularly when we have reached the
conclusion that mining operation in this area should close
down. an exception has to be made in the case of the mine
being lease no. 99 where the lease period has to expire in
1990. the lease is of 15 acres of land and another 100 acres
are from some private source. mr. jain appearing for the
lessee had undertaken before us that over the 100 acres,
there would be no mining operation and the lessee would
immediately restore vegetation over the area and full forest
growth will be available in regard to the 100 acres. the
mine is neither within forest nor municipal area and
minerals from this area would be removed not through the
city limits. he has also assured us that immediately after
the lease period is over, which would be about a year and
half from now, the 15 acres would also be subject to real
forestation by the lessee. he has agreed to file a
undertaking in this court which we direct him to, do within
four weeks hence. on the undertaking being filed this mine,
as a special case, shall be permitted to operate until the
expiry of the lease. the committee appointed under this
order shall supervise the reafforestatian programme under-
taken by the lessee of lease no. 99 and in case it is of the
view that the undertaking is not being properly worked out.
on the report of the committee to that effect, permission to
work the lessee may be varied.
mr. jain appearng for another lessee and mr. pramod
dayal appearing for the lessee in respect of lease no. 67
had tried to make out specific cases. during the hearing of
these cases we had felt impressed by what had been placed
before us but since we have now taken a decision to close
down mining activity in the area we do not think fresh
mining operations where mining has already been stopped-
whatever be the ground-should on principle be permitted. to
make out a special case for a few lesses from amongst
similarly placed mine owners of small differences for being
permitted to work out stopped mines, in our opinion, would
not be appropriate at this stage. on the other hand to treat
them all as a class and subject them to a common order would
be just and proper. we reiterate that the exception in the
case of lease no 99 is for testing the genuineness of the
representation of the lessee and in consideration of the
smallness of the area.
pg no 730
we would like to notice at this place the contention of
dr. singvi that a category mine owners should not suffer on
account of this court's order and similar treatment to all a
category mine owners should be given. there can be no two
opinions about the court extending equal treatment to all
equally placed parties before it. it is, however, not
correct that the a category mines which are operating and
those that are closed down are similarly situate. in fact,
when the court made the earlier order asking for closing
down, the distinction was noticed and on that basis orders
involving different treatments had been made. it may be that
we have not found the distinction to be a tenable one at a
later stage. but in the peculiar situation emerging in this
case we do not accept the submission of dr. singhvi that
those a category mines which had stopped working should be
permitted to run. there are certain situations where in the
interest of general benefit to the community, interests of
individual citizens may be over-looked. we are satisfied
that this situation attracts that principle to operate and
even if some of the mine owners are worse affected than some
others, permission to reopen the mines located in the
forests and within municipal limits cannot be granted with a
view to compensating them for being placed at par with the
less affected group.
it is perhaps necessary to indicate why these three on-
going mines whose original lease period has not lapsed are
being permitted to continue mining. we have already taken
note of the position that upsmdc is a public sector
undertaking of the state of uttar pradesh and there has been
a huge investment by the state in this establishment. it
gives sizeable output. though certain defects have been
pointed out in its activities by the working group, we are
of the opinion that if appropriately controlled, mining
activities can be regulated and simultaneously
reafforestation can be activised. so far as r.k. oberai is
concerned, the working group has found least objection
against it. the lease of punjab lime & limestone company
shall have life of a little more than one year. all these
three mines are running their initial lease period. no
additional exercises are necessary to make them operative.
if any of these mines is closed down there would be problem
of unemployment. in regard to the mines closed for more than
three years, we do not think the labour is sitting idle and
the mine owner is paying them. they must have got employed
elsewhere of they have lost their service and have taken to
alternate engagement. in our opinion, therefore, allowing
these three on-going mines to operate for their initial
period of lease is the most appropriate direction that can
be given during the switch over from the present position to
one of complete closing down of mining operation. we,
therefore permit these three mines to continue mining
pg no 731
operation subject to compliance with all legal requirements
and the additional conditions whichwe shall hereafter
indicate.
the next aspect to be considered is as to under what
conditions mining operation by these three lessees should be
permitted. the objections raised by the working group
against the upsmdc are germane and legitimate. we shall
require this lessee to meet all these objections within a
period of four months from now. if by the end of december,
1988, the lessee fails to comply with this direction to the
satisfaction of the monitoring committee which is being
setup by this judgment, the monitoring committee is
empowered to direct closing down of the mine subject to any
other direction of this court. so far as the other two mines
are concerned, whatever objections have been raised by the
working committee shall also be removed within the same time
limit and on failure of compliance, they too shall be
visited with the same consequences.
there is no dispute that continuance of mining
operations affects environment and ecology adversely and at
the same time creates a prejudicial situation against
conservation of forests. it is, therefore, necessary that
each of these working mines shall have to work with an
undertaking given to the monitoring committee that all care
and attention shall be bestowed to preserve ecological and
environmental balance while carrying on mining operations.
25% of the gross profits of these three mines shall be
credited to the fund incharge of the monitoring committee in
such manner as the committee may direct and the committee
shall ensure maintenance of ecology and environment as also
reafforestation in the area of mining by expending money
from the fund. in the event of expenses exceeding the
contribution by these three respective lessees, the
committee shall report to this court for directions. on the
expiry of their respective leases, they shall not be
entitled to carry mining operation and by operation of this
judgment shall have to wind up. no application for renewal
shall be entertained from them. these three lessees as also
any other lessee shall not be entitled to any compensation
for closing down of the mines under orders of this court.
in the order of 12th march, 1985, a three-judge bench of
this court had indicated that the mine owners who had been
displaced should be rehabilitated. there is no material on
record if any alternate provision has been made either by
the state of uttar pradesh or the union of india. on-going
leases have been terminated under orders of this court
pg no 732
without provision for compensation. indisputably
displacement has been suffered by these lessees and the
sudden displacement must have up-set their activities and
brought about substantial inconvenience to them. the court
has no other option but to close down the mining activity in
the broad interests of the community. this, however, does
not mean that the displaced mine owners should not be
provided with alternative occupation. pious observation or
even a direction in that regard may not be adequate, what is
necessary is a time frame functioning if rehabilitation is
to be made effective. it is therefore, necessary that a
committee should be set up to over-see the rehabilitation of
the displaced mine owners. the uttar pradesh government, as
apprehended by many of these mine owners, by itself may not
be able to meet the requirements of the situation. it may be
that all the displaced mine owners may not find suitable
placement within the state of uttar pradesh. it is,
therefore, necessary to associate of some other states in
the programme. unless a high powered committee is set up
wherein union of india is also represented, the committee to
be constituted may not be effective and there may be lack
of coordination. there is material that lime stone quarries
are available in rajasthan and gujarat. it is, therefore,
necessary that representatives of these state governments
are also on the committee. we accordingly direct a committee
to be set up with representatives of the union of india, the
state governments of uttar pradesh, rajasthan and gujarat.
while effecting rehabilitation by giving alternate mining
sites, ecology and environment will have to be considered.
it is, therefore, necessary that that such committee the
ministry of environment should also be represented. apart
from them there should at least be two experts. we direct
constitution of a rehabilitation committee with the
following members:
1. secretary, department of mines, government of lndia-
chairman.
2. secretary, department of environment and forest.
government of india-member.
3. secretaries, department of mining of the states of
uttar pradesh. rajasthan and gujarat-members. mr. anil
aparwal of centre for science and environment, g-92,
kalkaji, new delhi, and mr. subrata sinha, senior deputy
director general, geological survey of india, 27, jawaharlal
nehru road, calcutta, are nominated as the expert members of
this committee. the committee shall have an officer of the
grade of under secretary to the government of india as its
secretary and the minimum skelton staff for carrying its
pg no 733
activities. for convenience, the office may be located for
the time being in the ministry of steel and mines at new
delhi. the ministry of environment and forest is directed to
deposit a sum of rs.3 lacs in the registry of this court
within four weeks from today to be transferred to the
committee for the purpose of the committee subject to
appropriate accounts to be rendered to the ministry
concerned. the committee is directed to make an initial
report on the problem and the manner it proposes to tackle
it within eight weeks from today. on the basis of such
report, further directions shall be made. the laws in force
shall have to be kept in view and the above-named members
are directed to extend full cooperation with zeal and a
sense of under-standing of the problems so that
rehabilitation can be done as a part of the environmental
programme.
the court is of the view that a monitoring committee is
necessary for reafforestation of the areas as also for over-
seeing the running of the three mines. the state- of uttar
pradesh has already undertaken a reafforestation programme
in the area. the record, however, does not indicate much of
improvement yet. we have taken note of the position that the
uttar pradesh government has a master plan for the doon
valley spread over a quarter of century beginningwith
1986. since the court has stepped in to close down mining
operation in this area except to a very limited extent, we
are of the view that a high powered committee should be set
up to look after reafforestation, mining, activities and all
other aspects necessary to bring about natural normalcy in
the doon valley. mr. k.p. geetakrishnan, a member of the
indian administrative service, now secretary, forest, wild
life and environment in the central government, in our
opinion, should be made the chairman of the monitoring
committee. mr. d. bandy-opadhyay, a member of the indian
administrative service. now secretary, department of
revenue in the central government. who, had headed a
committee set up by this court is aware of the problems of
this area. we are of the opinion that he should be made a
member of the monitoring committee. the head of the indian
defence academy, the head of the indian forest lnstitute,
the head ot the establishment of ongc (all located at
dehradun), the secretary, forest department of the uttar
pradesh and the chairmen of the mussoorie and dehradun
municipalities, and two public spirited citizens-one
belonging to mussoorie and another to dehradun area are to
be the members of this committee. the two non-official
members shall be co-opted by the committee. the committee
shall have its office at dehradun in the accommodation to be
provided either by the ongc or the forest staff college. the
pg no 734
government of uttar pradesh is directed to deposit a sum of
rs.5 lacs for creating the initial fund of the monitoring
committee. the amount should be deposited in the registry of
this court within four weeks from now. it shall be open to
the monitoring committee to appoint a skelton staff with the
suitable officers to run the establishment. we hope and
expect that the concerned governments will permit their
officers to undertake the respective assignments in public
interest and we expect the officers also to extend their
whole-hearted support to work out the trust reposed in them.
the monitoring committee shall have powersto over-see
reafforestation in the area by the state of uttar pradesh
and undertake an appropriate scheme of reafforestation. it
shall ensure that mining activity by the three on-going
mines is carried out in accordancewith law and with
appropriate safeguards from environment and ecology point of
view. it shall also ensure that the scree is removedfrom
the natural streams and the flow of water is maintained.
after the committee makes its initial report within eight
weeks from now to the registry further directions as
necessary shall be given.
it is not our intention to continue control over these
matters. once this court is satisfied that the committees
are operating on the right lines we shall consider whether
it is any longer necessary for the court to supervise their
activity.
before we part with the case, we must indicate our
appreciation of services rendered by the petitioners and
their counsel to the cause, the cooperation and
understanding extended by the mine owners, their counsel,
the members of the several committees constituted by the
court but for which these proceedings could not have come to
terminate in the present manner. the records of the case
have become unusually bulky and but for the continued
assistance of mr. pramod dayal, a member of the bar of this
court, it would indeed have been difficult for us as also
parties and their advocates to handle the matter with ease.
mr. parmod dayal deserves our commendation for the labour he
has put in. he was appearing for some of the lessees but the
assisted the court very willingly as and when called upon.
we are of the view that he should be paid a total sum of
rs.5,000 (rupees five thousand only) for the services
rendered. we direct the union of india to deposit the said
amount with the registry of this court within two weeks from
now. this amount when deposited shall be paid to mr. parmod
dayal.
pg no 735
the writ petitions are disposed of. there would be no
order for a costs. we direct that the reports of the two
committees, as and when received, shall be placed before
this court for directions.
r.s.s.
petitions disposed of.

petitioner:
m.c. mehta

vs.

respondent:
union of india & others

date of judgment22/09/1987

bench:
venkataramiah, e.s. (j)
bench:
venkataramiah, e.s. (j)
singh, k.n. (j)

citation:
1988 air 1115 1988 scr (2) 530
1988 scc (1) 471 jt 1988 (1) 69

act:
constitution of india, 1950: articles 48a and 51a-state
to protect and improve environment-fundamental duty of every
citizen to improve natural environment.
environmental law
water (prevention and control of pollution) act, 1974
and environment (protection) act, 1986:
 'environment'-discharge of effluents from tannery into
the river ganga-necessity to establish primary treatment
plants-closure of tanneries directed on failure to comply-
life, health and ecology have great importance.
practice and procedure: court can issue appropriate
directions if it finds public nuisance being committed and
statutory authorities not taking adequate steps to rectify
the grievance.

headnote:
the petitioner, an active social worker, filed a
petition before this court complaining that neither the
government nor the people were giving adequate attention to
stop the pollution of the river ganga and it was, therefore,
necessary to take steps for the purpose of protecting the
cleanliness of the stream in the river ganga which was in
fact the life sustainer of a large part of the northern
india, and sought the issue of a writ/order/direction in the
nature of mandamus to the respondents other than respondents
nos. 1 and 7 to 9 restraining them from letting out the
trade effluents into the river ganga till such time they put
necessary treatment plants for treating the trade effluents
in order to arrest the pollution of water in the said river.
this court directed issue of notice under order 1 rule
8 of the
280
code of civil procedure treating the case as a
representative action by publishing the gist of the petition
in the newspapers in circulation in northern india and
calling upon industrialists and the municipal corporations
and town municipal councils having jurisdiction over the
areas through which the river ganga flows to appear before
the court to show cause as to why direction should not be
issued as prayed for by the petitioner asking them not to
allow trade effluents and sewage into theriver ganga
without appropriately treating them before discharging them
into the river.
pursuant to the aforesaid notice a large number of
industrialists and legal bodies entered appearance. some
filed counter affidavits ex-plaining the steps taken by them
for treating trade effluents before discharging them into
the river.
the case against the tanneries at jajmau, kanpur, was
first taken up by the court for consideration. forty three
respondents admitted in their counter affidavits that the
tanneries discharged their trade effluents into the sewage
nallah which led to the municipal sewage plant before they
were thrown into the river ganga.
the court was informed that six of the tanneries had
already set up and fourteen were engaged in construction of
primary treatment plants, and some others pleaded for time
to do so. it was submitted on behalf of the respondents that
it would not be possible for them to have secondary system
for treating waste water in view of the enormous expenditure
involved, which the tanneries would not be able to meet.
some of the tanneries neither appeared nor were represented
by counsel in this court.
issuing interim directions, this court,
^
held: 1.1 article 48-a of the constitution provides
that the state shall endeavour to protect and improve the
environment and to safeguard the forests and wild life of
the country. article 51-a of the constitution imposes as one
of the fundamental duties on every citizen the duty to
protect and improve the natural environment including
forests, lakes, rivers and wild life and to have campassion
for living creatures. [285c-d]
realising the importance of the prevention and control
of pollution of water for human existence, parliament passed
the water (prevention and control of pollution) act, 1974,
to provide for the
281
prevention and control of water pollution and the
maintaining or restoring of wholesomeness of water, for the
establishment, with a view to carrying out the purposes
aforesaid of boards for the prevention and control of water
pollution, for conferring on and assigning to such boards
powersand functions relating thereto and for matters
connected therewith sections 16 and 17 of the act describes
the functions of the central and the state board. the act
was adopted by the state of uttar pradesh. in addition,
parliament also passed the environmental (prevention) act,
1986 which came into effect from november, 1986 throughout
india. [288b-d; 289a, f]
1.2 notwithstanding the comprehensive provisions
contained in the act of 1974, no effective steps appear to
have been taken by the state board so far to prevent the
discharge of effluents of the jajmau near kanpur to the
river ganga. the fact that such effluents are being first
discharged into the municipal sewerage does not absolve the
tanneries from being proceeded against under the provisions
of the law in force since ultimately the effluents reach the
river ganga from the sewerage system of the municipality.
not much has been done even under the act of 1986 by the
central government to stop the grave public nuisance caused
by the tanneries at jajmau, kanpur. [289-e; 290c]
1.3 there is no doubt that the discharge of the trade
effluents from the tanneries into the river ganga has been
causing considerable damage to the life of the people who
use the water of the river and also to the aquatic life in
the river. the effluents discharged from a tannery is 10
times noxious when compared with the domestic sewage which
flows into the river from any urban area on its banks. the
tanneries at jajmau, kanpur cannot be allowed to continue to
carry on the industrial activity unless they take steps to
establish primary treatment plant. [298e-f]
no doubt it may not be possible for the tanneries to
establish immediately the secondary system plant in view of
the large expenses involved, but having regard to the
adverse effect the effluents are having on the river water,
the tanneries at jajmau, kanpur, should at least set up
primary treatment plants, which is the minimum that the
tanneries should do in the circumstances of the case. the
financial capacity of the tanneries should be considered as
irrelevant while requiring them to establish primary
treatment plants. just like an industry which cannot pay
minimum wages to its workers cannot be allowed to exist, a
tannery, which cannot set up a primary treatment plant,
cannot be permitted to continue to be in existence for the
adverse
282
effect on the public at large which is likely to ensue by
the discharging of the trade effluents from the tannery to
the river ganga would be immense and it will outweigh any
inconvenience that may be caused to the management and the
labour employed by it on account of its closure. moreover,
the tanneries involved in this case are not taken by
surprise. for several years they are being asked to take
necessary steps to prevent the flow of untreated water from
their factories into the river. some of them have already
complied with the demand. [298c-e]
1.4 in cases of this nature this court may issue
appropriate directions if it finds that the public nuisance
or other wrongful act affecting or likely to affect public
is being committed and the statutory authorities which are
charged with the duty to prevent it are not taking adequate
steps to rectify the grivevance. for every breach of right
there should be a remedy. [298f-g]
it is unfortunate that a number of tanneries at jajmau
even though they are aware of these proceedings have not
cared even to enter appearance in this court to express
their willingness to take appropriate steps to establish the
pretreatment plants. so far as they are concerned, they are
directed to stop running of their tanneries and also not to
let out trade effluents either directly or indirectly into
the river ganga without subjecting the trade effluents to a
pretreatment process by setting up primary treatment plants
as approved by the state board with effect from october 1,
1987. time granted till 31.3.1988 to other tanneries who are
members of the hindustan chambers of commerce and the other
tanneries to establish primary treatment plants within six
months. if any of these tanneries does not set up a primary
treatment plant within 31.3.1988 such a tannery will stop
business with effect from 1.4.1988. [298g-h; 299d, g-h;
300a]
such of those tanneries who have already put up primary
treatment plants may continue running provided they keep the
plants in sound working order.[299fl
the central government, the uttar pradesh board,
established under the provisions of the water (prevention
and control of pollution) act, 1974 and the district
magistrate, kanpur are directed to enforce this order. [30ob
l
per singh, j: (supplementing)
the pollution of the river ganga is affecting the life,
health and
283
ecology of the indo-gangetic plain. the (government as well
as parliament both have taken a number of steps to control
the water pollution, but nothing substantial has been
achieved. no law or authority can succeed in removing the
pollution unless the people cooperate. it is the sacred duty
of all those who reside or carry on business around the
river ganga to ensurethe purity of ganga. tanneries at
jajmau area near kanpur have been polluting the ganga in a
big way. though notices were issued many industrialists have
not bothered either to respond to the notice or to take
elementary steps for the treatment of industrial effluent
before discharging the same into the river. those tanneries
which have failed to take minimum steps required for the
primary treatment of industrial effluent are directed to be
closed. no doubt closure of tanneries may bring
unemployment, loss of revenue, but life, health and ecology
have greater importance to the people. [301g-h; 302a-b]

judgment:
original jurisdiction: writ petition no. 3727 of 1985
under article 32 of the constitution of india.
m.c. mehta (petitioner-in-person).
b. datta, additional solicitor general, r.p. kapur, p.p
singh and ms. a subhashini for respondent nos. 2 and 3
r.a. gupta for respondent no. 87.
s.k. dholakia, deepak k. thakur, mukul mudgal and p.
narasimhan for respondent no. 89.
miss bina gupta, b.p. singh, s.r. srivastava, krishan
kumar, vineet kumar, r. mohan, mrs. shobha dikshit, a.
sharan, d. goburdhan, mrs. g.s. mishra, parijat sinha, r.c.
verma, r.p. singh, ranjit kumar, r.b. mehrotra, manoj swarup
& co. raj birbal, j.b.d. & co. s.s. khanduja, b.p singh,
e.c. aggrawala, khaitan & co., a.k. srivastava, swarup john
& co., mehta dave, r.s. sodhi, subodh markandey, t.v.s.n.
chari, ashok grover, narain and p.c. kapur for the
respondents.
b.r.l. iyenger and surya kant for the intervener.
the judgment of the court was delivered by
venkataramiah, j. this is a public interest litigation
the
284
petitioner who is an active social worker has filed this
petition inter alia for the issue of a writ/order/direction
in the nature of mandamus to the respondents other than
respondents 1, and 7 to 9 restraining them from letting out
the trade effluents into the river ganga till such time they
put up necessary treatment plants for treating the trade
effluents in order to arrest the pollution of water in the
said river. respondent 1 is the union of india, respondent 7
is the chairman of the central board for prevention and
control of pollution, respondent 8 is the chairman, uttar
pradesh pollution control board and respondent 9 is the
indian standards institute.
water is the most important of the elements of nature.
river valleys are the credles of civilization from beginning
of the world. aryan civilization grew around the towns and
villages on the banks of the river ganga. varanasi which is
one of the cities on the banks of the river ganga is
considered to be one of the oldest human settlements in the
world. it is the popular belief that the river ganga is the
purifier of all but we are now led to the situation that
action has to be taken to prevent the pollution of the water
of the river ganga since we have reached a stage that any
further pollution of the river water is likely to lead to a
catastrophe. there are today large towns inhabited by
millions of people on the banks of the river ganga. there
are also large industries on its banks. sewage of the towns
and cities on the banks of the river and the trade effluents
of the factories and other industries are continuously being
discharged into the river. it is the complaint of the
petitioner that neither the government nor the people are
giving adequate attention to stop the pollution of the river
ganga. steps have, therefore, to be taken for the purpose of
protecting the cleanliness of the stream in the river ganga,
which is in fact the life sustainer of a large part of the
northern india.
when this petition came up for preliminary hearing, the
court directed the issue of notice under order 1 rule 8 of
the code of civil procedure treating this case as a
representative action by publishing the gist of the petition
in the newspapers in circulation in northern india and
calling upon all the industrialists and the municipal
corporations and the town municipal councils having
jurisdiction over the areas through which the river ganga
flows to appear before the court and to show cause as to why
directions should not be issued to them as prayed by the
petitioner asking them not to allow the trade effluents and
the sewage into the river ganga without appropriately
treating them before discharging them into the river.
pursuant to the said notice a large number of industrialists
and local bodies have entered
285
appearance before the court. some of them have filed
counteraffidavits explaining the steps taken by them for
treating the trade effluents before discharging t-hem into
the river. when the above case came up for consideration
before the court on the last date of hearing we directed
that the case against the tanneries at jajmau area near
kanpur would be taken up for hearing first. respondents 14
to 87 and 89 are the tanneries near kanpur. of them
respondents 16 to 32, 34 to 36, 43, 47, 51, 52, 54, 55, 57,
58, 60 to 62, 64, 67 to 69, 72, 74, 75, 77 to 82, 85, 87 and
89 are represented by counsel. the remaining tanneries did
not appear before the court at the time of the hearing nor
were they represented by any counsel.
before proceeding to consider the facts of this case it
is necessary to state a few words about the importance of
and need for protecting our environment. article 48-a of the
constitution provides that the state shall endeavour to
protect and improve the environment and to safeguard the
forests and wild life of the country. article 51-a of the
constitution imposes as one of the fundamental duties on
every citizen the duty to protect and improve the natural
environment including forests, lakes, rivers and wild life
and to have compassion for living creatures. the
proclamation adopted by the united nations conference on the
human environment which took place at stockholm from 5th to
16th of june, 1972 and in which the indian delegation led by
the prime minister of india took a leading role runs thus:
"1. man is both creature and moulder of his
environment which gives him physical sustenance
and affords him the opportunity for intellectual,
moral, social and spiritual growth. in the long
and tortuous evolution of the human race on this
planet a stage has been reached when through the
rapid acceleration of science and technology, man
has acquired the power to transform his
environment in countless ways and on an
unprecedented scale. both aspects of man's
environment, the natural and the man-made, are
essential to his well-being and to the enjoyment
of basic human rights-even the right to life
itself.
2. the protection and improvement of the
human environment is a major issue which affects
 the well-being of peoples and economic development
throughout the world; it is the urgent desire of
the peoples of the whole world and the duty of all
governments.
286
3. man has constantly to sum up experience
and go on discovering, inventing, creating and
advancing. in our time man's capability to
transform his surroundings, if used wisely, can
bring to all peoples the benefits of development
and the opportunity to enhance the quality of
life. wrongly or heedlessly applied, the same
power can do incalculable harm to human beings and
the human environment. we see around us growing
evidence of man-made harm in many regions of the
earth; dangerous levels of pollution in water,
air, earth and living beings; major and
undesirable disturbances to the ecological balance
of the biosphere; destruction and depletion of
irreplaceable resources; and gross deficiencies
harmful to the physical, mental and social health
of man, in the man-made environment; particularly
in the living and working environment.
a point has been reached in history when we
must shape our actions throughout the world with a
more prudent care for their environmental
consequences. through ignorance or indifference we
can do massive and irreversible harm to the
earthly environment on which our life and well-
being depend. conversely, through fuller knowledge
and wiser action, we can achieve for ourselves and
our posterity a better life in an environment more
in keeping with human needs and hopes. there are
broad vistas for the enhancement of environmental
quality and the creation of a good life. what is
needed is an enthusiastic but calm state of mind
and intense but orderly work. for the purpose of
attaining freedom in the world of nature, man must
use knowledge to build in collaboration with
nature a better environment. to defend and improve
the human environment for present and future
generations has become an imperative goal for
mankind-a goal to be pursued together with, and in
harmony with, the established and fundamental
goals of peace and of world-wide economic and
social development.
to achieve this environmental goal will
demand the acceptance of responsibility by
citizens and communities and by enterprises and
institutions at every level, all sharing equitably
in common efforts. individuals in all walks of
 life as well as organizations in many fields, by
their values and the sum of their actions, will
shape the world environ-
287
ment of the future. local and national governments
will bear the greatest burden for large-scale
environmental policy and action within their
jurisdictions. international co-operation is also
needed in order to raise resources to support the
developing countries carrying out their
responsibilities in this field. a growing class of
environmental problems, because they are regional
or global in extent or because they affect the
common international realm, will require extensive
co-operation among nations and action by
international organizations in the common
interest. the conference calls upon the
governments and peoples to exert common efforts
for the preservation and improvement of the human
environment, for the benefit of all the people and
for their posterity."
the proclamation also contained certain
common convictions of the participant nations and
made certain recommendations on development and
environment. the common convictions stated include
the conviction that the discharge of toxic
substances or of other substances and the release
of heat in such quantities or concentrations as to
exceed the capacity of environment to render them
harmless must be halted in order to ensure that
serious or irreversible damage is not inflicted
upon eco systems, that states shall take all
possible steps to prevent pollution of the seas so
that hazards to human health, harm to living
resources and marine life, damage to the amenities
or interference with other legitimate uses of seas
is avoided that the environmental policies would
enhance and not adversely affect the present and
future development potential of development
countries, that science and technology as part of
their contributions to economic and social
development must be applied with identification,
avoidance and control of environmental risks and
the solution of environmental problems and for the
common good of mankind, that states have the
responsibility to ensure that activities of
exploitation of their own resources within their
jurisdiction are controlled and do not cause
damage to the environment of other states or areas
beyond the limit of national jurisdiction, that it
will be essential in all cases to consider the
 systems of values prevailing in each country and
the extent of the applicability of standards which
are valid for the most advanced countries but
which may be inappropriate
288
and of unwarranted social cost and that man and
his environment must be spared the effects of
nuclear weapons and all other means of mass
destruction. these are only some of the statements
of principles proclaimed by the stockholm
conference.
(vide lal's commentaries on water and air
pollution laws (2nd edn. ) pages 6-7
realising the importance of the prevention and control
of pollution of water for human existence parliament has
passed the water (prevention and control of pollution) act,
1974 (act 6 of 1974) (hereinafter referred to as 'the act')
to provide for the prevention and control of water pollution
and the maintaining or restoring of wholesomeness of water,
for the establishment, with a view to carrying out the
purposes aforesaid, of boards for the prevention and control
of water pollution, for conferring on and assigning to such
boards powers and functions relating thereto and for matters
connected therewith. the act was passedpursuant to
resolutions passed by all the houses of legislatures of the
states of assam, bihar, gujarat, haryana, himachal pradesh,
jammu and kashmir, karnataka, kerala, madhya pradesh,
rajasthan, tripura and west bengal under clause (1) of
article 252 of the constitution to the effect that the
prevention and control of water pollution should be
regulated in those states by parliamentary legislation. the
act has been since adopted by the state of uttar pradesh
also by resolutions passed in that behalf by the houses of
legislature of the said state in the year 1975 (vide
notification no. 897/ix-3-l00-74 dated 3.2.1975). section 24
of the act prohibits the use of any stream or well for
disposal of polluting matter etc. it provides that subject
to the provisions of the said section no person shall
knowingly cause or permit any poisonous, noxious or
polluting matter determined in accordance with such
standards as may be laid down by the state board to enter
whether directly or indirectly into any stream or well or no
person shall knowingly cause or permit to enter into any
stream any other matter which may tend either directly or in
combination with similar matters to impede the proper flow
of the water of the stream in a manner leading or likely to
lead to a substantial aggravation of pollution due to other
causes or of its consequences. the expression stream is
defined by section 2(j) of the act as including river, water
course whether flowing or for the time being dry, inland
water whether natural or artificial, sub-terranean waters,
sea or tidal waters to such extent or as the case may be to
such point as the state government may by notification in
the official gazette,
289
specify in that behalf. under the act it is permissible to
establish a central board and the state boards. the
functions of the central board and the state boards are
described in section 16 and 17 respectively. one of the
functions of the state board is to inspect sewage or trade
effluents, works and plants for the treatment of sewage and
trade effluents, and to review plans, specifications or
other data relating to plants set up for the treatment of
water, works for the purification and the system for the
disposal of sewage or trade effluents. 'trade effluent'
includes any liquid, gaseous or solid substance which is
discharged from any premises used for carrying on any trade
or industry, other than domestic sewage. the state board is
also entrusted with the work of laying downstandards of
treatment of sewage and trade effluents to be discharged
into any particular stream taking into account the minimum
fair weather dilution available in that stream and the
tolerance limits of pollution permissible in the water of
the stream, after the discharge of such effluents. the state
board is also entrusted with the power of making application
to courts for restraining apprehended pollution of water in
streams or wells. notwithstanding the comprehensive
provisions contained in the act no effective steps appear to
have been taken by the state board so far to prevent the
discharge of effluents of the jajmau near kanpur to the
river ganga. the fact that such effluents are being first
discharged into the municipal sewerage does not absolve the
tanneries from being proceeded against under the provisions
of the law in force since ultimately the effluents reach the
river ganga from the sewerage system of the municipality.
in addition to the above act, parliament has also
passed the environment (protection) act, 1986 (29 of 1986)
which has been brought into force throughout india with
effect from november 19, 1986. section 3 of this act confers
power on the central government to take all such measures as
it deems necessary or expedient for the purpose of
protecting and improving the quality of the environment and
preventing, controlling and abating environmental pollution.
'environment' includes water, air and land and the inter-
relationship which exists among and between water, air and
land and human beings, other living creatures, plants,
micro-organism and property. (vide section 2(a) of the
environment (protection) act, 1986). under section 3(2)(iv)
of the said act the central government may lay down
standards for emission or discharge of environmental
pollutants from various sources whatsoever. notwithstanding
anything contained in any other law but subject to the
provisions of the environment (protection) act, 1986, the
central government may under section s of the
290
act, in the exercise of its powers and performance of its
functions under that act issue directions in writing to any
person, officer or authority and such authority is bound to
comply with such directions. the power to issue directions
under the said section includes the power to direct the
closure, prohibition or regulation of any industry,
operation or process or stoppage or regulation of the supply
of electricity or water or any other service. section 9 of
the said act imposes a duty on every person to take steps to
prevent or mitigate the environmental pollution. section 15
of the said act contains provisions relating to penalties
that may be imposed for the contravention of any of the
provisions of the said act or directions issued thereunder.
it is to be noticed that not much has been done even under
this act by the central government to stop the grave public
nuisance caused by the tanneries at jajmau, kanpur.
all the tanneries at jajmau, kanpur which were
represented by counsel, except respondent nos. 87 and 89
have relied upon a common counter-affidavit filed by them
and their case is argued by shri s.k. dholakia and shri
mukul mudgal. respondent no. 87 is represented by shri r.p.
gupta and respondent no. 89 is represented by shri p.
narasimhan. there is not much dispute on the question that
the discharge of the trade effluents from these tanneries
into the river ganga has been causing considerable damage to
the life of the people who use the water of the river ganga
and also to the aquatic life in the river. the tanneries at
jajmau in kanpur have themselves formed an association
called jajmau tanners pollution control association with the
objects among others:
(1) to establish, equip and maintain laboratories,
workshop, institutes, organisations and factories for
conducting and carrying on p experiments and to provide
funds for the main objects of the company.
(2) to procure and import wherever necessary the
chemicals etc. for the purpose of pollution control in
tanning industries.
(3) to set up and maintain common effluent treatment
plant for member tanners in and around jajmau.
(4) to make periodical charges on members for the
effluent treatment based on the benefit he/it derives from
time to time to meet the common expenses for maintenance,
replacement incurred towards effluent treatment.
291
in the fiscal plan for setting up common effluent
treatment plants for indian tanning industry-(march, 1986)
prepared by the committee constituted by the directorate
general of technical development (government of india) it is
observed thus:-
"leather industry is one of the three major
industries besides paper and textiles consuming
large quantities of water for processing of hides
and skins into leather naturally most of the water
used is discharged as wastewater. the wastewater
contains putrescible organic and toxic inorganic
materials which when discharged as such will
deplete dissolved oxygen content of the receiving
water courses resulting in the death of all
acquatic life and emanating foul odour. disposal
of these untreated effluents on to land will
pollute the ground water resources. discharging of
these effluents without treatment into public
sewers results in the choking of sewers.
realising the importance of keeping the
environment clean, the government of india has
enacted the water pollution control act (central
act 6 of 1974) and almost all the state government
have adopted the act and implementing the act by
forming the pollution control boards in their
respective states. the pollution control boards
have been insisting that all industries have to
treat their effluents to the prescribed standards
and leather industry is no exception to this rule.
tanneries situated all over the country have been
faced with the problem of treating their
effluents. seized with the problem of finding out
a solution, the central leather research
institute, madras has brought out a management
investment report (clri core committee report) as
early as 1976 which contains 14 flow sheets
indicating the treatment technologies for various
types of leather processing techniques, quantity
of effluents etc. including the cost of
treatment."
a monograph entitled 'treatment technology of tannery
effluents' prepared by s. rajamani, w. madavakrishna and g.
thyagarajan of the central leather research institute,
adyar, madras states that generally the wastewater from beam
house process namely soaking, liming, deliming etc. are
highly alkaline containing decomposing organic matter, hair,
lime sulphide etc. and is nearly ten times as strong as
domestic sewage and refers to the various methods
292
by which the effluents of the tanneries could be treated
before their discharge into any river. they recommend four
types of wastewater treatment technology sofar as the
tanneries are concerned -1) segregation or mixing of
suitable sectional waste water from different processes; (2)
primary treatment; (3) secondary biological treatment; and
(4) disposal of solid wastes from the treatment system. the
said monograph explains the work at the primary treatment
unit thus:-
"the primary treatment units principally comprise
of coarse screens, two numbers of settling tanks
and sludge drying beds. the settling tank, each of
about 1-2 days capacity acts as an equalisation-
cum-setting tank as well. as an alternative,
clarifier can be provided in place of settling
tank for treating higher capacity effluents.
depending on the quality of composite effluent,
addition of neutralising chemicals like lime,
alum, ferric chloride etc. would be required for
effective precipitation of chromium and removal of
suspended solids in the sedimentation process. the
sludge from the settling tanks and clarifier is
removed and dried on sludge drying beds made up of
filtering media gravel, sand and supporting
masonary structure. for operational reasons,
sludge drying beds are divided into four or more
compartments. the dried sludge from the sludge
drying beds can be used as manure or for landfill
if it is vegetable tannery waste. in case of
chrome tannery waste, the dried sludge should be
buried or disposed off suitably as per the
directions of regulatory agencies and local
bodies. "
the secondary treatment units are explained in the said
monograph thus:
"the pre-treated effluent needs suitable
secondary biological treatment to meet the
pollution control standards. the general
biological treatment units which can be adopted
under indian conditions are anaerobic lagoon,
aerated lagoon, extended aeration systems like
oxidation ditch, activated sludge process etc.
anaerobic lagoon is a simple anaerobic
treatment unit suitable for effluents with high
bod like vegetable tannery (raw to e. 1)
wastewater. in depth of the lagoon varies from 3-5
metres and detention time from l0-20 days
293
depending upon the pollutional load and
atmospheric conditions. this is an open type
digester with no provision for gas collection. no
power is required for this system and its
performance is proved to be efficient in south
indian conditions.
anaerobic contract filter is also an
anaerobic treatment unit. this is a closed tank
type unit made up of r.c.c. or masonry structure
 filled up with media like broken granite stones
etc. this unit occupies less land area since the
detention time is about 1-2 days only. this system
is reported to be efficient for treating high
organic load, but the capital cost would be
comparatively high.
aerated lagoon is a shallow water tight pond
of about 2-3 metres depth with a detention time of
about 4-6 days. fixed or floating type surface
aerators are provided to transfer oxygenfrom
atmospheric air to the effluent for biological
treatment using micro-organisms under aerobic
conditions. the system is suitable for treating
low organic load.
extended aeration systems like 'activated
sludge process' and 'oxidation ditch' are the
improved aerobic biological treatment systems
occupying less land area since the detention
time/capacity would be only about 1-2 days. these
units require secondary settling tank and sludge
recirculation arrangements. extended aeration
systems are proved to be efficient. the
operational and maintenance cost is comparatively
high for smaller installations, but economical for
treatment capacity of 150 m3 and above per day. "
a study of the conditions prevailing at jajmau, kanpur
was made by the sub-committee on effluent disposal
constituted by the development council forleather and
leather goods industries along with the various tanneries
situated in some other parts of india and in its report
submitted in april, 1984, the sub-committee has observed in
the case of the tanneries at jajmau, kanpur thus:-
"in the case of jajmau, kanpur, the committee
visited few tanneries where the effort has been
made to have primary treatment of the effluent
before it is dis-
294
charged to the common drain/the river ganges.
there are 60 tanneries in jajmau which will be
covered under joint effluent disposal. the total
production is to the tune of 12000 hides with a
total discharge of 5 million litres per day. the
state government has taken appropriate steps in
preparation of the feasibility report under the
guidance of u.p. pollution control board. this
proposal was also supported by central pollution
board, delhi by sharing the total fee of rs.80,000
to be paid to the public health engineering
consultancy, bombay which has prepared the report
with the help of iit, bombay. the report suggests
that each tannery should make arrangement for the
 primary treatment of their effluent and then it
will be discharged into common treatment plant."
there is a reference to the jajmau tanneries in 'an
action plan for prevention of pollution of the ganga'
prepared by the department of environment, government of
india in the year 1985, which is as under:-
"1.1 the ganga drains eight states himachal
pradesh, punjab, haryana, uttar pradesh,
rajasthan, madhya pradesh, bihar, west bengal and
the union territory of delhi. it is also the most
important river of india and has served as the
cradle of indian civilization. several major
pilgrim centres have existed on its banks for
centuries and millions of people come to bathe in
the river during religious festivals, especially
the kumbhs of haridwar and allahabad. many towns
on the ganga, e.g., kanpur. allahabad, patna and
calcutta have very large populations and the river
also serves as the source of water supply for
these towns. the ganga is, however, being grossly
polluted especially near the towns situated on its
banks. urgent steps need to be taken to prevent
this pollution and restore the purity of river
water.
2.0. sources of pollution
2.1 the main sources of pollution of the ganga are
the following:-
urban liquid waste (sewage, storm drainage
mixed with sewage, human, cattle and kitchen
wastes carried by drains etc. )
295
industrial liquid waste a
surface run-off of cultivated land where
cultivators use chemical fertilisers, pesticides,
insecticides and such manures the mixing of which
may make the river water unsafe for drinking and
bathing.
surface run-off from areas onwhich urban
solid wastes are dumped
surface run-off from areas on which
industrial solid wastes are dumped
.........................................
4.4.12 effluent from industries:
under the laws of the land the responsibilty
for treatment of the industrial effluents is that
of the industry. while the concept of 'strict
liability' should be adhered to in some cases,
circumstances may require that plans for sewerage
and treatment systems should consider industrial
effluents as well. clusters of small industries
located in a contiguous area near the river bank
 and causing direct pollution to the river such as
the tanneries in jajmau in kanpur is a case in
point. in some cases, waste waters from some
industrial units may have already been connected
to the city sewer and, therefore, merit treatment
along with the sewage in the sewage treatment
plant. it may also be necessary in some crowded
areas to accept wastewaters of industries in a
city sewer to be fed to the treatment plant,
provided the industrial waste is free from heavy
metals, toxic chemicals and is not abnormally
acidic or alkaline.
in such circumstances, scheme proposals have
to carefully examine the case of integrating or
segregating industrial wastes for purposes of
conveyance and treatment as also the possibilities
for appointment of capital and operating costs
between the city authorities and the industries
concerned." (emphasis added)
appearing on behalf of the department of environment,
(government of india, shri b. dutta the learned ist
additional h
296
solicitor general of india placed before us a memorandum
explaining the existing situation at jajmau area of kanpur.
it reads thus:
"status regarding construction of treatment
facilities for treatment of wastes from tanneries
in jajmau area of kanpur.
1. about 70 small, medium and large tanneries
are located in jajmau area of kanpur. on an
average they generate 4.5 mld of waste water.
2. under the existing laws, tanneries like
other industries are expected to provide treatment
of their effluents to different standards
depending on whether these are discharged into
stream or land. it is the responsibility of the
industry concerned to ensure that the quality of
the wastewater conforms to the standards laid down
3. from time to time, tanneries of kanpur
have re presented that due to lack of physical
facilities, technical knowhow and funds, it has
not been possible to install adequate treatment
facilities.
4. jajmau is an environmentally degraded area
of kanpur. the location of numerous tanneries in
the area is a major cause of the degradation.
civic facilities for water supply, sanitation,
solid waste removal etc. are also highly
inadequate. because the area abuts the ganga
river, its pollution affects the river quality as
 well. accordingly, under the ganga action plan an
integrated sanitation project is being taken up
for the jajmau area. some aspects of theplan
relate to tannery wastes as follows:
(i) the medium and large units will have to
up pre treatment facilities to ensure that the
standard of sewage discharged into the municipal
sewer also conform to the standards laid down.
scientific institutions such as central leather
research institute are looking into the
possibility of pretreatment including recovery of
materials such as chromium. the setting up of pre-
treatment facility in the respective units will be
the responsibility of the individual units
concerned. the ganga project directorate as part
of the ganga action plan, will play a facilitative
role to
297
demonstrate application of modern technologies for
cost a effective pre-treatment which the small
tanners can afford.
(ii) since the wastes will be ultimately
discharged into the river, the waste will have to
further conform to the standards laid down for
discharge into the stream. for this purpose, it
will be necessary to treat the waste further and
as part of the ganga action plan a treatment plant
will be constructed for this purpose utilising
some advanced processes. it is also proposed to
combine the domestic waste with the industrial
waste conveyed through the industrial sewer which
will then be treated in a treatment plant
(iii) it is estimated that cost of this
proposed sewage treatment facility which will
treat the waste from the domestic sources and the
pretreated wastes from tanneries will be about
rs.2.5 crores. it will have a capacity of 25 mld
and the first demonstration module of about 5 mld
is expected to be installed in early 1988-89.
necessary work for designing of the plant has
already been initiated and the infrastructure
facilities such as availability of land, soil
testing etc. have also been ensured. tender
specifications are being provided and it is
expected that the tenders will be floated sometime
in october 87. it is expected that in the combined
treatment facility of 25 mld, about 20 mld will be
from the domestic sources and 5 mld will be from
the tanneries after pretreatment in the region."
in the counter-affidavit filed on behalf of the
hindustan chambers of commerce, of which 43 respondents are
members it is admitted that the tanneries discharge their
trade effluents into the sewage nullah which leads to the
municipal sewage plant before they are thrown into the river
ganga. it is not disputed by any of the respondents that the
water in the river ganga is being polluted grossly by the
effluent discharged by the tanneries. we are informed that
six of the tanneries have already set up the primary
treatment plants for carrying out the pre-treatment of the
effluent before it is discharged into the municipal sewerage
which ultimately leads to the river ganga. about 14 of the
tanneries are stated to be engaged in the construction of
the primary treatment plants. it is pleaded on behalf of the
rest of the tanneries who are the members of the hindustan
chambers of commerce and three other tanneries represented
by shir mukul mudgal that if some time is given to them to
establish the pre-treatment plants they would h
298
do so. lt is, however, submitted by all of them that it
would not be possible for them to have the secondary system
for treating wastewater as that would involve enormous
expenditure which the tanneries themselves would not be able
to meet. it is true that it may not be possible for the
tanneries to establish immediately the secondary system
plant in view of the large expenditure involved but having
regard to the adverse effect the effluents are having on the
river water, the tanneries at jajmau, kanpur should, at
least set up of the primary treatment plants and that is the
minimum which the tanneries should do in the circumstances
of the case. in the counter-affidavit filed on behalf of the
hindustan chamber of commerce it is seen that the cost of
pretreatment plant for a 'a' class tannery is rs.3,68,000,
the cost of the plant for a 'b' class tannery is rs.2,30,000
and the cost of the plant for 'c' class tannery is rs.50,000
this cost does not appear to be excessive. the financial
capacity of the tanneries should be considered as irrelevant
while requiring them to establish primary treatment plants.
just like an industry which cannot pay minimum wages to its
workers cannot be allowed to exist a tannery which cannot
set up a primary treatment plant cannot be permitted to
continue to be in existence for the adverse effect on the
public at large which is likely to ensue by the discharging
of the trade effluents from the tannery to the river ganga
would be immense and it will outweigh any inconvenience that
may be caused to the management and the labour employed by
it on account of its closure. moreover, the tanneries
involved in these cases are not taken by surprise. for
several years they are being asked to take necessary steps
to prevent the flow of untreated wastewater from their
factories into the river. some of them have already complied
with the demand. it should be remembered that the effluent
discharged from a tannery is ten times noxious when compared
with the domestic sewage water which flows into the river
from any urban areas on its banks. we feel that the
tanneries at jajmau, kanpur cannot be allowed to continue to
carry on the industrial activity unless they take steps to
establish primary treatment plants. in cases of this nature
this court may issue appropriate directions if it finds that
the public nuisance or other wrongful act affecting or
likely to affect the public is being committed and the
statutory authorities who are charged with the duty to
prevent it are not taking adequate steps to rectify the
grievance. for every breach of a right there should be a
remedy. it is unfortunate that a number of tanneries at
jajmau even though they are aware of these proceedings have
not cared even to enter appearance in this court to express
their willingness to take appropriate steps to establish the
pretreatment plants. so far as they are concerned an order
directing them to stop working their tanneries should be
passed.
299
we accordingly direct m/s. delight tannery (respondent 14),
m/s. hindustan tannery (respondent 15), m/s. primer allarmin
tannery (respondent 33), m/s. mahaboob tannery (respondent
37), m/s. popular tannery (respondent 38), m/s. standard
tannery (respondent 39), m/s. vikash tarmery (respondent
40), m/s. new golden tannery (respondent 41), m/s. d.d.
tannery (respondent 42), m/s. himalaya tannery (respondent
44), m/s. commercial industry (respondent 45), m/s. madina
tannery (respondent 46), m/s. kanpur tannery (respondent
48), m/s. new jab tannery (respondent 49), m/s. famous
tannery (respondent 50), m/s. glaxy tannery (respondent 53),
m/s. bengal tannery (respondent 56), m/s. chhangal tannery
(respondent 59), m/s.nadari tannery (respondent 63), m/s.
jajmau tanners (respondent 65), m/s. international tanning
industry (respondent 66), m/s. poorwanchal tanning industry
(respondent 70), m/s. navratan tanning (respondent 71), m/s.
haroou tannery (respondent 73), m/s. himalaya tanners
(respondent 76), m/s. r.a. traders (respondent 79, m/s. alam
tannery (respondent 83), m/s. g.t. tannery (respondent 84),
and m/s. awadh tannery (respondent 86) to stop the running
of their tanneries and also not to let out trade effluents
from their tanneries either directly or indirectly into the
river ganga without subjecting the trade effluents to a
pretreatment process by setting up primary treatment plants
as approved by the state board (respondent 8) with effect
from 1. l0.1987.
m/s. indian tanning industry (respondent 30), the u.p.
tannery (respondent 19), m/s. zaz tannery (respondent 28),
m/s. super tannery india ltd. (respondent 21), m/s. shewan
tannery (respondent 20), m/s. pioneer tannery (respondent
23), and m/s. m.k.j. corporation (respondent 89) who have
already put up the primary treatment plants may continue to
carry on production in their factories subject to the
condition that they should continue to keep the primary
treatment plants established by them in sound working order.
shri s.k. dholakia, learned counsel for the other
tanneries who are members of the hindustan chambers of
commerce and the other tanneries who have entered appearance
through shri mukul mudgal submits that they will establish
primary treatment plants within six months and he further
submits that in the event of their not completing the
construction of the primary treatment plants as approved by
the state board (respondent 8) and bringing them into
operation within the period of six months the said tanneries
will stop carrying on their business. we record the
statement made by the learned counsel and grant them time
till 31.3.1988 to set up the primary treatment plants. if
300
any of these tanneries does not set up a primary treatment
plant within 31.3.1988 it is directed to stop its business
with effect from 1.4.1988.
we issue a direction to the central government, the
uttar pradesh board, established under the provisions of the
water (prevention and control of pollution) act, 1974 and
the district magistrate, kanpur to enforce our order
faithfully. copies of this order shall be cent to them for
information
the case is adjourned to 27th october, 1987 to consider
the case against the municipal bodies in the state of uttar
pradesh having jurisdiction over the areas through which the
river ganga is passing.
singh, j. i respectfully agree with every word what my
learned brother venkataramiah, j. has stated in the proposed
order and the directions issued by that order. however, i
wish to add few words.
the river ganga is one of the greatest rivers of the
world, although its entire course is only 1560 miles from
its source in himalaya to the sea. there are many rivers
larger in shape and longer in size but no river in the world
has been so great as the ganga. it is great because to
millions of people since centuries it is the most sacred
river. it is called "sursari" river of the gods,
'patitpawani' purifier of all sins and 'ganga ma' mother
ganges. to millions of hindus, it is the most sacred, most
venerated river on earth. according the hindu belief and
mythology to bathe init, is to wash away guilt, to drink
the water, having bathed in it, and to carry it away in
containers for those who may have not had the good fortune
to make the pilgrimage, to it, is meritorious. to be
cremated on its banks, or to die there, and to have one's
ashes cast on its waters, is the wish of every hindu. many p
saints and sages have persued their quest for knowledge and
enlightenment on the banks of the river ganga. its water has
not only purified the body and soul of the millions but it
has given fertile land to the country in uttar pradesh and
bihar. ganga has been used as means of water transport for
trade and commerce. the indian civilization of the northern
india thrived in the plains of ganga and most of the
important towns and places of pilgrimage are situated on its
banks. the river ganga has been part of hindu civilization.
pt. jawahar lal nehru who did not consider himself a devout
hindu gave expression to his feelings for the ganga that is
to be found in his will and testament, a short extract from
which is as under:
"my desire to have a handful of my ashes thrown
into the
301
ganga at allahabad has no religious significance, so
far as i am concerned. i have no religious sentiment in
the matter. i have been attached to the ganga and the
jamuna rivers in allahabad ever since my childhood and,
as i have grown older, this attachment has also grown.
i have watched their varying moods as the seasons
changed, and have often thought of the history and myth
and tradition and song and story that have become
attached to them through the long ages and become part
of their flowing waters. the ganga, especially, as the
river of india, beloved of her people, round which are
intertwined her racial memories, her hopes and fears,
her songs of triumph, her victories and her defeats.
she has been a symbol of india's age-long culture and
civilization, ever-changing, ever-flowing, and yet ever
the same ganga. she reminds me of the snow-covered
peaks and the deep valleys of the himalayas, which i
have loved so much, and of the rich and vast plains
below, where my life and work have been cast."
the river ganga is the life line of millions of people
of india, indian culture and civilization has grown around
it. this great river drains of eight states of india,
himachal pradesh, punjab, haryana, uttar pradesh, rajasthan,
madhya pradesh, bihar and west bengal. the ganga has always
been an integral part of the nation's history, culture and
environment. it has been the source of sustenance of the
millions of people who have lived on its banks from time
immemorial.
millions of our people bathe in the ganga drink its
water under an abiding faith and belief to purify themselves
and to achieve moksha release from the cycle of birth and
death. it is tragic that the ganga, which has since time
immemorial, purified the people is being polluted by man in
numerous ways, by dumping of garbage, throwing carcass of
dead animals and discharge of effluents. scientific
investigations and survey reports have shown that the ganga
which serves one-third of the india's population is polluted
by the discharge of municipal sewage and the industrial
effluents in the river. the pollution of the river ganga is
affecting the life, health, and ecology of the indo-gangetic
plain. the government as well as parliament both have taken
a number of steps to control the water pollution, but
nothing substantial has been achieved. i need not refer to
those steps as my learned brother has referred to them in
detail. no law or authority can succeed in removing the
pollution unless the people cooperate. to my mind, it is the
sacred duty of all those who reside or carry on business
around
302
the river ganga to ensure the purity of ganga. tanneries at jajmau area near kanpur
have been polluting the ganga in a big way. this court issued notices to them but in
spite of notice many industrialists have notbothered either to respond to the notice
or to take elementary steps for the treatment of industrial effluent before
discharging the same into the river. we are therefore issuing the directions for
the closure of those tanneries which have failed to take minimum steps
required for the primary treatment of industrial effluent. we are conscious
that closure of tanneries may bring unemployment, loss of revenue, but life,
health and ecology have greater importance to the people.
n.p.v.
303
petitioner:
m.c. mehta and anr.

vs.

respondent:
union of india & ors.

date of judgment20/12/1986

bench:
bhagwati, p.n. (cj)
bench:
bhagwati, p.n. (cj)
misra rangnath
oza, g.l. (j)
dutt, m.m. (j)
singh, k.n. (j)

citation:
1987 air 1086 1987 scr (1) 819
1987 scc (1) 395 jt 1987 (1) 1
1986 scale (2)1188
citator info :
f 1989 sc1642 (24)
rf 1990 sc 273 (28,43)
e&d 1992 sc 248 (13,14,15,16,28,100)
act:
constitution of india 1950--articles 12 & 21--private
corporation-engaged in industry vital to public interest
with potential to affect life and health of people--whether
'other authority'--extent of availability of article 21.
article 32--jurisdiction and power of court--not only
injunctive in ambit--remedial in scope and provides relief
for infringement of fundamental right--power to award com-
pensation.
public interest litigation--maintainability of--whether
letters addressed even to an individual judge
entertainable--whether preferred form of address
applicable--whether letters to be supported by
affidavits--hyper-technical approach to be avoided by the
court--court must look at the substance and not the
form--court's power to collect relevant material and to
appoint commissions.
law of torts--liability of an enterprise engaged in a
hazardous and inherently dangerous industry for occurrence
of accident--strict and absolute--quantum of compensation
payable for harm caused--determination of--rule laid in
rylands v. fletcher--whether applicable in india.
jurisprudence--law--should keep pace with changing
socioeconomic norms---where a law of the past does not fit
in to the present context, court should evolve new law.
interpretation of constitution--creative and innovative
interpretation in consonance with human rights jurisprudence
emphasised.
interpretation of statutes--foreign case law--supreme
court of india not bound to follow.

headnote:
the petitioners, in this writ petition under art. 32,
sought a direction for closure of the various units of
shriram foods & fertilizers
820
industries on the ground that they were hazardous to the
community. during the pendency of the petition, there was
escapeof oleum gas from one of the units of shriram. the
delhi legal aid and advice board and the delhi bar associa-
tion filed applications for award of compensation to the
persons who had suffered harm on account of escape of oleum
gas.
a bench of three hon'ble judges while permitting shriram
to restart its power plant as also other plants subject to
certain conditions, referred the applications for compensa-
tion to a larger bench of five judges because issues of
great constitutional importance were involved, namely, (1)
what is the scope and ambit of the jurisdiction of the
supreme court under art. 32 since the applications for
compensation are sought to be maintained under that article;
(2) whether art. 21 is available against shriram which is
owned by delhi cloth mills limited, a public company limited
by shares and which is engaged in an industry vital to
public interest and with potential to affect the life and
health of the people; and (3) what is the measure of liabil-
ity of an enterprise which is engaged in an hazardous or
inherently dangerous industry, if by reason of an accident
occurring in such industry, persons die or are injured. does
the rule in rylands v. fletcher, (1866 law report 1 excheq-
uer 265) apply or is there any other principle on which the
liability can be determined.
disposing of the applications,
held: 1. the question whether a private corporation like
shriram would fall within the scope and ambit of art. 12 so
as to be amenable to the discipline of art. 21 is left for
proper and detailed consideration at a later stage if it
becomes necessary to do so. [844f-g]
rajasthan electricity board v. mohan lal, [1967] 3 scr
377; sukhdev v. bhagwat ram, [1975] 1 scc 421; ramanna
shetty v. international airport authority, [1979] 3 scr
1014; ajay hasia v. khalid mujib, [1981] 2 scr 79; som
prakash v. union of india, [1981] 1 s.c.c. 449; appendix i
to industrial policy resolution, 1948; industries (develop-
ment and regulation) act, 1951; delhi municipal act, 1957
water (prevention and control of pollution) act, 1974; air
(prevention and control of pollution) act, 1981; eurasian
equipment and chemicals ltd. v. state of west bengal, [1975]
2 scr 674; rasbehari panda v. st.ate, [1969] 3 scr 374; kas-
turi lal reddy v. state of jammu & kashmir, [1980] 3 scr
1338, referred to.
821
2. the delhi legal aid and advice board is directed to
take up the cases of all those who claim to have suffered on
account of oleum gas and to file actions on their behalf in
the appropriate court for claiming compensation and the
delhi administration is directed to provide necessary funds
to the board for the purpose. [844g-h; 845a]
3.(i) where there is a violation of a fundamental or
other legal right of a person or class of persons who by
reason of poverty or disability or socially or economically
disadvantaged position cannot approach a court of law for
justice, it would be open to any public-spirited individual
or social action group to bring an action for vindication of
the fundamental or other legal right of such individual or
class of individuals and this can be done not only by filing
regular writ petition under art. 226 in the high court and
under art. 32 in this court, but also by addressing a letter
to the court. [828b-c; e-f]
 3.(ii) even if a letter is addressed to an individual
judge of the court, it should be entertained, provided of
course it is by or on behalf of a person in custody or on
behalf of a woman or a child or a class or deprived or
disadvantaged persons. [829b-c]
3.(iii) letters addressed to individual justices of this
court should not be rejected merely because they fail to
conform to the preferred form of address nor should the
court adopt a rigid stance that no letters will be enter-
tained unless they are supported by an affidavit. if the
court were to insist on an affidavit as a condition of
entertaining the letters the entire object and purpose of
epistolary jurisdiction would be frustrated because most of
the poor and disadvantaged persons will then not be able to
have easy access to the court and even the social action
groups will find it difficult to approach the court. [828h;
829b]
bandhua mukti morcha v. union of india & ors., [1984] 2
scr 67; s.p. gupta v. union of india, [1981] (suppl) scc 87
and union for democratic rights & ors. v. union of india,
[1983] 1 scr 456, relied
upon.
4.(i) article 32 does not merely confer power on this
court to issue direction, order or writ for enforcement of
the fundamental rights but it also lays a constitutional
obligation on this court to protect the fundamental rights
of the people and for that purpose this court has all inci-
dental and ancillary powers including the power to forge new
remedies and fashion new strategies designed to enforce the
fundamental rights. it is in realisation of this constitu-
tional obligation that this court
822
has, in the past, innovated new methods and strategies for
the purpose of securing enforcement of the fundamental
rights, particularly in the case of the poor and the disad-
vantaged who are denied their basic human rights and to whom
freedom and liberty have no meaning. [827f-828a]
4.(ii) the power of the court is not only injunctive in
ambit, that is, preventing the infringement of fundamental
right but it is also remedial in scope and provides relief
against a breach of the fundamental right already committed.
[830a-b]
4.(iii) the power of the court to grant such remedial
relief may include the power to award compensation in appro-
priate cases. the infringement of the fundamental right must
be gross and patent, that is incontrovertible and exfacie
glaring and either such infringement should be on a large
scale affecting the fundamental rights of a large number of
persons or it should appear unjust or unduly harsh or op-
pressing on account of their poverty or disability or so-
cially or economically disadvantaged position to require
the person or persons affected by such infringement to
initiate and pursue action in the civil courts. [830d; e-f]
4. (iv) ordinarily a petition under art. 32 should not
be used as a substitute for enforcement of the right to
claim compensation for infringement of a fundamental right
through the ordinary process of civil court. it is only in
exceptional cases that compensation may be awarded in a
petition under art. 32. [830f-g]
4.(v) the applications for compensation in the instant
writ petition are for enforcement of the fundamental right
to life enshrined in art. 21 of the constitution and while
dealing with such applications the court cannot adopt a
hyper-technical approach which would defeat the ends of
justice. the court must look at the substance and not the
form. therefore, the instant applications for compensation
are maintainable under art. 32. [827a-b]
bandhua mukti morcha v. union of india & ors., [1984] 2
scr 67; s.p. gupta v. union of india, [1981] (suppl.) scr
87; union for democratic rights & ors. v. union of india,
[1983] 1 scr 456 and rudul shah v. state of bihar, air 1983
sc 1086, relied upon.
5. the rule in rylands v. fletcher (supra) laid down a
principle of liability that if a person who brings on to his
land and collects and keeps there anything likely to do harm
and such thing escapes and does
823
damage to another, he is liable to compensate for the damage
caused. this rule applies only to non-natural user of the
land and it does not apply to things naturally on theland
or where the escape is due to an act of god and an act of a
stranger or the default of the person injured or where the
thing which escapes is present by the consent of the person
injured or in certain cases where there is statutory author-
ity. this rule evolved in the 19th century at a time when
all these developments of science and technology had not
taken place cannot afford any guidance in evolving any
standard of liability consistent with the constitutional
norms and the needs of the present day economy and social
structure. in a modern industrial society with highly de-
veloped scientific knowledge and technology where hazardous
or inherently dangerous industries are necessary to carry on
as part of developmental programme, the court need not feel
inhibited by this rule merely because the new law does not
recognise the rule of strict and absolute liability in case
of an enterprise engaged in hazardous and dangerous activi-
ty. [842d-g]
halsburry laws of england, vol. 45 para 1305, relied upon.
6.(i) law has to grow in order to satisfy the needs of
the fast changing society and keep abreast with the economic
developments taking place in the country. law cannot afford
to remain static. the court cannot allow judicial thinking
to be constricted by reference to the law as it prevails in
england or in any other foreign country. although this court
should be prepared to receive light from whatever source it
comes, but it has to build up its own jurisprudence, evolve
new principles and lay down new norms which would adequately
deal with the new problems which arise in a highly indus-
trialised economy. if it is found that it is necessary to
construct a new principle of law to deal with -an unusual
situation which has arisen and which is likely to arise in
future on account of hazardous or inherently dangerous
industries which are concommitant to an industrial economy
the court should not hesitate to evolve such principles of
liability merely because it has not been so done in england.
[843a-e]
6(ii) this court has throughout the last few years
expanded the horizon of art. 12 primarily to inject respect
for human-rights and social conscience in corporate struc-
ture. the purpose of expansion has not been to destroy the
raison d'etre of creating corporations but to advance the
human rights jurisprudence. the apprehension that including
within the ambit of art. 12 and thus subjecting to the
discipline of art. 21 those private corporations whose
activities have the potential of affecting the life and
health of the people, would deal a death blow to
824
the policy of encouraging and permitting private enterpre-
neurial activity is not well founded. it is through creative
interpretation and bold innovation that the human-rights
jurisprudence has been developed in india to a remarkable
extent and this forward march of the humanrights movement
cannot be allowed to be halted by unfounded apprehensions
expressed by status quoists. [841c-e]
7.(i) an enterprise which is engaged in a hazardous or
inherently dangerous industry which poses a potential threat
to the health and safety of the persons working in the
factory and residing in the surrounding areas owes an abso-
lute non-delegable duty to the community to ensure that if
any harm results to anyone, the enterprise must be held to
be under an obligation to provide that the hazardous or
inherently dangerous activity must be conducted with the
highest standards of safety and if any harm results on
account of such activity the enterprise must be absolutely
liable to compensate for such harm irrespective of the fact
that the enterprise had taken all reasonable care and that
the harm occurred without any negligence on its part.
[843e-g]
7.(ii) if the enterprise is permitted to carry on an
hazardous or inherently dangerous activity for its profit,
the law must presume that such permission is conditional on
the enterprise absorbing the cost of any accident arising on
account of such activity as an appropriate item of its
overheads. the enterprise alone has the resource to discover
and guard against hazards or dangers and to provide warning
against potential hazards. [844a-b]
7.(iii) the measure of compensation in such kind of
cases must be co-related to the magnitude and capacity of
the enterprise because such compensation must have a deter-
rent effect. the larger and more prosperous the enterprise,
the greater must be the amount of compensation payable by it
for the harm caused on account of an accident in carrying on
of the hazardous or inherently dangerous activity by the
enterprise. [844e-f]
8. the historical context in which the american doctrine
of state action evolved in the united states is irrelevant
for the purpose of indian courts, especially in view of art.
15(2) of the indian constitution. but, it is the principle
behind the doctrine of state aid, control and regulation so
impregnating a private activity as to give it the colour of
state action which can be applied to the limited extent to
which it can be indianised and harmoniously blended with
indian constitutional
825
jurisprudence. indian courts are not bound by the american
exposition of constitutional law. the provisions of american
constitution cannot always be applied to indian conditions
or to the provisions of indian constitution and whilst some
of the principles adumberated by the american decisions may
provide a useful guide, close adherence to those principles
while applying them to the provisions of the indian consti-
tution is not to be favoured, because the social conditions
in india are different. [840d-h]
ramanna shetty v. international airport authority,
[1979] 3 scr 1014; jackson v. metropolitan edison co., 42
l.ed. (2d) 477; air india v. nargesh mirza, [1982] 1 scr 438
and general electric co. maratha v. gilbert, 50 l.ed (2d)
343, relied upon.

judgment:
original jurisdiction: writ petition (civil) no. 12739
of 1985.
(under article 32 of the constitution of india.)
petitioner-in-person.
b. datta, additional solicitor general, a.b. diwan, f.s.
nariman, b.r.l. lyengar, hardev singh, hemant sharma, c.v.s.
rao, r.d. aggarwal, ms. s. relan, r.s. sodhi, s. sukumaran,
ravinder narain, d.n. mishra, aditya narayan, ms. lira
goswami, s. kachwaha, mohan, ravinder bana, k.c. dua, k.
kumaramangalam, o.c. jain and k.r.r. pilai for the respond-
ents.
raju ramachandran for the intervener.
soli j. sorabji for citizens action committee.
the judgment of the court was delivered by
bhagwati, cj. this writ petition under article 32 of the
constitution has come before us on a reference made by a
bench of three judges. the reference was made because cer-
tain questions of seminal importance and high constitutional
significance were raised in the course of arguments when the
writ petition was originally heard. the facts giving rise to
the writ petition and the subsequent events have been set
out in some detail in the judgment given by the bench of
three judges on 17th february 1986, and it is therefore not
necessary to reiterate the same. suffice it to state that
the bench of three judges
826
permitted shriram foods and fertiliser industries (hereinaf-
ter referred to as shriram) to restart its power plant as
also plants for manufacture of caustic chlorine including
its by-products and recovery plants like soap, glycerine and
technical hard oil, subject to the conditions set out in the
judgment. that would have ordinarily put an end to the main
controversy raised in the writ petition which was filed in
order to obtain a direction for closure of the various units
of shriram on the ground that they were hazardous to the
community and the only point in dispute which would have
survived would have been whether the units of shriram should
be directed to be removed from the place where they are
presently situate and relocated in another place where there
would not be much human habitation so that there would not
be any real danger to the health and safety of the people.
but while the writ petition was pending there was escape of
oleum gas from one of the units of shriram on 4th and 6th
december, 1985 and applications were filed by the delhi
legal aid & advice board and the delhi bar association for
award of compensation to the persons who had suffered harm
on account of escape of oleum gas. these applications for
compensation raised a number of issues of great constitu-
tional importance and the bench of three judges therefore
formulated the issues and asked the petitioner and those
supporting him as also shriram to file their respective
written submissions so that the court could take up the
hearing of these applications for compensation. when these
applications for compensation came up for hearing it was
felt that since the issues raised involved substantial
questions of law relating to the interpretation of articles
21 and 32 of the constitution, the case should be referred
to a larger bench of five judges and this is how the case
has now come before us.
mr. diwan, learned counsel appearing on behalf of shri-
ram raised a preliminary objection that the court should not
proceed to decide these constitutional issuessince there
was no claim for compensation originally made in the writ
petition and these issues could not be said to arise on the
writ petition. mr. diwan conceded that the escape of oleum
gas took place subsequent to the filing of the writ petition
but his argument was that the petitioner could have applied
for amendment of the writ petition so as to include a claim
for compensation for the victims of oleum gas but no such
application for amendment was made and hence on the writ
petition as it stood, these constitutional issues did not
arise for consideration. we do not think this preliminary
objection raised by mr. diwan is sustainable. it is undoubt-
edly true that the petitioner could have applied for amend-
ment of the writ petition so as to include a claim for
compensation but merely because he did
827
not do so, the applications for compensation made by the
delhi legal aid & advice board and the delhi bar association
cannot be thrown out. these applications forcompensation
are for enforcement of the fundamental right to life en-
shrined in article 21 of the constitution and while dealing
with such applications, we cannot adopt a hypertechnical
approach which would defeat the ends of justice. this court
has on numerous occasions pointed out that where there is a
violation of a fundamental or other legal right of a person
or class of persons who by reason of poverty or disability
or socially or economically disadvantaged position cannot
approach a court of law for justice, it would be open to any
public spirited individual or social action group to bring
an action for vindication of the fundamental or other legal
right of such individual or class of individuals and this
can be done not only by filing a regular writ petition but
also by addressing a letter to the court. if this court is
prepared to accept a letter complaining of violation of the
fundamental right of an individual or a class of individuals
who cannot approach the court for justice, there is no
reason why these applications for compensation which have
been made for enforcement of the fundamental right of the
persons affected by the oleum gas leak under article 21
should not be entertained. the court while dealing with an
application for enforcement of a fundamental right must look
at the substance and not the form. we cannot therefore
sustain the preliminary objection raised by mr. diwan.
the first question which requires to be considered is as
to what is the scope and ambit of the jurisdiction of this
court under article 32 since the applications for compensa-
tion made by the delhi legal aid and advice board and the
delhi bar association are applications sought to be main-
tained under that article. we have already had occasion to
consider the ambit and coverage of article 32 in the bandhua
mukti morcha v. union of india & ors., [1984] 2 scr 67 and
we wholly endorse what has been stated by one of us namely,
bhagwati, j. as he then was in his judgment in that case in
regard to the true scope and ambit of that article. it may
now be taken as well settled that article 32 does not merely
confer power on this court to issue a direction, order or
writ for enforcement of the fundamental rights but italso
lays a constitutional obligation on this court to protect
the fundamental rights of the people and for that purpose
this court has all incidental and ancillary powers including
the power to forge new remedies and fashion new strategies
designed to' enforce the fundamental rights. it is in reali-
sation of this constitutional obligation that this court has
in the past innovated new methods and strategies for the
purpose of securing enforcement of the fundamental rights,
828
particularly in the case of the poor and the disadvantaged
who are denied their basic human rights and to whom freedom
and liberty have no meaning.
thus it was in s,p. gupta v. union of india, [1981]
supp. scc 87 that this court held that "where a legal wrong
or a legal injury is caused to a person or to a determinate
class of persons by reason of violation of any constitution-
al or legal right or any burden is imposed in contravention
of any constitutional or legal provision or without authori-
ty of law or any such legal wrong or legal injury or illegal
burden is threatened, and any such person or determinate
class of persons is by reason of poverty or disability or
socially or economically disadvantaged position unable to
approach the court for relief, any member of the public or
social action group can maintain an application for an
appropriate direction, order or writ in the high court under
article 226 and in case of breach of any fundamental right
of such person or class of persons, in this court under
article 32 seeking judicial redress for the legal wrong or
injury caused to such person or determinate class of per-
sons." this court also held in s.p. gupta's case (supra) as
also in the people's union for democratic rights and ors. v.
union of india, [1983] 1 scr 456 and in babdhua mukti mor-
cha's case (supra) that procedure being merely a hand-maden
of justice it should not stand in the way of access to
justice to the weaker sections of indian humanity and there-
fore where the poor and the disadvantaged are concerned who
are barely eking out a miserable existence with their sweat
and toil and who are victims of an exploited society without
any access to justice, this court will not insist on a
regular writ petition and even a letter addressed by a
public spirited individual or a social action group acting
probono publico would suffice to ignite the jurisdiction of
this court. we wholly endorse this statement of the law in
regard to the broadening of locus standi and what-has come
to be known as epistolary jurisdiction.
we may point out at this stage that in bandhua mukti
morcha's case (supra) some of us apprehending that letters
addressed to individual justices may involve the court in
frivolous cases and that possibly the view could be taken
that such letters do not invoke the jurisdiction of the
court as a whole, observed that such letters should not be
addressed to individual justices of the court but to the
court or to the chief justice and his companion judges. we
do not think that it would be right to reject a letter
addressed to an individual justice of the court merely on
the ground that it is not addressed to the court or to the
chief justice and his companion judges. we must not forget
that
829
letters would ordinarily be addressed by poor and disadvan-
taged persons or by social action groups who may not know
the proper form of address. they may know only a particular
judge who comes from their state and they may therefore
address the letters to him. if the court were to insist that
the letters must be addressed to the court, or to the chief
justice and his companion judges, it would exclude from the
judicial ken a large number of letters and in the result
deny access to justice to the deprived and vulnerable sec-
tions of the community. we are therefore of the view that
even if a letter is addressed to an individual judge of the
court, it should be entertained, provided of course it is by
or on behalf of a person in custody or on behalf of a woman
or a child or a class of deprived or disadvantaged persons.
we may point out that now there is no difficulty in enter-
taining letters addressed to individual justice of the
court, because this court has a public interest litigation
cell to which all letters addressed to the court or to the
individual justices are forwarded and the staff attached to
this cell examines the letters and it is only after scrutiny
by the staff members attached to this cell that the letters
are placed before the chief justice and under his direction,
they are listed before the court. we must thereforehold
that letters addressed to individual justice of the court
should not be rejected merely because they fail to conform
to the preferred form of address. nor should the court adopt
a rigid stance that no letters will be entertained unless
they are supported by an affidavit. if the court were to
insist on an affidavit as a condition of entertaining the
letters the entire object and purpose of epistolary juris-
diction would be frustrated because most of the poor and
disadvantaged persons will then not be able to have easy
access to the court and even the social action groups will
find it difficult to approach the court. we may point out
that the court has so far been entertaining letters without
an affidavit and it is only in a few rare cases that it has
been found that the allegations made in the letters were
false. but that might happen also in cases where the juris-
diction of the court is invoked in a regular way:
 so far as the power of the court under article 32 to
gather relevant material bearing on the issues arising in
this kind of litigation, which we may for the sake of con-
venience call.social action litigation, and to appoint
commissions for this purpose is concerned, we endorse. what
one of us namely, bhagwati, j., as he then was, has said in
his judgment in bandhua mukti morcha's case (supra). we need
not repeat what has been stated in that judgment.' it has
our full approval.
we are also of the view that this court under article 32(1)
is free
830
to devise any procedure appropriate for the particular
purpose of the proceeding, namely, enforcement of a funda-
mental right and under article 32(2) the court has the
implicit power to issue whatever direction, order or writ is
necessary in a given case, including all incidental or
ancillary power necessary to secure enforcement of the
fundamental right. the power of the court is not only in-
junctive in ambit, that is, preventing the infringement of a
fundamental right, but it is also remedial in scope and
provides relief against a breach of the fundamental right
already committed vide bandhua mukti morcha's case (supra).
if the court were powerless to issue any direction, order or
writ in cases where a fundamental right has already been
violated, article 32 would be robbed of all its efficacy,
because then the situation would be that if a fundamental
right is threatened to be violated, the court can injunct
such violation but if the violator is quick enough to take
action infringing the fundamental right, he would escape
from the net of article 32. that would, to a large extent,
emasculate the fundamental right guaranteed under article 32
and render it impotent and futile. we must, therefore, hold
that article 32 is not powerless to assist a person when he
finds that his fundamental right has been violated. he can
in that event seek remedial assistance under article 32. the
power of the court to grant such remedial relief may include
the power to award compensation in appropriate cases. we are
deliberately using the words "in appropriate cases" because
we must make it clear that it is not in every case where
there is a breach of a fundamental right committed by the
violator that compensation would be awarded by the court in
a petition under article 32. the infringement of the funda-
mental right must be gross and patent, that is, incontro-
vertible and ex facie glaring and either suchinfringement
should be on a large scale affecting the fundamental rights
of a large number of persons, or it should appear unjust or
unduly harsh or oppressive on account of theft poverty or
disability or socially or economically, disadvantaged posi-
tion to require the person or persons affected by such
infringement to initiate and pursue action in the civil
courts. ordinarily, of course, a petition under article 32
should not be used as a substitute for enforcement of the
right to claim compensation for infringement of a fundamen-
tal right through the ordinary process of civil court. it is
only in exceptional cases of the nature indicated by us
above, that compensation may be awarded in a petition under
article 32. this is the principle on which this court award-
ed compensation in rudul shah v. state of bihar, (air1983
sc 1086). so also, this court awarded compensation to bhim
singh, whose fundamental right to personal liberty was
grossly violated by the state of jammu and kashmir. if we
make a fact analysis of the cases where compensation has
been
831
awarded by this court, we will find that in all the cases,
the fact of infringement was patent and incontrovertible,
the violation was gross and its magnitude was such as to
shock the conscience of the court and it would have been
gravely unjust to the person whose fundamental right was
violated, to require him to go to the civil court for claim-
ing compensation.
the next question which arises for consideration on
these applications for compensation is whether article 21 is
available against shriram which is owned by delhi cloth
mills limited, a public company limited by shares and which
is engaged in an industry vital to public interest and with
potential to affect the life and health of the people. the
issue of availability of article 21 against a private corpo-
ration engaged in an activity which has potential to affect
the life and health of the people was vehemently argued by
counsel for the applicants and shriram. it was emphatically
contended by counsel for the applicants, with the analogical
aid of the american doctrine of state action and the func-
tional and control test enunciated by this court in its
earlier decisions, that article 21 was available, as shriram
was carrying on an industry which, according to the govern-
ment's own declared industrial policies, was ultimately
intended to be carried out by itself, but instead of the
government immediately embarking on that industry, shriram
was permitted to carry it on under the active control and
regulation of the government. since the government intended
to ultimately carry on this industry and the mode of carry-
ing on the industry could vitally affect public interest,
the control of the government was linked to regulating that
aspect of the functioning of the industry which could vital-
ly affect public interest. special emphasis was laid by
counsel for the applicants on the regulatory mechanism
provided under the industries development and regulation
act, 1951 where industries are included in the schedule if
they vitally affect public interest. regulatory measures are
also to be found in the bombay municipal corporation act,
the air and water pollution control acts and now the recent
environment act, 1986. counsel for the applicants also
pointed to us the sizable aid in loans, land and other
facilities granted by the government to shriram in carrying
on the industry. taking aid of the american state action
doctrine, it was also argued before us on behalf of the
applicants that private activity, if supported, controlled
or regulated by the state may get so entwined with govern-
mental activity as to be termed state action and it would
then be subject to the same constitutional restraints on the
exercise of power as the state.
832
on the other hand, counsel for shriram cautioned against
expanding article 12 so as to bring within its ambit private
corporations. he contended that control or regulation of a
private corporations functions by the state under general
statutory law such as the industries development and regula-
tion act, 1951 is only in exercise of police power of regu-
lation by the state. such regulation does not convert the
activity of the private corporation into that of the state.
the activity remains that of the private corporation, the
state in its police power only regulates the manner in which
it is to be carried on. it was emphasised that control which
deems a corporation, an agency of the state, must be of the
type where the state controls the management policies of the
corporation, whether by sizable representation on the board
of management or by necessity of prior approval of the
government before any new policy of management is adopted,
or by any other mechanism. counsel for shriram also pointed
out the inappositeness of the state action doctrine to the
indian situation. he said that in india the control and
function test have been evolved in order to determine wheth-
er a particular authority is an instrumentality or agency of
the state and hence 'other authority' within the meaning of
article 12. once an authority is deemed to he 'other author-
ity' under article 12, it is state for the purpose of all
its activities and functions and the american functional
dichotomy by which some functions of an authority can be
termed state action and others private action, cannot oper-
ate here. the learned counsel also pointed out that those
rights which are specifically intended by the constitution
makers to be available against private parties are sopro-
vided in the constitution specifically such as articles 17,
23 and 24. therefore, to so expand article 12 as to bring
within its ambit even private corporations would be against
the scheme of the chapter on fundamental rights.
in order to deal with these rival contentions we think
it is necessary that we should trace that part of the devel-
opment of article 12 where this court embarked on the path
of evolving criteria by which a corporation could be termed
'other authority' under article 12.
 in rajasthan electricity board v. mohan lal, [1967] 3
scr 377 this court was called upon to consider whether the
rajasthan electricity board was an 'authority' within the
meaning of the expression 'other authorities' in article 12.
bhargava, j. who delivered the judgment of the majority
pointed out that the expression 'other authorities' in
article 12 would include all constitutional and statutory
authorities on whom powers are conferred by law. the learned
judge also said that if any body of persons has authority to
issue directions, the dis-
833
obedience of which would be publishable as a criminal of-
fence, that would be an indication that the concerned au-
thority is 'state'. shah, j., who delivered a separate
judgment agreeing with the conclusion reached by the majori-
ty, preferred to give a slightly different meaning to the
expression 'other authorities'. he said that authorities,
constitutional or statutory, would fail within the expres-
sion "other authorities" only if they are invested with the
sovereign power of the state, namely, the power to make
rules and regulations which have the force of law. the ratio
of this decision may thus be stated to be that a constitu-
tional or statutory authority would be within the expression
"other authorities" if it has been invested with statutory
power to issue binding directions to third parties, the
disobedience of which would entail penal consequences or it
has the sovereign power to make rules and regulations having
the force of law.
this test was followed by ray, c j, in sukhdev v. bhagat
ram, [1975] 1 scc 421. mathew, j. however, in the same case
propounded a broader test. the learned judge emphasised that
the concept of 'state' had undergone drastic changes in
recent years and today 'state' could not be conceived of
simply as a coercive machinery wielding the thunderbolt of
authority; rather it has to be viewed mainly as a service
corporation. he expanded on this dictum by stating that the
emerging principle appears to be that a public corporation
being an instrumentality or agency of the 'state' is subject
to the same constitutional limitations as the 'state' it-
self. the preconditions of this are two, namely, that the
corporation is the creation of the 'state' and that there is
existence of power in the corporation to invade the consti-
tutional rights of the individual. this court in ram anna
shetty v. international airport authority, [1979] 3 scr 1014
accepted and adopted the rational of instrumentality or
agencyof state put forward by mathew, j., and spelt out
certain criteria with whose aid such an inference could be
made. however, before we come to these criteria we think it
necessary to refer to the concern operating behind the
exposition of the broader test by justice mathew which is of
equal relevance to us today, especially considering the fact
that the definition under article 12 is. an inclusive and
not an exhaustive definition. that concern is the need to
curb arbitrary and unregulated power wherever and howsoever
reposed.
in ramanna d. shetty v. international airport authority
(supra) this court deliberating on the criteria on the basis
of which to determine whether a corporation is acting as
instrumentality or agency of government said that it was not
possible to formulate an all inclu-
834
sive or exhaustive test which would adequately answer this
question. there is no out and dried formulawhich would
provide the correct division of corporations into those
which are instrumentalities or agencies of government and
those which are not. the court said whilst formulating the
criteria that analogical aid can be taken from the concept
of state action as developed in the united states wherein
the u.s. courts have suggested that a private agency if
supported by extra-ordinary assistance given by the state
may be subject to the same constitutional limitations as the
state. it was pointed out that the state's general common-
law and statutory structure under which its people carry on
their private affairs, own property and enter into con-
tracts, each enjoying equality in terms of legal capacity,
is not such assistance as would transform private conduct
into state action. "but if extensive and unusual financial
assistance is given and the purpose of such assistance
coincides with the purpose for which the corporation is
expected to use the assistance and such purpose is of public
character, it may be a relevant circumstance supporting an
inference that the corporation is an instrumentality or
agency of the government".
on the question of state control, the court in r.d.
shetty's case (supra) clarified that some control by the
state would not be determinative of the question, since the
state has considerable measure of control under its police
power over all types of business organisations. but a find-
ing of state financial support plus an unusual degree of
control over the management and policies of the corporation
might lead to the characterisation of the operation as state
action.
whilst deliberating on the functional criteria namely,
that the corporation is carrying out a governmental func-
tion. the court emphasised that classification of a function
as governmental should not be done on earlier day percep-
tions but on what the state today views as an indispensable
part of its activities, for the state may deem it as essen-
tial to its economy that it owns and operate a railroad, a
mill or an irrigation system as it does to own and operate
bridges street lights or a sewage disposal plant. the court
also reiterated in r.d. shetty's case (supra) what was
pointed out by mathew, j. in sukhdev v. bhagatram that
"institutions engaged in matters of high public interest or
public functions are by virtue of the nature of the func-
tions performed government agencies. activities which are
too fundamental to the society are by definition too impor-
tant not to be considered government functions."
the above discussion was rounded off by the court in r.d.
835
shetty's case (supra) by enumerating the following five
factors namely, (1) financial assistance given by the state
and magnitude of such assistance (2) any other form of
assistance whether of the usual kind or extraordinary (3)
control of management and policies of the corporation by the
state-nature and extent of control (4) state conferred or
state protected monopoly status and (5) functions carried
out by the corporation, whether public functions closely
related to governmental functions, as relevant criteria for
determining whether a corporation is an instrumentality or
agencyof the state or not, though the court took care to
point out that the enumeration was not exhaustive and that
it was the aggregate or cumulative effect of all the rele-
vant factors that must be taken as controlling.
the criteria evolved by this court in ramanna shetty's
case (supra) were applied by this court in ajay hasia v.
khalid mujib, [1981] 2 scr 79 where it was further empha-
sised that:
"where constitutional fundamentals vital to the maintenance
of human rights are at stake, functional realism and not
facial cosmetics must be the diagnostic tool for constitu-
tional law must seek the substance and not the form. now it
is obvious that the government may through the instrumental-
ity or agency of natural persons or it may employ the in-
strumentality or agency of judicial persons to carry out its
functions. it is really the government which acts through
the instrumentality or agency of the corporation and the
juristic veil of corporate personality worn for the purpose
of convenience of management and administration cannot be
allowed to obliterate the true nature of the reality behind
which is the government ..... (for if the government
acting through its officers is subject to certain constitu-
tional limitations it must follow a fortiorari that the
government acting through the instrumentality or agency of a
corporation should be equality subject to the same limita-
tions".
on the canon of construction to be adopted for interpreting
constitutional guarantees the court pointed out:
".... constitutional guarantees ... should not be allowed
to be emasculated in their application by a narrow and con-
structed judicial interpretation. the courts should be
anxious to enlarge the scope and width of the fundamental
836
rights by bringing within their sweep every authority which
is an instrumentality or agency of the government or through
the corporate personality of which the government is acting,
so as to subject the government in all its myriad activi-
ties, whether through natural persons or through corporate
entities to the basic obligation of the fundamental rights."
in this case the court also set at rest the controversy as
to whether the manner in which a corporation is brought into
existence had any relevance to the question whether it is a
state instrumentality or agency. the court said that it is
immaterial for the purpose of determining whether a corpora-
tion is an instrumentality or agency of the state or not
whether it is created by a statute or under a statute: "the
inquiry has to be not as to how the juristic person is born
but why it has been brought into existence. the corporation
may be a statutory corporation created by statute or it may
be a government company or a company formed under the compa-
nies act, 1956 or it may be a society registered under the
societies registration act, 1860 or any other similar stat-
ute". it would come within the ambit of article 12, if it is
found to an instrumentality or agency of the state on a
proper assessment of the relevant factors.
it will thus be seen that this court has not permitted
the corporate device to be utilised as a barrier ousting the
constitutional control of the fundamental rights. rather the
court has held:
"it is dangerous to exonerate corporations from the
need to have constitutional conscience, and so that inter-
pretation, language permitting, which makesgovernmental
agencies whatever their main amenable to constitutional
limitations must be adopted by the court as against the
alternative of permitting them to flourish as an imperium in
imperio". som prakash v. union of india, [1981] 1 scc 449.
taking the above exposition as our guideline, we must
now proceed to examine whether a private corporation such as
shriram comeswithin the ambit of article 12 so as to be
amenable to the discipline of article 21.
in order to assess the functional role allocated to
private corporation engaged in the manufacture of chemicals
and fertilisers we need
837
to examine the industrial policy of the government and see
the public interest importance given by the state to the
activity carried on by such private corporation.
under the industrial policy resolution 1956 industries
were classified into three categories having regard to the
part which the state would play in each of them. the first
category was to be the exclusive responsibility of the
state. the second category comprised those industries which
would be progressively state owned and in which the state
would therefore generally take the initiative in establish-
ing new undertakings but in which private enterprise would
also be expected to supplement the effort of the state by
promoting and development undertakings either on its own or
with state participation. the third category would include
all the remaining industries and their future development
would generally be left to the initiative and enterprise of
the private sector. schedule b to the resolution enumerated
the industries.
appendix i to the industrial policy resolution, 1948
dealing with the problem of state participation in industry
and the conditions in which private enterprise should be
allowed to operate stated that there can be no doubt that
the state must play a progressively active role in the
development of industries. however under the present condi-
tions, the mechanism and resources of the state may not
permit it to function forthwith in industry as widely as may
be desirable. the policy declared that for some time to
come, the state could contribute more quickly to the in-
crease of national wealth by expanding its present activi-
ties wherever it is already operating and by concentrating
on new units of production in other fields.
on these considerations the government decided that the
manufacture of arms and ammunition, the production and
control of atomic energy and the ownership and management of
railway transport would be the exclusive monopoly of the
central government. the establishment of new undertakings in
coal, iron and steel, aircraft manufacture, ship building,
manufacture of telephone telegraph and wireless apparatus
and mineral oil were to be the exclusive responsibility of
the state except where in national interest the state itself
finds it necessary to secure the co-operation of private
enterprise subject to control of the central government.
the policy resolution also made mention of certain
basic industries of importance the planning and regulation
of which by tile cent-
838
ral government was found necessary in national interest.
among the eighteen industries so mentioned as requiring such
central control. heavy chemicals and fertilisers stood
included.
in order to carry out the objective of the policy reso-
lution the industries (development and regulation) act of
1951 was enacted which, according to its objects and rea-
sons, brought under central control the development and
regulation of a number of important industries the activi-
ties of which affect the country as a whole and the develop-
ment of which must be governed by economic factors of all
india import. section 2 of the act declares that it is
expedient in the public interest that the union should take
under its control the industries specified in the first
schedule. chemicals and fertilisers find a place in the
first schedule as items 19 and 18 respectively.
if an analysis of the declarations in the policy resolu-
tions and the act is undertaken, we find that the activity
of producing chemicals and fertilisers is deemed by the
state to be an industry of vital public interest, whose
public import necessitates that the activity should be
ultimately carried out by the state itself, in the interim
period with state support and under state control, private
corporations may also be permitted to supplement the state
effort. the argument of the applicants on the basis of this
premise was that in view of this declared industrial policy
of the state, even private corporations manufacturing chemi-
cals and fertilisers can be said to be engaged in activities
which are so fundamental to the society as to be necessarily
considered government functions. sukhdev v. bhagat ram,
ramanna shetty and ajay hasia (supra).
it was pointed out on behalf of the applicants that as
shriram is registered under the industries development and
regulation act 1951, its activities are subject to extensive
and detailed control and supervision by the government.
under the act a licence is necessary for the establishment
of a new industrial undertaking or expansion of capacity or
manufacture of a new article by an existing industrial
undertaking carrying on any of the scheduled industries
included in the first schedule of the act. by refusing
licence for a particular unit, the government can prevent
over concentration in a particular region or over-investment
in a particular industry. moreover, by its power to specify
the capacity in the licence it can also prevent over-devel-
opment of a particular industry if it has already reached
target capacity. section 18 g of the act empowers the gov-
ernment to control the supply, distribution, price etc. of
the articles manufactured by a scheduled
839
industry and under section 18a government can assume manage-
ment and control of an industrial undertaking engaged in a
scheduled industry if after investigation it is found that
the affairs of the undertaking are being managed in a manner
detrimental to public interest and under section 18aa in
certain emergent cases, take-over is allowed even without
investigation. since shriram is carrying on a scheduled
industry, it is subject to this stringent system of regis-
tration and licensing. it is also amenable. to various
directions that may be issued by the government from time to
time and it is subject to the exercise of the powers of the
government under sections 18a, and 18g.
shriram is required to obtain a licence under the facto-
ries act and is subject to the directions and orders of the
authorities under the act. it is also required to obtain a
licence for its manufacturing activities from the municipal
authorities under the delhi municipal act, 1957. it is
subject to extensive environment regulation under the water
(prevention and control) of pollution act, 1974 and as the
factory is situated in an air pollution control area, it is
also subject to the regulation of the air (prevention and
control of pollution) act, 1981. it is true that control is
not exercised by the government in relation to the internal
management policies of the company. however, the control is
exercised on all such activities of shriram which can jeop-
ardize public interest. this functional control is of spe-
cial significance as it is the potentiality of the fertiliz-
er industry to adversely affect the health and safety of the
community and its being impregnated with public interest
which perhaps dictated the policy decision of the government
to ultimately operate this industry exclusively and invited
functional control. along with this extensive functional
control, we find that shriram also receives sizable assist-
ance in the shape of loans and overdrafts running into
several crores of rupees from the government through various
agencies. moreover, shriram is engaged in the manufacture of
caustic soda, chlorine etc. its various units are set up in
a single complex surrounded by thickly populated colonies.
chlorine gas is admittedly dangerous to life and' health. if
the gas escapes either from the storage tank or from the
filled cylinders or from any other point in the course of
production, the health and wellbeing of the people living in
the vicinity can be seriously affected. thus shriram is
engaged in an activity which has the potential to invade the
right to life of large sections of people. the question is
whether these factors are cumulatively sufficient to bring
shriram within the ambit of article 12. prima facie it is
arguable that when the states' power as economic agent,
economic entrepreneur and allocator of economic benefits is
subject to the limitations of fundamental rights. (vide
840
eurasian equipment and chemicals ltd. v. state of west
bengal, (1975) 2 scr 674, rashbehari panda v. state, [1983]
3 scr 374, ramanna shetty v. international airport authori-
ty, (supra) and kasturilal reddy v. state of jammu & kash-
mir, [1980] 3 scr 1338) why should a private corporation
under the functional control of the state engaged in an
activity which is hazardous to the health and safety of the
community and is imbued with public interest and which the
state ultimately proposes to exclusively run under its
industrial policy, not be subject to the same limitations.
but we do not propose to decide this question and make any
definite pronouncement upon it for reasons which we shall
point out later in the course of this judgment.
we were during the course of arguments, addressed at
great length by counsel on both sides on the american doc-
trine of state action. the learned counsel elaborately
traced the evolution of this doctrine in its parent country.
we are aware that in america since the fourteenth amendment
is available only against the state, the courts, in order to
thwart racial discrimination by private parties, devised the
theory of state action under which it was held that wherever
private activity was aided, facilitated or supported by the
slate in a significant measure, such activity took the
colour of state action and was subject to the constitutional
limitations of the fourteenth amendment. this historical
context in which the doctrine of state action evolved in the
united states is irrelevant for our purpose especially since
we have article 15(2) in our constitution. but it is the
principle behind the doctrine of state aid, control and
regulation so impregnating a private activity as to give it
the colour of state action that is of interest to us and
that also to the limited extent to which it can be indian-
ized and harmoniously blended with our constitutional juris-
prudence. that we in no way consider ourselves bound by
american exposition of constitutional law is well demos-
trated by the fact that in ramanna shetty, (supra) this
court preferred the minority opinion of douglas, j. in
jackson v. metropolitan edison company, 42 l.ed. (2d) 477 as
against the majority opinion of rehnquist, j. and again in
air india v. nargesh mirza, [1982] 1 scr 438 this court
whilst preferring the minority view in general electric
company martha v. gilbert, 50 l.ed. (2d) 343 said that the
provisions of the american constitution cannot always be
applied to indian conditions or to the provisions of our
constitution and whilst some of the principles adumbrated by
the american decisions may provide a useful guide, close
adherence to those principles while applying them to the
provisions of our constitution is not to be favoured, be-
cause the social conditions in our country are different.
the learned counsel for shriram stressed the inapposite-
841
ness of the doctrine of state action in the indian context
because, according to him, once an authority is brought
within the purview of article 12, it is state for all in-
tents and purposes and the functional dichotomy in america
where certain activities of the same authority may be cha-
raterised as state action and others as private action
cannot be applied here in india. but so far as this argument
is concerned, we must demur to it and point out that it is
not correct to say that in india once a corporation is
deemed to be 'authority', it would be subject to the consti-
tutional limitation of fundamental rights in the performance
of all its functions and that the appellation of 'authority'
would stick to such corporation, irrespective of the func-
tional context.
before we part with this topic, we may point out that
this court has throughout the last few years expanded the
horizon of article 12 primarily to inject respect for
human-rights and social conscience in our corporate struc-
ture. the purpose of expansion has not been to destroy the
raison d'eter of creating corporations but to advance the
human rights jurisprudence. prima facie we are not inclined
to accept the apprehensions of learned counsel for shriram
as well-founded when he says that our including within the
ambit of article 12 and thus subjecting to the discipline of
article 21, those private corporations whose activities have
the potential of affecting the life and health of the peo-
ple, would deal a death blow to the policy of encouraging
and permitting private entrepreneurial activity. whenever a
new advance is made in the field of human rights, apprehen-
sion is always expressed by the status quosits that it will
create enormous difficulties in the way of smooth function-
ing of the system and affect its stability. similar appre-
hension was voiced when this court in ramanna shetty's case
(supra) brought public sector corporations within the scope
and ambit of article 12 and subjected them to the discipline
of fundamental rights. such apprehension expressed by those
who may be affected by any new and innovative expansion of
human rights need not deter the court from widening the
scope of human rights and expanding their reach ambit, if
otherwise it is possible to do so without doing violence to
the language of the constitutional provision. it is through
creative interpretation and bold innovation that the human
rights jurisprudence has been developed in our country to a
remarkable extent and this forward march of the human rights
movement cannot be allowed to be halted by unfounded appre-
hensions expressed by status quoists. but we do not propose
to decide finally at the present stage whether a private
corporation like shriram would fall within the scope and
ambit of article 12, because we have not had sufficient time
to consider and reflect on this question in depth- the
hearing of this case before us
842
concluded only on 15th december 1986 and we are called upon
to deliver our judgment within a period of four days, on
19th december 1986. we are therefore of the view that this
is not a question on which we must make any definite pro-
nouncement at this stage. but we would leave it for a proper
and detailed consideration at a later stage if it becomes
necessary to do so.
we must also deal with one other question which was
seriously debated before us and that question is as to what
is the measure of liability of an enterprise which is en-
gaged in an hazardous or inherently dangerous industry, if
by reason of an accident occurring in such industry, persons
die or are injured. does the rule in rylands v. fletcher
apply or is there any other principle on which the liability
can be determined? the rule in rylands v. fletcher was
evolved in the year 1866 and it provides that a person who
for his own purposes being on to his land and collects and
keeps there anything likely to do mischief if it escapes
must keep it at his peril and, if he falls to do so, is
prima facie liable for the damage which is the natural
consequence of its escape. the liability under this rule is
strict and it is no defence that the thing escaped without
that person's wilful act, default or neglect or even that he
had no knowledge of its existence. this rule laid down a
principle of liability that if a person who brings on to his
land and collects and keeps there anything likely to do harm
and such thing escapes and does damage to another, he is
liable to compensate for the damage caused. of course, this
rule applies only to non-natural user of the land and it
does not apply to things naturally on the land or where the
escapeis due to an act of god and an act of a stranger or
the default of the person injured or where the thing which
escapes is present by the consent of the person injured or
in certain cases where there is statutory authority. vide
halsbury laws of england, vol. 45 para 1305. considerable
case law has developed in england as to what is natural and
what is non-natural use of land and what are precisely the
circumstances in which this rule may be displaced. but it is
not necessary for us to consider these decisions laying down
the parameters of this rule because in a modern industrial
society with highly developed scientific knowledge and
technology where hazardous or inherently dangerous indus-
tries are necessary to carry out part of the developmental
programme. this rule evolved in the 19th century at a time
when all these developments of science and technology had
not taken place cannot afford any guidance in evolving any
standard of liability consistent with the constitutional
norms and the needs of the present day economy and social
structure. we need not feel inhibited by this rule which was
evolved in this context of a totally different kind of
843
economy. law has to grow in order to satisfy the needs of
the fast changing society and keep abreast with the economic
developments taking place in the country. as new situations
arise the law has to be evolved in order to meet the chal-
lenge of such new situations. law cannot afford to remain
static. we have to evolve new principles and lay down new
norms which would adequately deal with the new problems
which arise in a highly industrialised economy. we cannot
allow our judicial thinking to be constricted by reference
to the law as it prevails in england or for the matter of
that in any other foreign country. we no longer need the
crutches of a foreign legal order. we are certainly prepared
to receive light from whatever source it comes but we have
to build up our own jurisprudence and we cannot countenance
an argument that merely because the new law does not recog-
nise the rule of strict and absolute liability in cases of
hazardous or dangerous liability or the rule as laid down in
rylands v. fletcher as is developed in england recognises
certain limitations and responsibilities. we in india cannot
hold our hands back and i venture to evolve a new. principle
of liability which english courts have not done. we have to
develop our own law and if we find that it is necessary to
construct a new principle of liability to deal with an
unusual situation which has arisen and which is likely to
arise in future on account of hazardous or inherently dan-
gerous industries which are concommitant to an industrial
economy, there is no reason why we should hesitate to evolve
such principle of liability merely because it has not been
so done in england. we are of the view that an enterprise
which is engaged in a hazardous or inherently dangerous
industry which poses a potential threat to the health and
safety of the persons working in the factory and residing in
the surrounding areas owes an absolute and nondelegable duty
to the community to ensure that no harm results to anyone on
account of hazardous or inherently dangerous nature of the
activity which it has undertaken. the enterprise must be
held to be under an obligation to provide that the hazardous
or inherently dangerous activity in which it is engaged must
be conducted with the highest standards of safety and if any
harm results on account of such activity, the enterprise
must be absolutely liable to compensate for such harm and it
should be no answer to the enterprise to say that it had
taken all reasonable care and that the harm occurred without
any negligence on its part. since the persons harmed on
account of the hazardous or inherently dangerous activity
carried on by the enterprise would not be in a position to
isolate the process of operation from the hazardous prepara-
tion of substance or any other related element that caused
the harm must be held strictly liable for causing such harm
as a part of the social cost for carrying on the hazardous
or
844
inherently dangerous activity. if the enterprise is permit-
ted to carry on an hazardous or inherently dangerous activi-
ty for its profit, the law must presume that such permission
is conditional on the enterprise absorbing the cost of any
accident arising on account of such hazardous or inherently
dangerous activity as an appropriate item of its over-heads.
such hazardous or inherently dangerous activity for private
profit can be tolerated only on condition that the enter-
prise engaged in such hazardous or inherently dangerous
activity indemnifies all those who suffer on account of the
carrying on of such hazardous or inherently dangerous activ-
ity regardless of whether it is carried on carefully or not.
this principle is also sustainable on the ground that the
enterprise alone has the resource to discover and guard-
against hazards or dangers and to provide warning against
potential hazards. we would therefore hold that where an
enterprise is engaged in a hazardous or inherently dangerous
activity and harm results to anyone on account of an acci-
dent in the operation of such hazardous or inherently dan-
gerous activity resulting, for example, in escape of toxic
gas the enterprise is strictly and absolutely liable to
compensate all those who are affected by the accident and
such liability is not subject to any of the exceptions which
operate vis-a-vis the tortious principle of strict liability
under the rule in rylands v. fletcher (supra).
we would also like to point out that the measure of
compensation in the kind of cases referred to in the preced-
ing paragraph must be co-related to the magnitude and capac-
ity of the enterprise because such compensation must have a
deferent effect. the larger and more prosperous the enter-
prise, the greater must be the amount of compensation pay-
able by it for the harm caused on account of an accident in
the carrying on of the hazardous or inherently dangerous
activity by the enterprise.
since we are not deciding the question as to whether
shriram is an authority within the meaning of article 12 so
as to be subjected to the discipline of the fundamental
right under article 21, we do not think it would be justi-
fied in setting up a special machinery for investigation of
the claims for compensation made by those who allege that
they have been the victims of oleum gas escape. but we would
direct that delhi legal aid and advice board to take up the
cases of all those who claim to have suffered on account of
oleum gas and to file actions on their behalf in the appro-
priate court for claiming compensation against shriram. such
actions claiming compensation may be filed by the delhi
legal aid and advice board.within two months from
845
today and the delhi administration is directed to provide
the necessary funds to the delhi legal aid and advice board
for the purpose of filing and prosecuting such actions. the
high court will nominate one or more judges as may be neces-
sary for the purpose of trying such actions so that they may
be expeditiously disposed of. so far as the issue of reloca-
tion and other issues are concerned the writ petition will
come up for hearing on 3rd february, 1987.
a.p.j. petition dis-
posed of.
846
petitioner:
rural litigation and entitlementkendra & ors. etc.

vs.

respondent:
state of uttar pradesh & ors. etc.

date of judgment18/12/1986

bench:
bhagwati, p.n. (cj)
bench:
bhagwati, p.n. (cj)
misra rangnath

citation:
1987 air 359 1987 scr (1) 641
1986 scc supl. 517 jt 1986 1119
1986 scale (2)1083
citator info :
rf 1987 sc2426 (5)
r 1988 sc2187 (14)

act:
constitution of india, 1950:--
article 51a(g)--environment--preservation
of--ecological balance keeping unaffected--task--government
as also every citizen undertake.
mineral regulations act, 1948/minerals concession rules,
1949.
limestone--quarrying of--grant of mining leases--depos-
its not to be exploited at cost of ecology and environmental
consideration.

headnote:
a letter received from the rural litigation and entitle-
ment kendra dehradun was treated as a writ petition and
notices issued. the main allegations therein related to
unauthorised and illegal mining operations carried on in the
mussoorie hills and the area around adversely affecting the
ecology of the area and leading to environmental disturb-
ances. in july, 1983 this court directed all fresh quarrying
to be stopped.
on 11.8.1983 this court appointed bhargav committee for
inspecting all the mines except those belonging to the state
of uttar pradesh and the union of india for determining
whether the safety standards laid down in the mines act 1952
and the mines rules were being observed or not and whether
there was any danger of landslides or was any hazard to
individuals, cattle or agricultural lands by carrying on of
mining operations. blasting operations in the area were also
directed to be stopped. on the basis of the main report of
the said committee this court on august 24, 1983 permitted
removal of limestone already quarried. the committee direct-
ed closure of some of the mines and reported the defects
appearing in other mines and called upon the mine owners to
carry out rectifications.
the bhargav committee classified the mines in a, b and c
groups. so far as the mines in group c were concerned, the
committee recommended that they should he closed down. as
regards the mines in group a, the committee opined that the
quarrying could he carried on without any environmental or
ecological hazard. the committee also
642
recommended closure of b group mines permanently. the union
government had also appointed a working group on mining of
limestone quarries in dehradun and mussoorie area some time
in. 1983 which was also headed by shri bhargav who was
heading the committee appointed by this court. the working
group submitted its report in september, 1983. after a
comparative analysis of the two reports, the court found
that the working group had taken these very mines for their
study and had divided the mines into two categories, namely,
class i and class ii. all the mines then categorised as
class i were now included by the bhargav committee in group
a and the remaining mines now classified as group b and c
were in class ii.
this court had also appointed an expert committee headed
by professor valdia to consider the problems of ecology and
environment with reference to mining. professor valdia gave
a separate report while the other two members gave a joint
report. in its order of march 12, 1985, this court observed
that it does not propose to rely on the report of professor
valdia and it would not be safe to direct continuance or
discontinuance of mining operations in limestone quarries on
the basis of main boundary thrust. in 12th march, 1985 order
this court directed that the limestone quarries located in
sahasradhara block and placed in category il by the working
group should be closed down, that the limestone quarries
placed in category ii by the working group other than those
which are placed in category b and c by the bhargav commit-
tee should also be closed down save and except for the
limestone quarries covered by the mining leases numbers 31,
36 and 37 for which the same direction should be given as
would be given in regard to the limestone quarries classi-
fied as category b in the bhargav committee report, and that
if there are any subsisting leases in respect of any of
these limestone quarries they will forthwith come to an end
and if any suits or writ petitions for continuance expire on
unexpired leases in respect of any of these limestone quar-
ries are pending, they too will stand dismissed.
this court also directed closing down of the mines in a
category located within the municipal limits of mussoorie.
in regard to b class quarries of the bhargav committee
report which featured in category ii of the working group
report, as also of the a category quarries within the munic-
ipal limits, this court set up a committee headed by shri
bandopadhyay, then secretary in the ministry of rural devel-
opment and called upon the mine owners to submit a full and
detailed scheme to that committee for its examination
643
and report to the court about the same. it was directed that
until further orders from this court on the basis of the
bandopadhyay committee report these mines shall not be
worked. bandopadhyay committee submitted its report reject-
ing the schemes put forward by various lessees of the mines
which have been closed down.
on 20th november, 1986 this court granted time to the
erstwhile lessees of mines to file objections to bandopadh-
yay committee report within six weeks and reply, if any, to
be filed by the petitioners and the state within four weeks
thereafter. the petitions were to come up for hearing in
february, 1987.
by order dated march 12, 1985 the court made a detailed
order containing various directions reported in [(1985) 3
scr 169] and the reasons therefor were to follow later.
 hon'ble mr. justice a.n. sen one of the members of the
bench who heard these petitions before his retirement deliv-
ered judgment on 30th september 1985 expressing his views
that it is not necessary to give any further reasons than
those which are already stated in the order made on 12th
march, 1985 because the broad reasons have been adequately
set out in the order and it would be an unnecessary exercise
to elaborate them.
giving the reasons the court,
held: 1. on a perusal of order dated 12th march, 1985
the other members of the bench are inclined to agree with
the view taken by hon'ble mr. justice a.n. sen that the said
order covered almost all the relevant aspects and touched
upon every issue germane to the matter. [646e]
2. the question whether the schemes submitted by the
mine lessees to bandopadhyay committee have been rightly
rejected or not and whether under those schemes, the mine
lessees can be allowed to carry on mining operations without
in any way adversely affecting environment or ecological
balance or causing hazard to individuals, cattle or agricul-
tural lands still remain to be considered and would have to
be decided in the light of the view taken by this court in
the order dated 12th march, 1985 and the instant judgment.
[650c-e]
3. preservation of the environment and keeping the
ecological balance unaffected is a task which not only
governments but also every citizen must undertake. it is a
social obligation and every indian citizen
644
is reminded that it is his fundamental duty as enshrined in
article 51 a(g) of the constitution. [653d-e]
4. consciousness for environmental protection is of
recent origin. scientific development have made it possible
and convenient for man to approach the places which are
beyond his ken. the consequences of such interference with
ecology and environment have now come to be realised.
[652f-h]
5. government both at the centre and in the state-must
realize and remain cognizent of the fact that the stake
involved in the matter is large and far reaching. the evil
consequences would last long. once that unwanted situation
sets in, amends or repairs would not be possible. the green-
ery of india may perish and the thar desert may expand its
limits. [652 e-f]
6. it has been commended earlier to the state of uttar
pradesh as also to the union of india that afforestation
activity may be carried out in the whole valley and the
hills. such activity has been undertaken. this court is not
oblivious of the fact that the natural resources have to be
tapped for the purposes of social development but one cannot
forget of the same time that tapping of resources have to be
done with requisite attention and care so that ecology and
environment may not be affected in any serious way; there
may not be any depletion of water resources and long term
planning must be undertaken to keep up the national wealth.
[653b-c]
7. it is for the government and the nation-and not for
the court--to decide whether the deposits should be exploit-
ed at the cost of ecology and environmental considerations
or the industrial requirement should be otherwise satisfied.
it may be perhaps possible to exercise greater control and
vigil over the operation and strike a balance between pres-
ervation and utilisation and that would indeed be a matter
for an expert body to examine and on the basis of appropri-
ate advice, government should take a policy decision and
firmly implement the same. [652d-e]
8. in the instant case, the limestone quarries in the
area are estimated to satisfy roughly three per cent of the
country's demand. at the present rate of mining, the depos-
its are likely to last some 50 years. digging of limestone
and allowing the waste to roll down or carried down by rain
water to the lower levels has affected the villages as also
the agricultural lands located below the hills. for removing
the
645
limestones quarried from the mines, roads have been laid and
for that purpose the hills have been interfered with; traf-
fic hazard for the local population both animals and
men--has increased. [652b]
9. in 1949 the minerals concession rules made by the
central government under the minerals regulations act, 1948
authorised grant of mining leases and several applicants
came forward for quarrying of high grade limestone. until
1962, extraction of limestone was permitted on temporary
permits by the state govt. of uttar pradesh. [651 f-g]

judgment:
original jurisdiction
writ petition no. 8209 & 8821 of 1983.
(under article 32 of the constitution of india)
m.a. krishnamoorthy, pramod dayal, rishi kesh, r.b.
mehrotra, m.g. ramachandran, c.m. nayyar, m. karanjawala,
s.a. sayed, sushil kumar jain, s. dikshit, p.p. juneja, p.k.
jain, k.n. bhatt, d.n. misra, i. makwana, a. subba rao,
harjinder singh, b.p. singh, parijat sinha, c.p. lal, shri
narain, s.k. gupta, k.r. nambiar, s.s. khanduja, k.k. jain,
c.m. nargolkar, kapil sibal, r. ramachandran and miss a.
subhashini for the appearing parties and devi ditta mal
petitioner in person.
the judgment of the court was delivered by,
 ranganath misra, j. on march 12, 1985, after hearing
counsel and parties appearing in person at great length this
court made a detailed order wherein it was said;
"this case has been argued at great length
before us not only because a large number of
lessees of limestone quarries are involved and
each of them has painstakingly and exhaustive-
ly canvassed his factual as well as legal
points of view but also because this is the
first case of its kind in the country involv-
ing issues relating to environment and ecolog-
ical balance and the questions arising for
consideration are of grave moment and signifi-
cance not only to the people residing in the
mussoorie hill range forming part of the
himalayas but also in their implications to
the welfare of the generality of people living
in the country. it brings into sharp focus the
conflict between development and conservation
and serves to emphasise the need for reconcil-
ing the two in the larger interest of the
country. but since
646
having regard to the voluminous material
placed before us and the momentous issues
raised for decision, it is not possible for us
to prepare a full and detailed judgment imme-
diately and at the same time, on account of
interim order made by us, mining operations
carried out through blasting have been stopped
and the ends of justice require that the
lessees of limestone quarries should know,
without any unnecessary delay, as to where
they stand in regard to their limestone quar-
ries, we propose to pass our order on the writ
petitions. the reasons for the order will be
set out in the judgment to follow later."
in the meantime, one of us our learned brother sen, j.,
has retired from the court. before that event happened, on
30th september, 1985, he delivered a judgment expressing his
views on the matter. he indicated:
"i do not think it necessary to give any
further reasons than those which are already
stated in the order made by us on 12th march,
1985. speaking personally for myself, i think
that the broad reasons have been adequately
set out in the order and it would be an unnec-
essary exercise to elaborate them."
on a perusal of our order of the 12th march, 1985, we are
inclined to agree with his view that the detailed order
covered almost all the relevant aspects and touched upon
every issue germane to the matter.
as this was the first case of its type with wide and
serious ramifications, we would like. to give a brief ac-
count of the manner in which the proceedings commenced, were
carried on and are to be concluded.
by an order dated 14.7.1983, this court directed a
letter received from the rural litigation and entitlement
kendra, dehra dun dated 2.7.1983 along with accompanying
affidavits to be treated as a writ petition and issued
notice to the state of uttar pradesh and the collector of
dehra dun. the main allegation therein related to unautho-
rised and illegal mining operations carried on in the muss-
oorie hills and the area around adversely affecting the
ecology' of the area and leading to environmental disturb-
ances. later on, another application was directed to be
tagged on and both the applications were dealt with togeth-
er. several parties, mainly, mining lessees numbering more
than 100, got impleaded either at the instance of the peti-
tioners or on their own seeking. by a later order made in
the month of july 1983,
647
this court directed all fresh quarrying to be stopped and
called upon the district magistrate and the superintendent
of police of dehra dun district to strictly enforce that
order.
on 11.8.1983, after heating the counsel for parties then
appearing, this court appointed a committee for the purpose
of inspecting all the mines other than those belonging to
the state of uttar pradesh and the union of india, with a
view to determining whether the safety standards laid down
in the mines act, 1952, and the mines rules made thereunder
were being observed or not and whether there was any danger
of landslides on account of the quarrying operations partic-
ularly during the monsoon in any of the mines and if there
was any other hazard to individuals, cattle or agricultural
lands by reason of the carrying on of mining operations.
blasting operations in the area were also directed to be
stopped. this committee came to be known as the bhargava
committee and its members were authorised to inspect the
mines and give suitable directions. the committee made its
main report on the basis whereof this court on august 24,
1983 permitted removal of limestone already quarried. the
committee directed closure of some of the mines and reported
the defects appearing in the other mines and called upon the
mine owners to carry out rectifications.
the bhargava committee classified the mines in the area
into three groups being a, b and c. so far as the mines in
group (c) were concerned, the committee was of the view
that.they were not suitable for continuance and should,
therefore, be closed down. so far as the question related to
the mines in group a the committee was of the opinion that
the quarrying could be carried on without any environmental
or ecological hazard. in regard to the b group mines, the
bhargava committee opined that those may not be closed down
permanently though it did notice the adverse impact of their
mining activities. in its order of 12th march, 1985, this
court took note of the fact that the union government had
appointed a working group on mining of limestone quarries in
dehra dun and mussoorie area some time in 1983 and the
working group was also headed by shri bhargava who-was
heading the committee appointed by this court. the other
members of the working group were experts in the field and
the working group had submitted the report in september
1983. a comparative analysis was made by this court in
regard to the mines by referring to both the reports. the
court found that the working group had taken these very
mines for their study and had divided the mines into two
categories--namely, class i and class ii. it transpires
648
that all the mines then categorised as class i were now
included by the bhargava committee in group a and the re-
maining mines now classified as group b and c by the bharga-
va committee were in class ii.
this court also, appointed an expert committee with
professor valdia and two members mainly to consider the
problems of ecology and environment with reference to min-
ing. professor valdia gave a separate report while the other
two members gave a joint report. dealing with the separate
report furnished by professor valdia, this court in its of
march 12, 1985 stated:
we may-observe straightaway that we do not
propose to rely on the report of professor
valdia who was one of the members of the
expert committee appointed by our order dated
2.9.1983 as modified by the order dated 23rd
october 1, 1983 this. committee consisted of
professor valdia, shri hukum singh and shri
d.n. kaul and it was appointed to enquire and
investigate into the question of disturbance
of ecology and pollution and affectation of
air, water and environment by reason of quar-
rying operations or working of stone crushers
or limestone kilns. shri hukum singh submitted
a joint report in regard to various aspects
while professor valdia submitted a separate
report. professor valdia's report was confined
shortly to the geological aspect and his
report he placed considerable reliance on the
main boundary thrust (shortly referred to as
m.b.t) and he took the view that limestone
quarries which were dangerously close to
m.b.t. should be closed down, because they
 were in the sensitive and vulnerable belt. we
shall examine this report in detail when we
give our reasons but we may straightaway point
out that w do not think it safe to direct
continuance or discontinuance of mining opera-
tions-in limestone quarries on the basis of
m.b.t."
at the further. hearings after the said order, parties did
not address arguments with reference to m.b.t. and we are of
the view that this topic need not be dealt with by us: in
12th march 1985 order we directed that the limestone quar-
ries located in sahasradhara block and ii by the working
group should be closed down.
also direct, agreeing with the report made by
649
the working group that the limestone quarries
placed in category ii by the working group
other than those which are placed in catego-
ries b and c by the bhargava committee should
also not be allowed to be operated and should
be closed down save and except for the lime-
stone quarries covered by the mining leases
numbers 31,36 and 37 for which we will give
the same direction as we are giving in the
succeeding paragraphs in regard to the lime-
stone quarries classified as category b in the
bhargava committee report. if there are any
subsisting leases in respect of any of these
limestone quarries they will forthwith come to
an end and if any suits or writ petitions for
continuance expire or unexpired leases in
respect of any of these limestone quarries are
pending, they too will stand dismissed."
this court directed closing down of the mines in a
category located within the municipal limits of mussoorie.
in regard to b class quarries of the bhargava committee
report which featured in category ii of the working group
report, as also of the a category quarries within the munic-
ipal limits, we set up a committee under the chairmanship of
shri d. bandyopadhyay, then secretary in the ministry of
rural development and called 'upon the mine owners to submit
a full and detailed scheme to that committee which would
examine the said scheme keeping in view the provisions of
the law as also the expediency of allowing mining operations
in the area and report to the court about the same. we have
directed that until further orders from this court on the
basis of bandopadhyay committee report these mines shall not
be worked. it may be pointed out that the bandopadhyay
committee has submitted its report rejecting the schemes put
forward by various lessees of the mines which have been
closed down and on 20th november, 1986, this court has
directed:
"we are informed that bandopadhyay committee
has submitted its report rejecting the.
schemes put forward by various erstwhile
lessees of the mines which havebeen closed
down now. this report was made as far back as'
in april 1986 and those who wanted to raise
objections, ought to have done so within a
reasonable time after the report was submitted
and those who have failed to do so, we cannot
shut them out and prevent them from raising
their objections; and in any event delay in
filing cannot prejudice public interest since
stone quarrying had already closed
650
down. we would, therefore, grant time to the
erstwhile lessees of mines, who wish to raise
objections, to file their objections within
six weeks from to-day and reply, if any, to
those objections may be filed on behalf of the
petitioners and the state of uttar pradesh
within four weeks thereafter.
the old record of the case may also
be kept in court at the time of the hearing of
this writ petition.
writ petition will come up for
hearing on 3rd tuesday in february 1987 before
a bench of which hon'ble mr. justice ranganath
misra is a member."
from the aforesaid order it is clear that in view of the
directions given by this court the question still remains to
be considered whether the schemes submitted by the mine
lessees to the bandopadhyaya committee under our order dated
12th march 1985 have been rightly rejected or not and wheth-
er under those schemes, the mine lessees can be allowed to
carry on mining operations without in any way adversely
affecting environment or ecological balance or causing
hazard to individuals, cattle and agricultural lands. this
question would, of course, have to be decided in the light
of the view taken by us in our order dated 12th march 1985
and the present judgment.
the himalayan range on the northern boundary of india is
the most recent mountain range and yet it is the tallest. it
has formed the northern boundary of the country and until
recent times provided an impregnable protection to the
indian sub-continent from the northern direction. this
mountain range has been responsible to regulate the monsoons
and consequently the rainfall in the indo-gangetic belt. the
himalayas are the source for perennial rivers--the ganges,
yamuna and brahmputra as also several other tributaries
which have joined these main rivers. for thousands of years
nature has displaced its splendour through the lush green
trees, innumerable springs and beautiful flowers. the hima-
layas has been the store house of herbs, shrubs and plants.
deep forests on the lower hills have helped to generate
congenial conditions for good rain.
the doon valley has been an exquisite region bounded by
the himalayanand the shivalik ranges and the ganga and
yamuna rivers. the perennial water streams and the fertile
soil have contributed not only to the growth of dense lush
green forests but have helped the yield
651
of basmati rice and leeches. mussoorie, known as the queen
of indian hill stations situated at a height of 5000 ft.
above sea level and dehra doon located below the heights
have turned out to be important places of tourist attrac-
tion, centres of education, research and defence complex.
at present the valley is in danger because of erratic,
irrational and uncontrolled quarrying of limestone. the
landscape has been stripped bare of its verdant cover. green
cover today is about 10 per cent of the area while from
decades ago it was almost 70 per cent.
the limestone belt has acted as the aquifer--to hold and
release water perennially. all the important streams--song,
baldi, rispana, kairuli and bhitarli originate from this
area. reckless mining, careless disposal of the mine-debris
and random blasting operations have disturbed the natural
water system and the supply of water both for drinking and
irrigation has substantially gone down: there is a growing
apprehension that if mining is carried on in this process, a
stage will come when there would be dearth of water in the
entire belt.
about a hundred years back around the middle of the last
century, britishers penetrated into the area and developed
mussoorie as a hill resort. the existence of huge limestone
deposits came to be discovered by the beginning of this
century. quarrying operations on small scale began. direct
human interference in limestone quarrying seems to have
begun in 1900. around 1904 all the quarries were declared as
property of the government and as appears from the bando-
padhyay report, in the year 1911 there existed only four
limestone quarries. it had been working in the dehra dun
area. around 1947, limestone quarrying took a new turn and a
number of persons who had migrated from pakistan started
working on limestone deposits by quarrying in private lands.
in 1949, the minerals concession rules made by the central
government under the minerals regulations act, 1948, autho-
rised grant of mining leases and several applicants came
forward for quarrying of high grade limestone. until 1962,
extraction of limestone was permitted on temporary permits
by the state government of uttar pradesh.
in these proceedings we came across 105 mining leases
and these, as the various reports have indicated, had direct
environmental impact on the area. it is said that the lime-
stone deposits in this area are of high grade having upto
99.8 calcium carbonate. mining operations in these areas
have led to cutting down of the forest. digging of
652
limestone andallowing the waste to roll down or carried
down by rain water to the lower levels has affected the
villages as also the agricultural lands located below the
hills. the naturally formed streams have been blocked.
blasting has disturbed the natural quiet, has shaken the
soil, loosened the rocky structures and disturbed the entire
ecology of the area. for removing the limestones quarried
from the mines, roads have been laid and for that purpose
the hills have been interfered with; traffic hazard for the
local population--both animals and men--has increased.
the limestone quarries in this area are estimated to
satisfy roughly three per cent of the country's demand for
such raw material and we were told during the heating that
the tata iron and steel company is the largest consumer of
this limestone for manufacturer of a special kind of steel.
at the present rate of mining, the deposits are likely to
last some 50 years. it is for the government and the
nation-and not for the court--to decide whether the deposits
should be exploited as the cost of ecology and environmental
considerationsor the industrial requirement should be
otherwise satisfied. it may be perhaps possible to exercise
greater control and vigil over the operation and strike a
balance between preservation and utilisation that would
indeed be a matter for an expert body to examine and on the
basis of appropriate advice, government should take a policy
decision and firmly implement the same.
governments--both at the centre and in the state--must
realize and remain cognizant of the fact that the stake
involved in the matter is large and far-reaching. the evil
consequences would last long. once that unwanted situation
sets in, amends or repairs would not be possible. the green-
ery of india, as some doubt, may perish and the thar desert
may expand its limits.
consciousness for environmental protection is of recent
origin. the united nations conference on world environment
held in stockholm in june 1972 and the follow-up action
thereafter is spreading the awareness. over thousands of
years men had been successfully exploiting the ecological
system for his sustenance but with the growth of population
the demand for land has increased and forest growth has been
and is being cut down and man has started encroaching upon
nature and its assets. scientific developments have made it
possible and convenient for man to approach the places which
were hitherto beyond his ken. the consequences of such
interference with ecology and environment have now came to
be realised. it is necessary that the
653
himalayas and the forest growth on the mountain range should
be left uninterfered with so that there may be sufficient
quantity of rain. the top soil may be preserved without
being eroded and the natural setting of the area may remain
intact. we had commended earlier to the state of uttar
pradesh as also to the union of india that afforestation
activity may be carried out in the whole valley and the
hills. we have been told that such activity has been under-
taken. we are not oblivious of the fact that natural re-
sources have got to be tapped for the purposes of social
development but one cannot forget at the same time that
tapping of resources have to be done with requisite atten-
tion and care so that ecology and environment may not be
affected in any serious' way; there may not be any depletion
of water resources and long-term planning must be undertaken
to keep up the national wealth. it has always to be remem-
bered that these are permanent assets of mankind and are not
intended to be exhausted in one generation.
we must place on record our appreciation of the steps
taken by the rural litigation and entitlement kendra. but
for this move, all that has happened perhaps may not have
come. preservation of the environment and keeping the eco-
logical balance unaffected is a task which not only govern-
ments but also every citizen must undertake. it is a social
obligation and let us remind every indian citizen that it is
his fundamental duty as enshrined in article 51 a(g) of the
constitution.
we are of the view that the kendra should be entitled to
the costs of this proceeding. we assess the same at rs.
10.000 and direct the state of uttar pradesh to pay the same
either directly or through court within one month.
a.p.j.
654
petitioner:
olga tellis & ors.

vs.

respondent:
bombay municipal corporation & ors. etc.

date of judgment10/07/1985

bench:
chandrachud, y.v. ((cj)
bench:
chandrachud, y.v. ((cj)
fazalali, syed murtaza
tulzapurkar, v.d.
reddy, o. chinnappa (j)
varadarajan, a. (j)

citation:
1986 air 180 1985 scr supl. (2) 51
1985 scc (3) 545 1985 scale (2)5
citator info :
f 1986 sc 204 (11)
rf 1986 sc 847 (12)
d 1989 sc 38 (13)
d 1989 sc1988 (8,20,21)
r 1990 sc1480 (41,109)
f 1991 sc 101 (23,32,223,239,258)
rf 1991 sc1117 (5)
rf 1991 sc1902 (24)
e 1992 sc 789 (13)

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

headnote:
the petitioners in writ petitions nos. 4610-12/81 live
on pavements and in slums in the city of bombay. some of the
petitioners in the second batch of writ petitions nos.5068-
79 of 1981, are residents of kamraj nagar, a basti or
habitation which is alleged to have come into existence in
about 1960-61, near the western express highway, bombay,
while others are residing in structures constructed off the
tulsi pipe road, mahim, bombay. the peoples union for civil
liberties, committee for the protection of democratic rights
and two journalists have also joined in the writ petitions.
52
some time in 1981, the respondents - state of
maharashtra and bombay municipal corporation took a decision
that all pavement dwellers and the slum or busti dwellers in
the city of bombay will be evicted forcibly and deported to
their respective places of origin or removed to places
outside the city of bombay. pursuant to that decision, the
pavement dwellings of some of the petitioners were in fact
demolished by the bombay municipal corporation. some of the
petitioners challenged the aforesaid decision of the
respondents in the high court. the petitioners conceded
before the high court that they could not claim any
fundamental right to put up huts on pavements or public
roads, and also gave an undertaking to vacate the huts on or
before october, 15, 1981. on such undertaking being given,
the respondents agreed that the huts will not be demolished
until october 15, 1981 and the writ petition was disposed of
accordingly.
in writ petitions filed under article 32, the
petitioners challengedthe decision of the respondents to
demolish the pavement dwellings and the slum hutments on the
grounds (i) that evicting a pavement dweller from his
habitat amounts to depriving him of his right to livelihood,
which is comprehended in the right guaranteed by article 21
of the constitution that no person shall be deprived of his
life except according to procedure established by law, (ii)
that the impugned action of the state government and the
bombay municipal corporation is violative of the provisions
contained in article 19(1)(3), 19(1)(g) and 21 of the
constitution, (iii) that the procedure prescribed by section
314 of the bombay municipal corporation act, 1888 for the
removal of encroachments from pavements is arbitrary and
unreasonable since, not only does it not provide for the
giving of a notice before the removal of an encroachment
but, expressly enables that the municipal commissioner may
cause the encroachments to be removed without notice , (iv)
that it is constitutionally impermissible to characterise
the pavement dwellers as 'trespassers', because their
occupation of pavements arises from economic compulsions;
and (v) that the court must determine the content of the
'right to life', the function of property in a welfare
state, the dimension and true meaning of the constitutional
mandate that property must subserve common good, the sweep
of the right to reside and settle in any part of the
territory of india which is guaranteed by article 19(1) (a)
and the right to carry on any occupation, trade or business
which is guaranteed by article 19(1) (g), the competing
claims of pavement dwellers on the one hand and of the
pedestrians on the other and, the larger question of
ensuring equality before the law.
53
the respondents contested the writ petitions contending
that (1) the petitioners must be estopped from contending in
the supreme court that the huts constructed by them on the
pavements cannot be demolished because of their right to
livelihood, since they had conceded in the high court that
they did not claim any fundamental right to put up huts on
pavements or public roads and had given an undertaking to
the high court that they will not obstruct the demolition of
the huts after october 15, 1981.; (2) that no person has any
legal right to encroach upon or to construct any structure
on a foot-path, public street or on any place over which the
public has a right of way. the right conferred by article
19(1) (e) of the constitution to reside and settle in any
part of india cannot be read to confer a licence to
encroach and trespass upon public property; (3) that the
provisions of sections 312, 313 and 314 of the bombay
municipal corporation act do not violate the constitution,
but are conceived in public interest and great care is taken
by the authorities to ensure that no harassment is caused to
any pavement dweller by enforcing the provisions; (4) that
the huts near the western express highway, vile parle,
bombay, were constructed on an accessory road which is a
part of the highway itself, and were never regularised by
the corporation and no registration numbers were assigned to
them; (5) that no deprivation of life, either directly or
indirectly is involved in the eviction of the slum and
pavement dweller from public places. the municipal
corporation is under an obligation under section 314 of the
b.m.c. act to remove obstruction on pavements, public
streets and other public places. the petitioners have not
only violated the provisions of the bombay municipal
corporation act, but they have contravened sections 111 and
115 of the bombay police act also.
disposing of the writ petitions,
^
held: 1.1 the petitions are clearly maintainable under
article 32 of the constitution. where the action taken
against a citizen is procedurally ultra vires, the aggrieved
party can move the supreme court under article 32. [79 c-d]
naresh shridhar mirajkar v. state of maharashtra [1966]
3 s.c.r. 744-770, followed.
smt. ujjam bai v. state of uttar pardesh. [1963] 1
s.c.r. 778, referred to.
54
1.2 there can be no estoppel against the constitution.
the constitution is not only the paramount law of the land
but, it is the source and sustenance of all laws. its
provisions are conceived in public interest and are intended
to serve a public purpose. the doctrine of estoppel is based
on the principle that consistency in word and action imparts
certainty and honesty to human affairs. if a person makes
representation to another, on the faith of which the latter
acts to is prejudice, the former cannot resile from the
representation made by him. he must make it good. this
principle can have noapplication to representations made
regarding the assertion or enforcement of fundamental
rights. [77 c-e]
1.3 fundamental rights are undoubtedly conferred by the
constitution upon individuals which have to be asserted and
en forced by them, if those rights are violated. but, the
high purpose which the constitution seeks to achieve by
conferment of fundamental rights is not only to benefit
individuals but to secure the larger interests of the
community. the preamable of the constitution says that india
is a democratic republic. it is in order to fulfil the
promise of the preamble that fundamental rights are
conferred by the constitution, some on citizens like those
guaranteed by articles 15, 16, 19, 21 and 29 and, some on
citizens and non-citizens alike, like those guaranteed by
articles 14, 21, 22 and 25 of the constitution. no
individual can barter away the freedoms conferred upon him
by the constitution. a concession made by him in a
proceedings, whether under a mis take of law or otherwise,
that he does not possess or will not enforce any particular
fundamental right, cannot create an estoppel against him in
that or any subsequent proceedings. such a concession, if
enforced, would defeat the purpose of the constitution. [77
f-h, 78 a-b]
the plea of estoppel is closely connected with the plea
of waiver, the object of both being to ensure bona fides in
day-to day transactions. [78 d]
in the instant case, notwithstanding the fact that the
petitioners had conceded in the bombay high court that they
have no fundamental right to construct hutments on pavements
and that they will not object to their demolition after
october 15, 1981, they are entitled to assert that any such
action on the part of public authorities will be in
violation of their fundamental rights. how far the argument
regarding the existence and scope of the right claimed by
the petitioners is well-founded is
55
another matter- but, the argument has to be examined despite
the concession. [78 c-d]
basheshar nath v. the commissioner of income tax delhi
(1959) supp. 1 s.c.r. 528, referred to.
2.1 the sweep of the right to life conferred by article
21 is wide and far reaching. it does not mean merely that
life cannot be extinguished or taken away as, for example,
by the imposition andexecution of the death sentence,
except according to procedure established by law. that is
but one aspect of the right to life. an equally important
facet of that right is the right to livelihood because, no
person can live without the means of living, that is, the
means of livelihood. if the right to livelihood is not
treated as a part of the constitutional right to live, the
easiest way of depriving a person of his right to life would
be to deprive him of his means of livelihood to the point of
abrogation. such deprivation would not only denude the life
of its effective content and meaningfulness but it would
make life impossible to live. and yet, such deprivation
would not have to bein accordancewith the procedure
established by law, if the right to livelihood is not
regarded as a part of the right to life. that, which alone
makes it possible to live, leave aside what makeslike
livable, must be deemed to be an integral component of the
right to life. [79 f-h, 80 a-b]
2.2 the principles contained in articles 39(a) and 41
must be regarded as equally fundamental in the understanding
and interpretation of the meaning and content of fundamental
rights. if there is an obligation upon the state to secure
to the citizens an adequate means of livelihood and the
right to work, it would be sheer pedantry to exclude the
right to livelihood from the content of the right to life.
the state may not, by affirmative action, be compellable to
provide adequate means of livelihood or work to the
citizens. but, any person who is deprived of his right to
livelihood except according to just and fair procedure
established by law, can challengethe deprivation as
offending the right to life conferred by article 21. [80 g-
h, 81 a]
munn v. illinois [1877] 94 us 113 and kharak singh v.
the state of u.p. [1964] 1 s.c.r. 332 referred to.
in re: sant ram (1960) 3 s.c.r. 499, distinguished.
56
2.3 in a matter like the one in which the future of
half of the city's population is at stake, the court must
consult authentic empirical data compiled by agencies,
official and non-official. it is by that process that the
core of the problem can be reached and a satisfactory
solution found. it would be unrealistic on the part of the
court to reject the petitions on the ground that the
petitioners have not adduced evidence to show that they will
be rendered jobless if they are evicted from the slums and
pavements. common sense, which is a cluster of life's
experiences, is often more dependable than the rival facts
presented by warring litigants. [82 b-c]
in the instant case, it is clear from the various
expert studies that one of the main reasons of the emergence
and growth of squatter-settlements in big metropolitan
cities like bombay, is the availability of job opportunities
which are lacking in the rural sector. the undisputed fact
that even after eviction, the squatters return to the cities
affords proof of that position. these facts constitute
empirical evidence to justify the conclusion that persons in
the position of petitioners live in slums and on pavements
because they have small jobs to nurse in the city and there
is nowhere else to live. evidently, they choose a pavement
or a slum in the vicinity of their place of work, the time
otherwise taken in commuting and its cost being forbidding
for their slender means. to lose the pavement or the slum is
to lose the job. the conclusion, therefore, in terms of the
constitutional phraseology is that the eviction of the
petitioners will lead to deprivation of their livelihood and
consequently to the deprivation of life. [82 d, 83 b-d]
 3.1 the constitution does not put an absolute embargo
on the deprivation of life or personal liberty. it is far
too well settled to admit of any argument that the procedure
prescribed by law for the deprivation of the right conferred
by article 21 must be fair, just and reasonable. just as a
mala fide act has no existence in the eye of law, even so,
unreasonableness vitiates law and procedure alike. it is
therefore essential that the procedure prescribed by law for
depriving a person of his fundamental right, must conform to
the means of justice and fair play. procedure, which is
unjust or unfair in the circumstances of a case, attracts
the vice of unreasonableness, thereby vitiating the law
which prescribes that procedure and consequently, the action
taken under it. any action taken by a public authority which
is invested with statutory powers has, therefore, to be
tested by the application of two standards: the action must
be
57
within the scope of the authority conferred by law and
secondly, it must be reasonable. if any action, within the
scope of the authority conferred by law, is found to be
unreasonable, it must mean that the procedure established by
law under which that action is taken is itself unreasonable.
the substance of the law cannot be divorced from the
procedure which it prescribes for, how reasonable the law
is, depends upon how fair is the procedure prescribed by it.
[83 e, 85 f-h, 86 a]
3.2 in order to decide whether the procedure prescribed
by section 314 is fair and reasonable, the court must first
determine the true meaning of that section because, the
meaning of the law determines its legality. considered in
its proper perspective, section 314 is in the nature of an
enabling provision and not of a compulsive character. it
enables the commissioner in appropriate cases, to dispense
with previous notice to persons who are likely to be
affected by the proposed action. it does not require and,
cannot be read to mean that, in total disregard of the
relevant circumstances pertaining to a given situation, the
commissioner must cause the removal of an encroachment
without issuing previous notice. the primary rule of
construction is that the language of the law must receive
its plain and natural meaning. what section 314 provides is
that the commissioner may, without notice, cause an
encroachment to be removed. it does not command that the
commissioner, shall without notice, cause an encroachment to
be removed. putting it differently, section 314 confers on
the commissioner the discretion to cause an encroachment to
be removed with or without notice. that discretion has to be
exercised in a reasonable manner so as to comply with the
constitutional mandate that the procedure accompanying the
performance of a public act must be fair and reasonable. the
court must leen in favour of this interpretation because it
helps sustain the validity of the law. reading section 314
as containing a command not to the issue before the removal
of an encroachment will make the law invalid. [88 h, 89 a-d]
3.3 section 314 is so designed as to exclude the
principles of natural justice by way of exception and not as
a general rule. there are situations which demand the
exclusion of the rules of natural justice by reason of
diverse factors like time, place, the apprehended danger and
so on. the ordinary rule which regulates all procedure is
that persons who are likely to be affected by the proposed
action must be afforded an opportunity of being heard as to
why that action should not be taken. the hearing may be
given individually or collectively, depending upon the facts
58
of each situation. a departure from this fundamental rule of
natural justice may be presumed to have been intended by the
legislature only in circumstances which warrant it. such
circumstances must be known to exist, when so required, the
burden being upon those who affirm their existence. [89 e-g]
3.4 the proposition that notice need not be given of a
pro posed action because, there can possibly be no answer to
it, is contrary to the well-recognized understanding of the
real import of the rule of hearing. that proposition
overlooks that justice must not only be done but must
manifestly be seen tobe done and confuses one for the
other. the appearance of injustice is the denial of justice.
it is the dialogue with the person likely to be affected by
the proposed action which meets the requirement that justice
must also be seen to be done. procedural safeguards have
their historical origins in the notion that conditions of
personal freedom can be preserved only when there is some
institutional check on arbitrary action on the part of the
public authorities. the right to be heard has two facets,
intrinsic and instrumental. the intrinsic value of that
right consists in the opportunity which it gives to
individuals or groups, against whom decision taken by public
authorities operate, to participate in the processes by
which those decisions are made, an opportunity that
expresses their dignity as persons. [90 h, 91 a-d]
e.p. royappa v. state of tamil nadu [1974] 2 s.c.r.
348, maneka gandhi v. union of india [1978] 2 s.c.r. 621,
m.o. hoscot v. state of maharashtra [1979] 1 s.c.r. 192,
sunil batra, i v. delhi administration [1979] 1 s.c.r. 392,
sita ram. state of u.p. [1979] 2 s.c.r. 1085, hussainra
khatoon, i v. home secret any state of bihar, patna [1979] 3
s.c.r. 532,537. husinara khatoon,ii v. home secretary state
of bihar, patna [1980] 1 s.c.c. 81 sunil batra, ii. v. delhi
administration [1980] 2 s.c.r. 557, jolly george verghese v.
the bank of cochin [1980] 2 s.c.r. 913, 921-922. kasturi lal
lakshmi redy v. state of jammu & kashmir [1980] 3 s.c.r.
1338, 1356, francis coralie muliin v. the administrator
union territory of delhi [1981] 2 s.c.r. 516, 523-524, the
influence of remedies on rights' (current legal problems
[1953] volume 6), per frankfurter, j. in viterall v. seton 3
l. ed (2nd series) 1012, ramana dayaram shetty v. the
international airport authority of india [1979] 3 s.c.r.
1014, 1032, referred to.
in the instant case, the procedure prescribed by
section 314 of the bombay municipal corporation act for
removal of encroachments on the footpaths or pavements over
which the public has the
59
right of passage or access, cannot be regarded as
unreasonable, unfair or unjust. there is no static measure
of reasonableness which can be applied to all situations
alike. indeed, the question is this procedure reasonable?"
implies and postulates the inquiry as to whether the
procedure prescribed is reasonable in the circumstances of
the case.
francis corlie mullin v. the administrator, union
territory of delhi [1981] 2 s.c.r. 516, 523-524, referred
to.
3.5 footpaths or pavements are public properties which
are intended to serve the convenience of the general public.
they are not laid for private use and indeed, their use for
a private purpose frustrates the very object for which they
are carved out from portions of public streets. the main
reason for laying out pavements is to ensure that the
pedestrians are able to go about their daily affairs with a
reasonable measure of safety and security. that facility,
which has matured into a right of the pedestrians, cannot be
set at naught by allowing encroachments to be made on the
pavements. [87 b-c]
3.6 no one has the right to make use of a public
property for a private purpose without the requisite
authorisation and, therefore, it is erroneous to contend
that the pavement dwellers have the right to encroach upon
pavements by constructing dwellings thereon. public streets,
of which pavements form a part, are primarily dedicated for
the purpose of passage and, even the pedestrians have but
the limited right of using pavementsfor the purpose of
passing and repassing. so long as a person does not
transgress the limited purpose for which pavements are made,
his use thereof is legitimate and lawful. but, if a person
puts any public property to a use for which it is not
intended and is not authorised so to use it, he becomes a
trespasser. [87 d-f]
putting up a dwelling on the pavement is a case which
is clearly on one side of the line showing that it is an act
of trespass. [87 h]
hickman v. maisey [1980] 1 q.b. 752, referred to.
 s.l. kapoor v. jagmohan [1981] 1 s.c.r. 746, 766, ridge
v. baldwin [1964] ac 40 at 68, john v. rees [1970] 1
chancery 345 at 402, annamunthodo v. oil fields workers'
trade union [1961] 3 all e.r. 621 (h.l.) at 625, margarits
fuentes at al v. tobert l.
60
shevin 32, l. ed. 2nd 556 at 574, chintepalli agency taluk
arrack sales cooperative society ltd. v. secretary (food and
agriculture) [1978] 1 s.c.r. 563 at 567, 569-70, relied
upon.
4.1 there is no doubt that the petitioners are using
pavements and other public properties for an unauthorised
purpose. but, their intention or object in doing so is not
to "commit an offence or intimidate insult or annoy any
person", whichis the gist of the offence of "criminal
trespass" under section 441 of the penal code. they manage
to find a habitat in places which are mostly filthy or
marshy, out of sheer helplessness. it is not as if they have
a free choice to exercise as to whether to commit an
encroachment and if so, where. the encroachment committed by
these persons are involuntary acts in the sense that those
acts are compelled by inevitable circumstances and are not
guided by choice. trespass is a tort. but, even the law of
torts requires that though a trespasser may be evicted
forcibly, the force used must be no greater than what is
reasonable and appropriate to the occasion and, what is even
more important, the trespasser should be asked and given a
reasonable opportunity to depart before force is used to
expel him. [93 a-d]
in the instant case, the court would have directed the
municipal commissioner to afford an opportunity to the
petitioners to show why the encroachments committed by them
on pavements or footpaths should not be removed. but, the
opportunity which was denied by the commissioner was granted
by the supreme court in an ample measure, both sides having
made their contentions elaborately on facts as well as on
law. having considered those contentions the court is of the
opinion that the commissioner was justified in directing the
removal of the encroachments committed by the petitioners on
pavements, footpaths or accessory roads. [94 e-f]
4.2 pavement dwellers who were censused or who happened
to be censused in 1976 should be given, though not as a
condition precedent to their removal, alternate pitches at
malavani or, at such other convenient place as the
government considers reasonable but not farther away in
terms of distance; slum dwellers who were given identity
cards and whose dwellings were numbered in the 1976 census
must be given alternate sites for their resettlement; slums
which have been in existence for a long time, say for twenty
years or more, and which have been improved and developed
will not be removed unless the land on which they stand or
the appurtenant land, is required for a public purpose, in
which case, alternate sites of accommodation will be
provided to
61
them; the 'low income scheme shelter programme' which is
proposed to be undertaken with the aid of the world bank
will be pursued earnestly; and the 'slum upgradation
programme (sup)' under which basic amenities are to be given
to slum dwellers will be implemented without delay. in order
to minimise the hardship involved in any eviction, the
slums, wherever situated, will not be removed until one
month after the end of the current monsoon season, that is
until october 31, 1985 and, thereafter, only in accordance
with this judgment. if any slum is required to be removed
before that date, parties may apply to the supreme court.
pavement dwellers, whether censused or uncensused, will not
be removed until the same date viz. october 31, 1984. [98 d-
h]
4.3 in so far as the kamraj nagar basti is concerned,
there are over 400 hutments therein. since the basti is
situated on a part of the road leading to the express
highway, serious traffic hazards arise on account of the
straying of the basti children on to the express highway, on
which there is heavy vehicular traffic. the same criterion
would apply to the kamaraj nagar basti as would apply to the
dwellings constructed unauthorisedly on other roads and
pavements in the city. [95 c-d]

judgment:
original jurisdiction : writ petition nos. 4610-4612 &
5068-5079 of 1981.
(under article 32 of the constitution of india.)
miss indira jaisingh, miss rani jethmalani, anand
grover and sumeet kachhwaha for the petitioners in w.p. no.
4610-12 of 1981.
ram jethmalani, v.m. tarkunde, miss darshna bhogilal,
mrs. indu sharma and p.h. parekh for the petitioners in w.p.
nos. 5068-79 of 1981.
l.n. sinha attorney general, p. shankaranarayanan and
m.n. shroff for respondent nos. 2 & 3 in w.p. nos. 4610-12
of 1981 and for respondent nos. 1 and 3 in w.p. no. 5068-79
of 1981.
k.k.singhvi, f.n.d. mollo and d.n. mishra for
respondent no. 1 in w.p. nos. 4610-12 and for respondent no.
2 in w.p. no.5068-79 of 1981.
the judgment of the court was delivered by :
chandrachud, cj. these writ petitions portray the
plight of lakhs of persons who live on pavements and in
slums in the city of bombay. they constitute nearly half the
population of
62
the city. the first group of petitions relates to pavement
dwellers while the second group relates to both pavement and
basti or slum dwellers. those who have made pavements their
homes exist in the midst of filth and squalor, which has to
be seen to believed. rabid dogs in search of stinking meat
and cats in search of hungry rats keep them company. they
cook and sleep where they ease, for no conveniences are
available to them. their daughters, come of age, bathe under
the nosy gaze of passers by, unmindful of the feminine sense
of bashfulness. the cooking and washing over, women pick
lice from each other's hair. the boys beg. menfolk, without
occupation, snatch chains with the connivance of the
defenders of law and order; when caught, if at all, they say
: "who doesn't commit crimes in this city ?
it is these men and women who have come to this court
to ask for a judgment that they cannot be evicted from their
squalid shelters without being offered alternative
accommodation. they rely for their rights on article 21 of
the constitution which guarantees that no person shall be
deprived of his life except according to procedure
established by law. they do not contend that they have a
right to live on the pavements. their contention is that
they have a right to live, a right which cannot be exercised
without the means of livelihood. they have no option but to
flock to big cities like bombay, which provide the means of
bare subsistence. they only choose a pavement or a slum
which is nearest to their place of work. in a word, their
plea is that the right to life is illusory without a right
to the protection of the means by which alone life can be
lived. and, the right to life can only be taken away or
abridged by a procedure established by law, which has to be
fair and reasonable, not fanciful or arbitrary such- as is
prescribed by the bombay municipal corporation act or the
bombay police act. they also rely upon their right to reside
and settle in any part of the country which is guaranteed by
article 19(1)(e).
the three petitioners in the group of writ petitions
4610 4612 of 1981 are a journalist and two pavement
dwellers. one of these two pavement dwellers, p. angamuthu,
migrated from salem, tamil nadu, to bombay in the year 1961
in search of employment. he was a landless labourer in his
home town but he was rendered jobless because of drought. he
found a job in a chemical company at dahisar, bombay, on a
daily wage of rs-23 per day. a slum-lord extorted a sum of
rs.2,50 from him in exchange of a shelter of plastic sheets
and canvas on a pavement on the western express highway,
bombay. he lives in it with his wife and three daughters who
are 16, 13 and 5 years of age.
63
 the second of the two pavement dwellers came to bombay
in 1969 from sangamner, district ahmednagar, maharashtra. he
was a cobbler earning 7 to 8 rupees a day, but his so-called
house in the village fell down. he got employment in bombay
as a badli kamgar for rs. 350 per month. he was lucky in
being able to obtain a "dwelling house" on a pavement at
tulsiwadi by paying rs. 300 to a goonda of the locality. the
bamboos and the plastic sheets cost him rs. 700.
on july 13, 1981 the then chief minister of
maharashtra, shri a.r. antulay, made an announcement which
was given wide publicity by the newspapers that all pavement
dwellers in the city of bombay will be evicted forcibly and
deported to their respective places of origin or removed to
places outside the city of bombay. the chief minister
directed the commissioner of police to provide the necessary
assistance to respondent 1, the bombay municipal
corporation, to demolish the pavement dwellings and deport
the pavement dwellers. the apparent justification which the
chief minister gave to his announcement was : "it is a very
inhuman existence. these structures are flimsy and open to
the elements. during the monsoon there is no way these
people can live comfortably."
on july 23, 1981 the pavement dwelling of p. angamuthu
was demolished by the officers of the bombay municipal
corporation. he and the members of his family were put in a
bus for salem. his wife and daughters stayed back in salem
but he returned to bombay in search of a job and got into a
pavement house once again. the dwelling of the other
petitioner was demolished even earlier, in january 1980 but
he rebuilt it. it is like a game of hide and seek. the
corporation removes the ramshackle shelters on the pavements
with the aid of police, the pavement dwellers flee to less
conspicuous pavements in by-lanes and, when the officials
are gone, they return to their old habitats. their main
attachment to those places is the nearness thereof to their
place of work.
in the other batch of writ petitions nos. 5068-79 of
1981, which was heard along with the petitions relating to
pavement dwellers, there are 12 petitioners. the first five
of these are residents of kamraj nagar, a basti or
habitation which is alleged to have come into existence in
about 1960-61, near the western express highway, bombay. the
next four petitioners were residing in structures
constructed off the tulsi pipe road,
64
mahim, bombay. petitioner no. 10 is the peoples' union of
civil liberties, petitioner no. 11 is the committee for the
protection of democratic rights while petitioner no. 12 is a
journalist.
the case of the petitioners in the kamraj nagar group
of cases is that there are over 500 hutments in this
particular basti which was built in about 1960 by persons
who were employed by a construction company engaged in
laying water pipes along the western express highway. the
residents of kamraj nagar are municipal employees, factory
or hotel workers, construction supervisors and so on. the
residents of the tulsi pipe road hutments claim that they
have been living there for 10 to 15 years and that, they are
engaged in various small trades. on hearing about the chief
minister's announcement, they filed a writ petition in the
high court of bombay for an order of injunction restraining
the officers of the state government and the bombay
municipal corporation from implementing the directive of the
chief minister. the high court granted an ad-interim
injunction to be in force until july 21, 1981. on that date,
respondents agreed that the huts will not be demolished
until october 15, 1981. however, it is alleged, on july 23,
1981, the petitioners were huddled into state transport
buses for being deported out of bombay. two infants were
born during the deportation but that was set off by the
death of two others.
the decision of the respondents to demolish the huts is
challenged by the petitionerson the ground that it is
violative of articles 19 and 21 of the constitution. the
petitioners also ask for a declaration that the provisions
of sections 312, 313 and 314 of the bombay municipal
corporation act, 1888 are in valid as violating articles 14,
19 and 21 of the constitution. the reliefs asked for in the
two groups of writ petitions are that the respondents should
be directed to withdraw the decision to demolish the
pavement dwellings and the slum hutments and, where they are
already demolished, to restore possession of the sites to
the former occupants.
on behalf of the government of maharashtra, a counter-
affidavit has been filed by v.s.munje, under secretary in
the department of housing. the counter-affidavit meets the
case of the petitioners thus. the government of maharashtra
neither proposed to deport any payment dweller out of the
city of bombay nor did it, in fact, deport anyone. such of
the pavement dwellers, who expressed their desire in
writing, that they wanted to return to their home towns and
who sought assistance from the government in
65
that behalf were offered transport facilities up to the
nearest rail head and were also paid railway fare or bus
fare and incidental expenses for the onward journey. the
government of maharashtra had issued instructions to its
officers to visit specific pavements on july 23, 1981 and to
ensure that no harassment was caused to any pavement
dweller. out of 10,000 hutment-dwellers who were likely to
be affected by the proposed demolition of hutments
constructed on the pavements, only 1024 persons opted to
avail of the transport facility and the payment of
incidental expenses.
the counter-affidavit says that no person has any legal
right to encroach upon or to construct any structure on a
footpath, public street or on any place over which the
public has a right of way. numerous hazards of health and
safety arise if action is not taken to remove such
encroachments. since, no civic amenities can be provided on
the pavements, the pavement dwellers use pavements or
adjoining streets for easing themselves. apart from this,
some of the pavement dwellers indulge in anti-social acts
like chain-snatching, illicit distillation of liquor and
prostitution. the lack of proper environment leads to
increased criminal tendencies, resulting in more crime in
the cities. it is, therefore, in public interest that public
places like pavements and paths are not encroached upon. the
government of maharashtra provides housing assistance to the
weaker sections of the society like landless labourers and
persons belonging to low income groups, within the frame
work of its planned policy of the economic and social
development of the state. any allocation for housing has to
be made after balancing the conflicting demands from various
priority sectors. the paucity of resources is a restraining
factor on the ability of the state to deal effectively with
the question of providing housing to the weaker sections of
the society. the government of maharashtra has issued policy
directives that 75 percent of the housing programme should
be allocated to the lower income groups and the weaker
sections of the society. one of the objects of the state's
planning policy is to ensure that the influx of population
from the rural to the urban areas is reduced in the interest
of a proper and balanced social and economic development of
the state and of the country. this is proposed to be
achieved by reversing the rate of growth of metropolitan
cities and by increasing the rate of growth of small and
medium towns. the state government has therefore, devised an
employment guarantee scheme to enable the rural population,
which remains unemployed or underemployed at certain periods
of the year, to get employment during such periods. a sum
66
of about rs. 180 crores was spent on that scheme during the
years 1979-80 and 1980-81. on october 2, 1980 the state
government launched two additional schemes for providing
employment opportunities for those who cannot get work due
to old age or physical infirmities. the state government has
also launched a scheme for providing self-employment
opportunities under the 'sanjay gandhi niradhar anudan
yojana'. a monthly pension of rs. 60 is paid to those who
are too old to work or are physically handicapped. in this
scheme, about 1,56,943 persons have been identified and a
sum of rs. 2.25 crores was disbursed. under another scheme
called 'sanjay gandhi swawalamban yojana', interest-free
loans, subject to a maximum of rs. 2,500, were being given
to persons desiring to engage themselves in gainful
employment of their own. about 1,75,000 persons had
benefited under this scheme, to whom a total sum of rs. 5.82
crores was disbursed by way of loan. in short, the objective
of the state government was to place greater emphasis on
providing infrastructural facilities to small and medium
towns and to equip them so that they could act as growth and
service centres for the rural hinterland. the phenomenon of
poverty which is common to all developing countries has to
be tackled on an all-india basis by making the gains of
development available to all sections of the society through
a policy of equitable distribution of income and wealth.
urbanisation is a major problem facing the entire country,
the migration of people from the rural to the urban areas
being a reflection of the colossal poverty existing in the
rural areas. the rural poverty cannot, however, be
eliminated by increasing the pressure of population on
metropolitan cities like bombay. the problem of poverty has
to be tackled by changing the structure of the society in
which there will be a more equitable distribution of income
and greater generation of wealth. the state government has
stepped up the rate of construction of tenements for the
weaker sections of the society from 2500 to 9500 per annum.
it is denied in the counter-affidavit that the
provisions of sections 312, 313 and 314 of the bombay
municipal corporation act violate the constitution. those
provisions are conceived in public interest and great care
is taken by the authorities to ensure that no harassment is
causedto any pavement dweller while enforcing the
provisions of those sections. the decision to remove such
encroachments was taken by the government with specific
instructions that every reasonable precaution ought to be
taken to cause the least possible inconvenience to the
pavement dwellers. what is more important, so the counter-
affidavit says, the government of maharashtra had decided
that, on the basis of
67
the census carried out in 1976, pavement dwellers who would
be uprooted should be offered alternate developed pitches at
malvani where they could construct their own hutments.
according to that census, about 2,500 pavement hutments only
were then in existence.
the counter-affidavit of the state government describes
the various steps taken by the central government under the
five year plan of 1978-83, in regard to the housing
programmes. the plan shows that the inadequacies of housing
policies in india have both quantitative and qualitative
dimensions. the total investment in housing shall have to be
of the magnitude of rs. 2790 crores, if the housing problem
has to be tackled even partially.
on behalf of the bombay municipal corporation, a
counter-affidavit has been filed by shri d.m. sukthankar,
municipal commissioner of greater bombay. that affidavit
shows that he had visited the pavements on the tulsi pipe
road (senapati bapat marg) and the western express high way,
vile parle (east), bombay. on july 23, 1981, certain
hutments on these pavements were demolished under section
314 of the bombay municipal corporation act. no prior notice
of demolition was given since the section does not provide
for such notice. the affidavit denies that the intense
speculation in land prices, as alleged, owes its origin to
the high rise buildings which have come up in the city of
bombay. it is also denied that there are vast vacant pieces
of land in the city which can be utilised for housing the
pavement dwellers. section 61 of the b.m.c. act lays down
the obligatory duties of the corporation. under clauses (c)
and (d) of the said section, it is the duty of the
corporation to remove excrementitious matters, refuse and
rubbish and to take measures for abatement of every kind of
nuisance. under clause(g) of that section, the corporation
is under an obligation to take measures for preventing and
checking the spread of dangerous diseases. under clause (o),
obstructions and projections in or upon public streets and
other public places have to be removed. section 63 (k)
empowers the corporation to take measures to promote public
safety, health or convenience, not specifically provided
otherwise. the object of sections 312 to 314 is to keep the
pavements and foot-paths free from encroachment so that the
pedestrians do not have to make use of the streets on which
there is heavy vehicular traffic. the pavement dwellers
answer the nature's call, bathe, cook and wash their clothes
and utensils on the foot-paths and on parts of public
streets adjoining the foot-
68
paths. their encroachment creates serious impediments in
repairing the roads, foot-paths and drains. the refusal to
allow the petitioners and other persons similarly situated
to use foot-paths as their abodes is, therefore, not
unreasonable, unfair, or unlawful. the basic civic
amenities, such as drainage, water and sanitation, cannot
possibly be provided to the pavement dwellers. since the
pavements are encroached upon, pedestrians are compelled to
walk on the streets, thereby increasing the risk of traffic
accidents and impeding the free flow of vehicular movement.
the municipal commissioner disputes in his counter-affidavit
that any fundamental right of the petitioners is infringed
by removal of the encroachment committed by them on public
property, especially the pavements. in this behalf, reliance
is placed upon an order dated july 27, 1981 of lentin j. of
the bombay high court, which recordsthat counsel for the
petitioners had stated expressly on july 24, 1981, that no
fundamental right could be claimed to put up a dwelling on
public foot-paths and public roads.
the municipal commissioner has stated in his counter-
affidavit in writ petitions 5068-79 of 1981 that the huts
near the western express highway, vile parle, bombay, were
constructed on an accessory road which is a part of the
highway itself. these hutments were never regularised by the
corporation and no registration numbers were assigned to
them.
in answer to the municipal commissioner's counter-
affidavit, petitioner no. 12. prafulla chandra bidwai who is
a journalist, has filed a rejoinder asserting that kamraj
nagar is not located on a foot-path or a pavement. according
to him, kamraj nagar is a basti off the highway, in which
the huts are numbered, the record in relation to which is
maintained by the road development department and the bombay
municipal corporation.contending that petitioners 1 to 5
have been residing inthe said basti for over 20 years, he
reiterates that the public has no right of way in or over
the kamraj nagar. he also disputes that the huts on the
foot-paths cause any obstruction to the pedestrians or to
the vehicular traffic or that those huts are a source of
nuisance or danger to public health and safety. his case in
paragraph 21 of his reply-affidavit seems to be that since,
the foot-paths are in the occupationof pavement dwellers
for a long time, foot-paths have ceased to be foot-paths. he
says that the pavement dwellers and the slum or basti
dwellers, who number about 47.7 lakhs, constitute about 50
per cent of the total population of greater bombay, that
they supply the major work force
69
for bombay from menial jobs to the most highly skilled jobs,
that they have been living in the hutments for generations,
that they have been making a significant contribution to the
economic life of the city and that, therefore, it is unfair
and unreasonable on the part of the state government and the
municipal corporation to destroy their homes and deport them
: a home is a home wherever it is. the main theme of the
reply-affidavit is that" the slum dwellers are the sine qua
non of the city. they are entitled to a quid pro quo. "it is
conceded expressly that the petitioners do not claim any
fundamental right to live on the pavements. the right
claimed by them is the right to live, at least to exist.
only two more pleadings need be referred to, one of
which is an affidavit of shri anil v. gokak, administrator
of maharashtra housing and areas development authority,
bombay, who was then holding charge of the post of
secretary, department of housing. he filed an affidavit in
answer to an application for the modification of an interim
order which was passed by this court on october 19, 1981. he
says that the legislature of maharashtra had passed the
maharashtra vacant land (prohibition of unauthorised
occupation and summary eviction) act, 1975 in pursuance of
which the government had decided to compile a list of slums
which were required to be removed in public interest. it was
also decided that after a spot inspection, 500 acres of
vacant land in and near the bombay suburban district should
be allocated for re-settlement of the hutment dwellers who
were removed from the slums. a task force was constituted by
the government for the purpose of carrying out a census of
the hutments standing on lands belonging to the government
of the maharashtra, the bombay municipal corporation and the
bombay housing board. a census was, accordingly, carried out
on january 4, 1976 by deploying about 7,000 persons to
enumerate the slum dwellers spread over approximately 850
colonies all over bombay. about 67 per cent of the hutment
dwellers from a total of about 2,60,000 hutments produced
photographs of the heads of their families, on the basis of
which hutments were numbered and their occupants were given
identity cards. it was decided that slums which were in
existence for a long time and which were improved and
developed would not normally be demolished unless the land
was required for a public purpose. in the event that the
land was so required, the policy of the state government was
to provide alternative accommodation to the slum dwellers
who were censused and possessed identity cards. this is
borne out by a circular of the government dated february 4,
1976 (no. sis 1176/d. 41). shri gokak says that the state
government has
70
issued instructions directing, inter alia, that "action to
remove the slums excepting those which are on the foot-paths
or roads or which are new or casually located should not,
therefore, be taken without obtaining approval from the
government to the proposal for the removal of such slums and
their rehabilitation." since, it was never the policy of the
government to encourage construction of hutments on foot-
paths, pavements or other places over which the public has a
right of way, no census of such hutments was ever intended
to be conducted. but, sometime in july 1981, when the
government officers made an effort to ascertain the
magnitude of the problem of evicting pavement dwellers, it
was discovered that some persons occupying pavements,
carried census cards of 1976. the government then decided to
allot pitches to such occupants of pavements.
the only other pleading which deserves to be noticed is
the affidavit of the journalist petitioner, ms. olga tellis,
in reply to the counter-affidavit of the government of
maharashtra. according to her, one of the important reasons
of the emergence and growth of squatter-settlements in the
metropolitan cities in india is, that the development and
master plans of most of the cities have not been adhered to.
the density of population in the bombay metropolitan region
is not high according to the town planning standards.
difficulties are caused by the fact that the population is
not evenly distributed over the region, in a planned manner.
new constructions of commercial premises, small-scale
industries and entertainment houses in the heart of the
city, have been permitted by the government of maharashtra
contrary to law and even residentialpremises have been
allowed to be converted intocommercial premises. this,
coupled with the fact that the state government has not
shifted its main offices to the northern region of the city,
has led to the concentration of the population in the
southern region due to the availability of job opportunities
in that region. unless economic and leisure activity is
decentralised, it would be impossible to find a solution to
the problems arising out of the growth of squatter colonies.
even if squatters are evicted, they come back to the city
because, it is there that job opportunities are available.
the alternate pitches provided to the displaced pavement-
dwellers on the basis of the so-called 1976 census, are not
an effective means totheir resettlement because, those
sites are situated far away from the malad railway station
involving cost and time which are beyond their means. there
are no facilities available at malavant like schools and
hospitals, which drives them back to the stranglehold of the
city. the permission granted to the
71
'national centre of performing arts' to construct an
auditorium at the nariman point, backbay reclamation, is
cited as a 'gross' instance of the short-sighted, suicidal
and discriminatory policy of the government of maharashtra.
it is as if the sea is reclaimed for the construction of
business and entertainment houses in the centre of the city,
which creates job opportunities to which the homeless flock.
they work therein and live on pavements. the grievance is
that, as a result of this imbalance, there are not enough
jobs available in the northern tip of the city. the
improvement of living conditions in the slums and the
regional distribution of job opportunities are the only
viable remedies for relieving congestion of the population
in the centre of the city. the increase allowed by the state
government in the floor space index over and above 1.33, has
led to a further concentration of population in the centre
of the city.
in the matter of housing, according toms. tellis'
affidavit, government has not put to the best use the
finances and resources available to it. there is a wide gap
between the demand and supply in the area of housing which
was in the neighbourhood of forty five thousand units in the
decade 1971-81. a huge amount of hundreds of crores of
rupees shall have to be found by the state government every
year during the period of the sixth plan if adequate
provision for housing is at all to be made. the urban land
ceiling act has not achieved its desired objective nor has
it been properly implemented. the employment schemes of the
state government are like a drop in the ocean and no steps
are taken for increasing job opportunities in the rural
sector. the neglect of health, education transport and
communication in that sector drives the rural folk to the
cities, not only in search of a living but in search of the
basic amenities of life. the allegation of the state
government regarding the criminal propensities of the
pavement dwellers is stoutly denied in the reply-affidavit
and it is said to be contrary to the studies of many
experts. finally, it is stated that it is no longer the
objective of the sixth plan to reverse the rate of growth of
metropolitan cities. the objective of the earlier plan
(1978-83) has undergone a significant change and the target
now is to ensure the growth of large metropolitan cities in
a planned manner. the affidavit claims that there is
adequate land in the bombay metropolitan region to absorb a
population of 20 million people, which is expected to be
reached by the year 2000 a.d.
the arguments advanced before us by ms. indira
jaisingh, mr. v.m. tarkunde and mr. ram jethmalani cover a
wide range but
72
the main thrust of the petitioners' case is that evicting a
pavement dweller or slum dweller from his habitat amounts to
depriving of his right to livelihood, which is comprehended
in the right guaranteed by article 21 of the constitution
that no person shall be deprived of his life except
according to procedure established by law. the question of
the guarantee of personal liberty contained in article 21
does not arise and was not raised before us. counsel for the
petitioners contended that the court must determine in these
petitions the content of the right to life, the function of
property in a welfare state, the dimension and true meaning
of the constitutional mandate that property must subserve
common good, the sweep of the right to reside and settle in
any part of the territory of india which is guaranteed by
article 19(1)(e) and the right to carry on any occupation,
trade or business which is guaranteed by article 19 (1)(g),
the competing claims of pavement dwellers on the one hand
and of the pedestrians on the other and, the larger question
of ensuring equality before the law. it is contended that it
is the responsibility of the courts to reduce inequalities
and social imbalances by striking down statutes which
perpetuate them. one of the grievances of the petitioners
against the bombay municipal corporation act, 1888 is that
it is a century old antiquated piece of legislation passed
in an era when pavement dwellers and slum dwellers did not
exist and the consciousness of the modern notion of a
welfare state was not present to the mind of the colonial
legislature. according to the petitioners, connectedwith
these issues and yet independent of them, is the question of
the role of the court in setting the tone of values in a
democratic society.
the argument which bears on the provisions of article
21 is elaborated by saying that the eviction of pavement and
slum dweller will lead, in a vicious circle, to the
deprivation of their employment, their livelihood and,
therefore, to the right to life. our attention is drawn in
this behalf to an extract from the judgment of douglas j in
baksey v. board of regents, 347 m.d. 442 (1954) in which the
learned judge said:
"the right to work i have assumed was the most
precious liberty that man possesses. man has
indeed, as much right to work as he has to live,
to be free and to own property. to work means to
eat and it also means to live."
73
the right to live and the right to work are integrated and
interdependent and, therefore, if a person is deprived of
his job as a result of his eviction from a slum or a
pavement, his very right to life is put in jeopardy. it is
urged that the economic compulsions under which these
persons are forced tolive in slums or on pavements impart
to their occupation the character of a fundamental right.
it is further urged by the petitioners that it is
constitutionally impermissible to characterise the pavement
dwellers as "trespassers" because, their occupation of
pavements arises from economic compulsions. the state is
under an obligation to provide to the citizens the
necessities of life and, in appropriate cases, the courts
have the power to issue order directing the state, by
affirmative action, to promote and protect the right to
life. the instant situation is one of crisis, which compels
the use of public property for the purpose of survival and
sustenance. social commitment is the quintessence of our
constitution which defines the conditions under which
liberty has to be enjoyed and justice has to be
administered. therefore, directive principles, which are
fundamental in the governance of the country, must serve as
a beacon light to the interpretation of the constitutional
provisions. viewed in this context, it is urged, the
impugned action of the state government and the bombay
municipal corporation is violative of the provisions
contained in articles 19(1)(e), 19(1)(g) and 21 of the
constitution. the paucity of financial resources of the
state is no excuse for defeating the fundamental rights of
the citizens.
 in support of this argument, reliance is placed by the
petitioners on what is described as the 'factual context'. a
publication dated january 1982 of the planning commission,
government of india, namely, 'the report of the expert group
of programmes for the alleviation of poverty', is relied on
as showing the high incidence of poverty in india. that
report shows that in 1977-78, 48% of the population lived
below the poverty line, which means that out of a population
of 303 million who lived below the poverty line, 252 million
belonged to the rural areas. in 1979-80 another 8 million
people from the rural areas were found to live below the
poverty line. a government of maharashtra publication
"budget and the new 20 point socio-economic programme"
estimates that there are about 45 lakh families in rural
areas of maharashtra who live below the poverty line.
another 40% was in the periphery of that area. one of the
major causes of the persistent rural poverty of landless
labourers,
74
marginal farmers, shepherds, physically handicapped persons
and others is the extremely narrow base of production
available to the majority of the rural population. the
average agricultural holding of a farmer is 0.4 hectares,
which is hardly adequate to enable him to make both ends
meet. landlesslabourers have no resource base at all and
they constitute the hard-core of poverty. due to economic
pressures and lack ofemployment opportunities, the rural
population is forced to migrate to urban areas in search of
employment. 'the economic survey of maharashtra' published
by the state government shows that the bulk of public
investment was made in the cities of bombay, pune and thane,
which created employment opportunities attracting the
starving rural population to those cities. the slum census
conducted by the government of maharashtra in 1976 shows
that 79% of the slum-dwellers belonged to the low income
group with a monthly income below rs.600. the study
conducted by p. ramachandran of the tata institute of social
sciences shows that in 1972,91% of the pavement dwellers had
a monthly income of less than rs.200. the cost of obtaining
any kind of shelter in bombay is beyond the means of a
pavement dweller. the principal public housing sectors in
maharashtra, namely, the maharashtra housing and area
development agency (mhada) and the city and industrial
development corporation of maharashtra ltd. (cidco) have
been able to construct only 3000 and 1000 units respectively
as against the annualneed of 60,000 units. in any event,
the cost of housing provided even by these public sector
agencies is beyond the means of the slum and pavement-
dwellers. under the urban land (ceiling and regulation) act
1975, private land owners and holders are given facility to
provide housing to the economically weaker sections of the
society at a stipulated price of rs.90 per sq.ft., which
also is beyond the means of the slum and pavement-dwellers.
the reigning market price of houses in bombay varies from
rs.150 per sq.ft. outside bombay to rs.2000 per sq.ft. in
the centre of the city.
the petitioners dispute the contention of the
respondents regarding the non-availability of vacant land
for allotment to houseless persons. according to them, about
20,000 hectares of unencumbered land is lying vacant in
bombay. the urban land (ceiling and regulation) act,1975 has
failed to achieve its object as is evident from the fact
that in bombay, 5% of the land-holders own 55% of the land.
even though 2952.83 hectares of urban land is available for
being acquired by the state government as being in excess of
the permissible ceiling area, only 41.51% of this excess
land was, so far, acquired. thus, the
75
reason why there are homeless people in bombay is not that
there is no land on which homes can be built for them but,
that the planning policy of the state government permits
high density areas to develop with vast tracts of land lying
vacant. the pavement-dwellers and the slum-dwellers who
constitute 50% of the population of bombay, occupy only 25%
of the city's residential land. it is in these circumstances
that out of sheer necessity for a bare existence, the
petitioners are driven to occupy the pavements and slums.
they live in bombay because they are employed in bombay and
they live on pavements because there is no other place where
they can live. this is the factual context in which the
petitioners claim the right under articles 19(1)(e) and (g)
and article 21 of the constitution.
the petitioners challenge the vires of section 314 read
with sections 312 and 313 of the bombay municipal
corporation act, which empowers the municipal commissioner
to remove, without notice, any object or structure or
fixture which is set up in or upon any street. it is
contended that, in the first place, section 314 does not
authorise the demolition of a dwelling even on a pavement
and secondly, that a provision which allows the demolition
of a dwelling without notice is not just, fair or
reasonable. such a provision vests arbitrary and unguided
power in the commissioner. it also offends against the
guarantee of equality because, it makes an unjustified
discrimination between pavement dwellers on the one hand and
pedestrians on the other. if the pedestrians are entitled to
use the pavements for passing and repassing, so are the
pavement dwellers entitled to use pavements for dwelling
upon them. so the argument goes. apart from this, it is
urged, the restrictions which are sought to be imposed by
the respondents on the use of pavements by pavement-dwellers
are not reasonable. a state which has failed in its
constitutional obligation to usher a socialistic society has
no right to evict slum and pavement-dwellers who constitute
half of the city's population. therefore, sections 312,313
and 314 of the b.m.c. act must either be read down or struck
down.
according to the learned attorney-general, mr.
k.k.singhvi and mr. shankaranarayanan who appear for the
respondents, no one has a fundamental right, whatever be the
compulsion, tosquat on or construct a dwelling on a
pavement, public road or any other place to which the public
has a right of access. the right conferred by article
19(1)(e) of the constitution to reside and settle in any
part of india cannot be read to confer a licence to encroach
and trespass upon public property. sections 3(w) and
76
(x) of the b.m.c. act define "street" and "public street" to
include a highway, a footway or a passage on which the
public has the right of passage or access. under section
289(1) of the act, all pavements and public streets vest in
the corporation and are under the control of the
commissioner. in so far as article 21 is concerned, no
deprivation of life, either directly or indirectly, is
involved in the eviction of the slum and pavement-dwellers
from public places. the municipal corporation is under an
obligation under section 314 of the b.m.c. act to remove
obstructions on pavements, public streets and other public
places. the corporation does not even possess the power to
permit any person to occupy a pavement or a public place on
a permanent or quasi-permanent basis. the petitioners have
not only violated the provisions of the b.m.c. act, but they
have contravened sections 111 and 115 of the bombay police
act also. these sections prevent a person from obstructing
any other person in the latter's use of a street or public
place or from committing a nuisance. section 117 of the
police act prescribes punishment for the violation of these
sections.
we will first deal with the preliminary objection
raised by mr. k.k.singhvi, who appears on behalf of the
bombay municipal corporation, that the petitioners are
estopped from contending that their huts cannot be
demolished by reason of the fundamental rights claimed by
them. it appears that a writ petition, no. 986 of 1981, was
filed on the original side of the bombay high court by and
on behalf of the pavement dwellers claiming reliefs similar
to those claimed in the instant batch of writ petitions. a
learned single judge granted an ad-interim injunction
restraining the respondents from demolishing the huts and
from evicting the pavement dwellers. when the petition came
up for hearing on july 27, 1981, counsel for the petitioners
made a statement in answer to a query from the court, that
no fundamental right could be claimed to put up dwellings on
foot-paths or public roads. upon this statement, respondents
agreed not to demolish until october 15, 1981, huts which
were constructed on the pavements or public roads prior to
july 23,1981. on august 4, 1981, a written undertaking was
given by the petitioners agreeing, inter alia, to vacate the
huts on or before october 15, 1981 and not to obstruct the
public authorities from demolishing them. counsel appearing
for the state of maharashtra responded to the petitioners'
undertaking by giving an undertaking on behalf of the state
government that, until october 15, 1981, no pavement dweller
will be removed out of the city against his wish. on the
basis of these undertakings, the learned judge disposed of
the
77
writ petition without passing any further orders. the
contention of the bombay municipal corporation is that since
the pavement dwellers had conceded in the high court that
they did not claim any fundamental right to put up huts on
pavements or public roads and since they had given an
undertaking to the high court that they will not obstruct
the demolition of the huts after october 15, 1981 they are
estopped from contending in this court that the huts
constructed bythem on the pavements cannot be demolished
because of their right to livelihood, which is comprehended
within the fundamental right to life guaranteed by article
21 of the constitution.
it is not possible to accept the contention that the
petitioners are estopped from setting up their fundamental
rights as a defence to the demolition of the huts put up by
them on pavements or parts of public roads. there can be no
estoppel against the constitution. the constitution is not
only the paramount law of the land but, it is the source and
substance of all laws. its provisions are conceived in
public interest and are intended to serve a public purpose.
the doctrine of estoppel is based on the principle that
consistency in word and action imparts certainty and honesty
to human affairs. if a person makes a representation to
another, on the faith of which the latter acts to his
prejudice, the former cannot resile from the representation
made by him. he must make it good. this principle can have
no application to representations made regarding the
assertion or enforcement of fundamental rights. for example,
the concession made by a person that he does not possess and
would not exercise his right to free speech and expression
or the right to move freely throughout the territory of
india cannot deprive him of those constitutional rights, any
more than a concession that a person has no right of
personal liberty can justify his detention contrary to the
terms of article 22 of the constitution. fundamental rights
are undoubtedly conferred by the constitution upon
individuals which have to be asserted and enforced by them,
if those rights are violated. but, the high purpose which
the constitution seeks to achieve by conferment of
fundamental rights is not only to benefit individuals but to
secure the larger interests of the community. the preamble
of the constitution says that india is a democratic
republic. it is in order to fulfil the promise of the
preamble that fundamental rights are conferred by the
constitution, some on citizens like those guaranteed by
articles 15,16,19,21 and 29, and some on citizens and non-
citizens alike, like those guaranteed by articles
78
14,21,22 and 25 of the constitution. no individual can
barter away the freedoms conferred upon him by the
constitution. a concession made by him in a proceeding,
whether under a mistake of law or otherwise, that he does
not possess or will not enforce any particular fundamental
right, cannot create an estoppel against him in that or any
subsequent proceeding. such a concession, if enforced, would
defeat the purpose of the constitution. were the argument of
estoppel valid, an all-powerful state could easily tempt an
individual to forego his precious personal freedoms on
promise of transitory, immediate benefits. therefore,
notwithstanding the fact that the petitioners had conceded
in the bombay high court that they have no fundamental right
to construct hutments on pavements and that they will not
object to their demolition after october 15, 1981, they are
entitled to assert that any such action on the part of
public authorities will be in violation of their fundamental
rights. how far the argument regarding the existence and
scope of the right claimed by the petitioners is well-
founded is another matter. but, the argument has to be
examined despite the concession.
the plea of estoppel is closely connected with the plea
of waiver, the object of both being to ensure bona fides in
day-today transactions. in basheshar nath v. the
commissioner of income tax delhi, [1959] supp. 1 s.c.r. 528
a constitution bench of this court considered the question
whether the fundamental rights conferred by the constitution
can be waived. two members of the bench (das c.j. and kapoor
j.) held that there can be no waiver of the fundamental
right founded on article 14 of the constitution. two others
(n.h.bhagwati and subba rao,jj.) held that not only could
there be no waiver of the right conferred by article 14, but
there could be no waiver of any other fundamental right
guaranteed by part iii of the constitution. the constitution
makes no distinction, according to the learned judges,
between fundamental rights enacted for the benefit of an
individual and those enacted in public interest or on
grounds of public policy.
we must, therefore, reject the preliminary objection
and proceed to consider the validityof the petitioners'
contentions on merits.
the scope of the jurisdiction of this court to deal
with writ petitions under article 32 of the constitution was
examined by a special bench of this court in smt. ujjam bai
v. state of uttar pradesh. [1963] 1 s.c.r. 778. that
decision would
79
show that, in three classes of cases, the question of
enforcement of the fundamental rights would arise, namely,
(1) where action is taken under a statute which is ultra
vires the constitution ; (2) where the statute is intra
vires but the action taken is without jurisdiction; and (3)
an authority under an obligation to act judicially passes an
order in violation of the principles of natural justice.
these categories are, of course, not exhaustive. in naresh
shridhar mirajkar v. state of maharashtra, [1966] 3 s.c.r.
744-770, a special bench of nine learned judges of this
court held that, where the action taken against a citizen is
procedurally ultra vires, the aggrieved party can move this
court under article 32. the contention of the petitioners is
that the procedure prescribed by section 314 of the b.m.c.
act being arbitrary and unfair, it is not "procedure
established by law" within the meaning of article 21 and,
therefore, they cannot be deprived of their fundamental
right to life by resorting to that procedure. the petitions
are clearly maintainable under article 32 of the
constitution.
as we have stated while summing up the petitioners'
case, the main plank of their argument is that the right to
life which is guaranteed by article 21 includes the right to
livelihood and since, they will be deprived of their
livelihood if they are evicted from their slum and pavement
dwellings, their eviction is tantamount to deprivation of
their life and is hence unconstitutional. for purposes of
argument, we will assume the factual correctness of the
premise that if the petitioners are evicted from their
dwellings, they will be deprived of their livelihood. upon
that assumption, the question which we have to consider is
whether the right to life includes the right to livelihood.
we see only one answer to that question, namely, that it
does. the sweep of the right to life conferred by article 21
is wide and far reaching. it does not mean merely that life
cannot be extinguished or taken away as, for example, by the
imposition andexecution of the death sentence, except
according to procedure established by law. that is but one
aspect of the right to life. an equally important facet of
that right is the right to livelihood because, no person can
live without the means of living, that is, the means of
livelihood. if the right to livelihood is not treated as a
part of the constitutional right to life, the easiest way of
depriving a person his right to life would be to deprive him
of his means of livelihood to the point of abrogation. such
deprivation would not only denude the life of its effective
content and meaningfulness but it would make life impossible
to live. and yet, such deprivation would not have to
80
be in accordance with the procedure established by law, if
the right to livelihood is not regarded as a part of the
right to life. that, which alone makes it possible to live,
leave aside what makes life livable, must be deemed to be an
integral component of the right to life. deprive a person of
his right to livelihood and you shall have deprived him of
his life. indeed, that explains the massive migration of the
rural population to big cities. they migrate because they
have no means of livelihood in the villages. the motive
force which people their desertion of their hearths and
homes in the village s that struggle for survival, that is,
the struggle for life. so unimpeachable is the evidence of
the nexus between life and the means of livelihood. they
have to eat to live: only a handful can afford the luxury of
living to eat. that they can do, namely, eat, only if they
have the means of livelihood. that is the context in which
it was said by douglas j. in baksey that the right to work
is the most preciousliberty because, it sustains and
enables a man to live and the right to life is a precious
freedom. "life", as observed by field, j. in munn v.
illinois, (1877) 94 u.s. 113, means something more than mere
animal existence and the inhibition against the deprivation
of life extends to all those limits and faculties by which
life is enjoyed. this observation was quoted with approval
by this court in kharak singh v. the state of u.p., [1964] 1
s.c.r. 332.
article 39(a) of the constitution, which is a directive
principle of state policy, provides that the state shall, in
particular, direct its policy towards securing that the
citizens, men and women equally, have the right to an
adequate means of livelihood. article 41, which is another
directive principle, provides, inter alia, that the state
shall, within the limits of its economic capacity and
development, make effective provision for securing the right
to work in cases of unemployment and of undeserved want.
article 37 provides that the directive principles, though
not enforceable by any court, are nevertheless fundamental
in the governance of the country. the principles contained
in articles 39 (a) and 41 must be regarded as equally
fundamental in the understanding and interpretation of the
meaning and content of fundamental rights. if there is an
obligation upon the state to secure to the citizens an
adequate means of livelihood and the right to work, it would
be sheer pedantry to exclude the right to livelihood from
the content of the right to life. the state may not, by
affirmative action, be compellable to provide adequate means
of livelihood or work to the citizens. but, any person, who
is deprived of his right to livelihood
81
except according to just and fair procedure established by
law, can challenge the deprivation as offending the right to
life conferred by article 21.
learned counsel for the respondents placed strong
reliance on a decision of this court in in re: sant ram,
[1960] 3 s.c.r. 499, in support of their contention that the
right to life guaranteed by article 21 does not include the
right to livelihood. rule 24 of the supreme court rules
empowers the registrar to publish lists of persons who are
proved to be habitually acting as touts. the registrar
issued a notice to the appellant and one other person to
show cause why their names should not be included in the
list of touts. that notice was challenged by the appellant
on the ground, inter alia, that it contravenes article 21 of
the constitution since, by the inclusion of his name in the
list of touts, he was deprived of his right to livelihood,
which is included in the right to life. it was held by a
constitution bench of this court that the language of
article 21 cannot be pressed in aid of the argument that the
word `life' in article 21 includes `livelihood' also. this
decision is distinguishable because, under the constitution,
no person can claim the right to livelihood by the pursuit
of an opprobrious occupation or a nefarious trade or
business, like tourism, gambling or living on the gains of
prostitution. the petitioners before us do not claim the
right to dwell on pavements or in slums for the purpose of
pursuing any activity which is illegal, immoral or contrary
to public interest. many of them pursue occupations which
are humble but honourable.
turning to the factual situation, how far is it true to
say that if the petitioners are evicted from their slum and
pavement dwellings, they will be deprived of their means of
livelihood? it is impossible, in the very nature of things,
together reliable data on this subject in regard to each
individual petitioner and, none has been furnished to us in
that form. that the eviction of a person from a pavement or
slum will inevitably lead to the deprivation of his means of
livelihood, is a proposition which does not have to be
established in each individual case. that is an inference
which can be drawn from acceptable data. issues of general
public importance, which affect the lives of large sections
of the society, defy a just determination if their
consideration is limited to the evidence pertaining to
specific individuals. in the resolution of such issues,
there are no symbolic samples which can effectively project
a true picture of
82
the grim realities of life. the writ petitions before us
undoubtedly involve a question relating to dwelling houses
but, they cannot be equated with a suit for the possession
of a house by one private person against another. in a case
of the latter kind, evidence has to be led to establish the
cause of action and justify the claim. in a matter like the
one before us, in which the future of half of the city's
population is at stake, the court must consult authentic
empirical data compiled by agencies, official and non-
official. it is by that process that the core of the problem
can be reached and a satisfactory solution found. it would
be unrealistic on our part to reject the petitions on the
ground that the petitioners have notadduced evidence to
show that they will be rendered jobless if they are evicted
from the slums and pavements. commonsense, which is a
cluster of life's experiences, is often more dependable than
the rival facts presented by warring litigants.
it is clear from the various expert studies to which we
have referred while setting out the substance of the
pleadings that, one of the main reasons of the emergence and
growth of squatter-settlements in big metropolitan cities
like bombay, is the availability of job opportunities which
are lacking in the rural sector. the undisputed fact that
even after eviction, the squatters return to the cities
affords proof of that position. the planning commission's
publication, `the report of the expert group of programmes
for the alleviation of poverty' (1982) shows that half of
the population in india lives below the poverty line, a
large part of which lives in villages. a publication of the
government of maharashtra, `budget and the new 20 point
socio-economic programme' shows that about 45 lakhs of
families in rural areas live below the poverty line and
that, the average agricultrual holding of a farmer, which is
0.4 hectares, is hardly enough to sustain him and his
comparatively large family. the landless labourers, who
constitute the bulk of the village population, are deeply
imbedded in the mire of poverty. it is due to these economic
pressures that the rural population is forced to migrate to
urban areas in search of employment. the affluent and the
not-so-affluent are alike in search of domestic servants.
industrial and business houses pay a fair wage to the
skilled workman that a villager becomes in course of time.
having found a job, even if it means washing the pots and
pans, the migrant sticks to the big city. if driven out, he
returns in quest of another job. the cost of public sector
housing is beyond his modest means and the less we refer to
the deals of private builders the better for all; excluding
none. added to
83
these factors is the stark reality of growing insecurity in
villages on account of the tyranny of parochialism and
casteism. the announcement made by the maharashtra chief
minister regarding the deportation of willing pavement
dwellers afford some indication that they are migrants from
the interior areas, within and outside maharashtra. it is
estimated that about 200 to 300 people enter bombay every
day in search of employment. these facts constitute
empirical evidence to justify the conclusion that persons in
the position of petitioners live in slums and on pavements
because they have small jobs to nurse in the city and there
is no where else to live. evidently, they choose a pavement
or a slum in the vicinity of their place of work, the time
otherwise taken in commuting and its cost being forbidding
for their slender means. to loss the pavement or the slum is
to lose the job. the conclusion, therefore in terms of the
constitutional phraseology is that the eviction of the
petitioners will lead to deprivation of their livelihood and
consequently to the deprivation of life.
two conclusions emerge from this discussion: one, that
the right to life which is conferred by article 21 includes
the right to livelihood and two, that it is established that
if the petitioners are evicted from their dwellings, they
will be deprived of their livelihood. but the constitution
does not put an absolute embargo on the deprivation of life
or personal liberty. by article 21, such deprivation has to
be according to procedure established by law. in the instant
case, the law which allows the deprivation of the right
conferred by article 21 is the bombay municipal corporation
act, 1888, the relevant provisions of which are contained in
sections 312(1),313(1)(a) and 314. these sections which
occur in chapter xi entitled `regulation of streets' read
thus :
section 312 - prohibition of structures or fixtures
which cause obstruction in streets.
(1) no person shall, except with the permission of
the commissioner under section 310 or 317 arect or
set up any wall, fence, rail, post, step, booth or
other structure or fixture in or upon any street
or upon or over any open channel, drain well or
tank in any street so as to form an obstruction
to, or an encroachment upon, or a projection over,
or to occupy, any portion or such street,
channel, drain, well or tank".
84
"section 313 - prohibition of deposit, etc., of things
in streets.
(1) no person shall, except with the written
permission of the commissioner, -
(a) place or deposit upon any street or upon any
open channel drain or well in any streets (or in
any public place) any stall, chair, bench, box,
ladder, bale or other thing so as to form an
obstruction thereto or encroachment thereon."
 "section 314 - power to remove without notice anything
erected deposited or hawked in
contravention of section 312,313 or 313
a.
the commissioner may, without notice, cause to be
removed -
(a) any wall, fence, rail, post, step, booth or
other structure or fixture which shall be erected
or set up in or any street, or upon or over any
open channel, drain, well or tank contrary to the
provisions of subsection (1) of section 312, after
the same comes into force in the city or in the
suburbs, after the date of the coming into force
of the bombay municipal (extension of limits) act,
1950 or in the extended suburbs after the date of
the coming into force of the bombay municipal
further extension of limits and schedule bba
(amendment) act, 1956;
(b) any stall, chair, bench, box, ladder, bale,
board or shelf, or any other thing whatever
placed, deposited, projected, attached, or
suspended in, upon, from or to any place in
contravention of sub-section (1) of section 313;
(c) any article whatsoever hawked or exposed for
sale in any public place or in any public street
in contravention of the provisions of section 313a
and any vehicle, package, box, board, shelf or any
other thing in or on which such article is placed
or kept for the purpose of sale."
by section 3(w), "street" includes a causeway, footway,
passage etc., over which the public have a right of passage
or access.
85
these provisions, which are clear and specific, empower
the municipal commissioner to cause to be removed
encroachments on footpaths or pavements over which the
public have a right of passage or access. it is undeniable
that, in these cases, wherever constructions have been put
up on the pavements, the public have a right of passage or
access over those pavements. the argument of the petitioners
is that the procedureprescribed by section 314 for the
removal of encroachments from pavements is arbitrary and
unreasonable since, not only does it not provide for the
giving of a notice before the removal of an encroachment
but, it provides expressly that the municipal commissioner
may cause the encroachment to be removed "without notice".
it is far too well-settled to admit of any argument
that the procedure prescribed by law for the deprivation of
the right conferred by article 21 must be fair, just and
reasonable. (see e.p.royappa v. state of tamil nadu, [1974]
2 s.c.r. 348; maneka gandhi v. union of india, [1978] 2
s.c.r. 621; m.o.hoscot v. state of maharashtra, [1979] 1
s.c.r. 192; sunil batra, i v. delhi administration, [1979] 1
s.c.r. 392; sita ram v. state of u.p., [1979] 2 s.c.r. 1085;
hussainara khatoon, i v. home secretary, state of bihar,
patna, [1979] 3 s.c.r. 532,537; hussainara khatoon, ii v.
home secretary, state of bihar, patna, [1980] 1 s.c.c. 81;
sunil batra, ii v. delhi administration, [1980] 2 s.c.r.
557; jolly george verghese v. the bank of cochin, [1980] 2
s.c.r. 913,921-922; kasturi lal lakshmi keddy v. state of
jammu & kashmir, [1980] 3 s.c.r. 1338,1356; and francis
coralie mullin v. the administrator, union territory of
delhi, [1981] 2 s.c.r. 516,523-24.)
just as a mala fide act has no existence in the eye of
law, even so, unreasonableness vitiates law and procedure
alike. it is therefore essential that the procedure
prescribed by law for depriving a person of his fundamental
right, in this case the right to life, must confirm to the
norms of justice and fairplay. procedure, which is unjust or
unfair in the circumstances of a case, attracts the vice of
unreasonableness, thereby vitiating the law which prescribes
that procedureand consequently, the action taken under it.
any action taken by a public authority which is invested
with statutory powers has, therefore, to be tested by the
application of two standards: the action must be within the
scope of the authority conferred by law and secondly, it
must be reasonable. if any action, within the scope of the
authority conferred by law, is found to be unreasonable it
must mean that the procedure established by law under which
that
86
action is taken is itself unreasonable. the substance of the
law cannot be divorced from the procedure which it prescribe
for, how reasonable the law is, depends upon how fair is the
procedure prescribed by it, sir raymond evershad says that,
from the point of view of the ordinary citizen, it is the
procedure thatwill most strongly weigh with him. he will
tend to form his judgment of the excellence or otherwise of
the legal system from his personal knowledge and experience
in seeing the legal machine at work", [`the influence of
remedies on rights' (current legal problems 1953, volume
6.)]. therefore, he that takes the procedural sword shall
perish with the sword. "[per frankfurter j. in viteralli v.
seton 3 l.ed. (2nd series) 1012]
justice k.k.mathew points out in his article on `the
welfare state, rule of law and natural justice', which is to
be found in his book `democracy, equality and freedom', that
there is "substantial agreement in juristic thought that the
great purpose of the rule of law notion is the protection of
the individual against arbitrary exercise of power wherever
it is found". adopting that formulation, bhagwati j.,
speaking for the court, observed in ramana dayaram, shetty
v. the international airport authority of india, [1979] 3
s.c.r. 1014,1032 that it is "unthinkable that in a democracy
governed by the rule of law, the executive government or any
of its officers should possess arbitrary power over the
interest of the individual. every action of the executive
government must be informed with reason and should be free
from arbitrariness. that is the very essence of the rule of
law and its bare minimal requirement".
having given our anxious and solicitous consideration
to this question, we are of the opinion that the procedure
prescribed by section 314 of the bombay municipal
corporation act for removal of encroachments on the
footpaths or pavements over which the public has the right
of passage or access, cannot be regarded as unreasonable,
unfair or unjust. there is no static measure of
reasonableness which can be applied to all situations alike.
indeed, the question "is this procedure reasonables implies
and postulatesthe inquiry as to whether the procedure
prescribed is reasonable in the circumstances of the case,
in francis coralie mullin, [1981] 2 s.c.r. 516, bhagwati,j.,
said :
"... ... it is for the court to decide in exercise
of its constitutional power of judicial review
whether the deprivation of life or personal
liberty in a given
87
case is by procedure, which is reasonable, fair
and just or it is otherwise." (emphasis supplied,
page 524).
in the first place, footpaths or pavements are public
properties which are intended to serve the convenience of
the general public. they are not laid for private use and
indeed, their use for a private purpose frustrates the very
object for which they are carved out from portions of public
streets. the main reason for laying out pavements is to
ensure that the pedestrians are able to go about their daily
affairs with a reasonable measure of safety and security.
that facility, which has matured into a right of the
pedestrians, cannot be set at naught by allowing
encroachments to be made on the pavements. there is no
substance in the argument advanced on behalf of the
petitioners that the claim of the pavement dwellers to put
up constructions on pavements and that of the pedestrians to
make use of the pavements for passing and repassing, are
competing claims and that the former should be preferred to
the latter. no one has the right to make use of a public
property for a private purpose without the requisite
authorisation and, therefore, it is erroneous to contend
that the pavement dwellers have the right to encroach upon
pavement by constructing dwellings thereon. public streets,
of which pavements form a part, are primarily dedicated for
the purpose of passage and, even the pedestrians have but
the limited right of using pavementsfor the purpose of
passing and repassing. so long as a person does not
transgress the limited purpose for which pavements are made,
his use thereof is legitimate and lawful. but, if a person
puts any public property to a use for which it is not
intended and is not intended and is not authorised so to use
it, he becomes a trespasser. the common example which is
cited in some of the english cases (see, for example,
hickman v. maisey, [1900] 1 q.b. 752, is that if a person,
while using a highway for passage, sits down for a time to
rest himself by the side of the road, he does not commit a
trespass. but, if a person puts up a dwelling on the
pavement, whatever may be the economic compulsions behind
such an act, his user of the pavement would become
unauthorised. as stated in hickman, it is not easy to draw
an exact line between the legitimate user of a highway as a
highway and the user which goes beyond the right conferred
upon the public by its dedication. but, as in many other
cases, it is not difficult to put cases well on one side of
the line. putting up a dwelling on the pavement is a case
which is clearly on one side of the line showing that it is
an act of trespass. section 61 of the bombay municipal
corporation act lays down the obligatory
88
duties of the corporation, under clause (d) of which, it is
its duty to take measures for abetment of all nuisances. the
existence of dwellings on the pavements is unquestionably a
source of nuisance tothe public, at least for the reason
that they are denied the use of pavements for passing and
repassing. they are compelled, by reason of the occupation
of pavements by dwellers, to use highways and public streets
as passages. the affidavit filed on behalf of the
corporation shows that the fall-out of pedestrians in large
numbers on highways and streets constitutes a grave traffic
hazard. surely, pedestrians deserve consideration in the
matter of their physical safety, which cannot be sacrificed
in order to accommodate persons who use public properties
for a private purpose, unauthorizedly. under clause (c) of
section 61 of the b.m.c. act, the corporation is under an
obligation to remove obstructions upon public streets
another public places. the counter-affidavit of the
corporation shows that the existence of hutments on
pavements is a serious impediment inrepairing the roads,
pavements, drains and streets. section 63(k), which is
discretionary, empowers the corporation to take measures to
promote public safety, health or convenience not
specifically provided otherwise. since it is not possible to
provide any public conveniences to the pavement dwellers on
or near the pavements, they answer the nature's call on the
pavements or on the streets adjoining them. these facts
provide the background to the provision for removal of
encroachments on pavements and footpaths.
the challenge of the petitioners to the validity of the
relevant provisions of the bombay municipal corporation act
is directed principally at the procedure prescribed by
section 314 of that act, which provides by clause (a) that
the commissioner may, without notice, take steps for the
removal of encroachments in or upon ay street, channel,
drain, etc. by reason of section 3(w), `street' includes a
causeway, footway or passage. in order to decide whether the
procedure prescribed by section 314 is fair and reasonable,
we must first determine the true meaning of that section
because, the meaning of the law determines its legality. if
a law is found to direct the doing of an act which is
forbidden by the constitution or to compel, in the
performance of an act, the adoption of a procedure which is
impermissible under the constitution, it would have to be
struck down. considered in its proper perspective, section
314 is in the nature of an enabling provision and not of a
compulsive character. it enables the commissioner, in
appropriate cases, to dispense with previous notice to
persons who are likely to be affected by the proposed
89
action. it does not require and, cannot be read to mean
that, in total disregard of the relevant circumstances
pertaining to a given situation, the commissioner must cause
the removal of an encroachment without issuing previous
notice. the primary rule of construction is that the
language of the law must receive its plain and natural
meaning. what section 314 provides is that the commissioner
may, without notice, cause an encroachment to be removed. it
does not command that the commissioner shall, without
notice, cause an encroachment to be removed. putting it
differently, section 314 confers on the commissioner the
discretion to cause an encroachment to be removed with or
without notice. that discretion has to be exercised in a
reasonable manner so as to comply with the constitutional
mandate that the procedure accompanying the performance of a
public act must be fair and reasonable. we must lean in
favour of this interpretation because it helps sustain the
validity of the law. reading section 314 as containing a
command not to issue notice before the removal of an
encroachment will make the law invalid.
it must further be presumed that, while vesting in the
commissioner the power toact without notice, the
legislature intended that the power should be exercised
sparingly and in cases of urgency which brook no delay. in
all other cases, no departure from the audi alteram partem
rule ('hear the other side') could be presumed to have been
intended. section 314 is so designed as to exclude the
principles of natural justice by way of exemption and not as
a general rule. there are situations which demand the
exclusion of the rules of natural justice by reason of
diverse factors like time, place the apprehended danger and
so on. the ordinary rule which regulates all procedure is
that persons who are likely to be affected by the proposed
action must be afforded an opportunity of being heard as to
why that action should not be taken. the hearing may be
given individually or collectively, depending upon the facts
of each situation. a departure from this fundamental rule of
natural justice may be presumed to have been intended by the
legislature only in circumstances which warrant it. such
circumstances must be shown to exist, when so required, the
burden being upon those who affirm their existence.
it was urged by shri k.k.singhvi on behalf of the
municipal corporation that the legislature may well have
intended that no notice need be given in any case whatsoever
because, no useful purpose could be served by issuing a
notice as to why an encroachment on a public property should
not be removed. we have indicated above that far from so
intending, the legislature has left
90
it to the discretion of the commissioner whether or not to
give notice, a discretion which has to be exercised
reasonably. counsel attempted to demonstrate the practical
futility of issuing the show cause notice by pointing out
firstly, that the only answer which a pavement dweller, for
example, can make to such a notice is that he is compelled
to live on the pavement because he has no other place to go
to and secondly, that it is hardly likely that in pursuance
of such a notice, pavement dwellers or slum dwellers would
ask for time to vacate since, on their own showing, they are
compelled to occupy some pavement or slum or the other if
they are evicted. it may be true to say that, in the
generality of cases, persons who have committed
encroachments on pavements or on other public properties may
not have an effective answer to give. it is a notorious fact
of contemporary life in metropolitan cities, that no person
in his senses would opt to live on a pavement or in a slum,
if any other choice were available to him. anyone who cares
to have even a fleeting glance at the pavement or slum
dwellings will see that they are the very hell on earth.
but, though this is so, the contention of the corporation
that no notice need be givenbecause, there can be no
effective answer to it, betrays a misunderstanding of the
rule of hearing, which is an important element of the
principles of natural justice. the decision to dispense with
notice cannot be founded upon a presumed impregnability of
the proposed action. for example, in the common run of
cases, a person may contend in answer to a notice under
section 314 that (i) there was, in fact, no encroachment on
any public road, footpath or pavement, or (ii) the
encroachment was so slight and negligible as to cause no
nuisance or inconvenience to other members of the public, or
(iii) time may be granted for removal of the encroachment in
view of humane consideration arising out of personal,
seasonal or other factors. it would not be right to assume
that the commissioner would reject these or similar other
considerations without a careful application of mind. human
compassion must soften the rough edges of justice in all
situation. the eviction of the pavement or slum dweller not
only means his removal from the house but the destruction of
the house itself. and the destruction of a dwelling house is
the end of all that one holds dear in life. humbler the
dwelling, greater the suffering and more intense the sense
of loss.
the proposition that notice need not be given of a
proposed action because, there can possibly be no answer to
it, is contrary to the well-recognized understanding of the
real import of the rule of hearing. that proposition
overlooks that justice must
91
not only be done but must manifestly be seen to be done and
confuses one for the other. the appearance of injustice is
the denial of justice. it is the dialogue with the person
likely to be affected by the proposed action which meets the
requirement that justice must also be seen to be done.
procedural safeguards have their historical origins in the
notion that conditions of personal freedom can be preserved
only when there is some institutional check on arbitrary
action on the part of public authorities. (kadish,
"methodology and criteria in due process adjudication - a
survey and criticism," 66 yale l.j. 319,340 [1957]. the
right to be heard has two facets, intrinsic and
instrumental. the intrinsic value of that right consists in
the opportunity which it gives to individuals or groups,
against whom decision taken by public authorities operate,
to participate in the processes by which those decisions are
made, an opportunity that expresses their dignity as
persons. (golberg v. kelly, 397 u.s. 254, 264-65 [1970]
right of the poor to participate in public processes).
"whatever its outcome, such a hearing represents a
valued human interaction in which the affected
person experience at least the satisfaction of
participating in the decision that vitally
concerns her, and perhaps the separate
satisfaction of receiving an explanation of why
the decision is being made in a certain way. both
the right to be heard from, and the right to be
told why, are analytically distinct from the right
to secure a different outcome; these rights to
inter change express the elementary idea that to
be a person, rather than a thing is at least to be
 consulted about what is done with one. justice
frankfurter captured part of this sense of
procedural justice when he wrote that the
"validity and moral authority of a conclusion
largely depend on the mode by which it was
reached......... no better instrument has been
devised for arriving at truth than to give a
person in jeopardy of serious loss notice of the
case against him and opportunity to meet it. nor
has a better way been found for generation the
feeling, so important to a popular government,
that justice has been done". joint anti-fascist
refugee committee v. mc grath, 341, u.s. 123, 171-
172 (1951). at stake here is not just the much-
acclaimed appearance of justice but, from a
perspective that treats process as intrinsically
significant, the very essence of justice", (see
american
92
constitutional law" by laurence h. tribe,
professor of law, harvard university (ed. 1978,
page 503).
the instrumental facet of the right of hearing consists in
the means which it affords of assuring that the public rules
of conduct, which result in benefits and prejudices alike,
are in fact accurately and consistently followed.
"it ensures that a challenged action accurately
reflects the substantive rules applicable to such
action; its point is less to assure participation
than to use participation to assure accuracy."
any discussion of this topic would be incomplete
without reference to an important decision of this court in
s.l. kapoor v. jagmohan, [1981] 1 s.c.r. 746,766. in that
case, the suppression of the new delhi municipal committee
was challenged on the ground that it was in violation of the
principles of natural justice since, no show cause notice
was issued before the order of suppression was passed.
linked with that question was the question whether the
failure to observe the principles of natural justice matters
at all, if such observance would have made no difference,
the admitted or indisputable facts speaking for themselves.
after referring to the decisions in ridge v. baldwin, [1964]
a.c.40 at 68; john v. reeas, [1970] 1 chancery 345 at 402;
annamuthodo v. oil fields workers' trade union,[1961] 3 all
e.r. 621 (h.l.) at 625; margarita fuentes at al. v. tobert
l.shevin, 32 l.ed. 2d 556 at 574; chintepalli agency taluk
arrack sales cooperative society ltd. v. secretary (food &
agriculture) government of anadhra pradesh, [1978] 1 s.c.r.
563 at 567,569-570, and to an interesting discussion of the
subject in jackson's natural justice (1980 edn.) the court,
speaking through one of us, chinnappa reddy, j. said:
 "in our view the principles of natural justice
know of no exclusionary rule dependent on whether
it would have madeany difference if natural
justice had been observed. the non-observance of
natural justice is itself prejudice to any man and
proof of prejudice independently of proof of
denial of natural justice is unnecessary. it will
comes from a person who has denied justice that
the person who has been denied justice is not
prejudiced."
these observations sum up the true legal position regarding
the purport and implications of the right of hearing.
93
the jurisprudence requiring hearing to be given to
those who have encroached on pavements and other public
properties evoked a sharp response from the respondents
counsel. "hearing to be given to trespassers who have
encroached on public properties? to persons who commit
crimes?" they seemed to ask in wonderment. there is no doubt
that the petitioners are using pavements and other public
properties for an unauthorised purpose. but, their intention
or object in doing so is not to "commit an offence or
intimidate, insult or annoy any person", which is the gist
of the offence of 'criminal trespass' under section 441 of
the penal code. they manage to find a habitat in places
which are mostly filthy or marshy, out of sheer
helplessness. it is not as if they have a free choice to
exercise as to whether to commit an encroachment and if so,
where. the encroachments committed by these persons are
involuntary acts in the sense that those acts are compelled
by inevitable circumstances and are not guided by choice.
trespass is a tort. but, even the law of torts requires that
though a trespasser may be evicted forcibly, the force used
must be no greater than what is reasonable and appropriate
to the occasion and, what is even more important, the
trespasser should be asked and given a reasonable
opportunity to depart before force is used to expel him.
(see ramaswamy iyer's 'law of torts' 7th ed. by justice and
mrs. s. k. desai, (page 98, para 41). besides, under the law
of torts, necessity is a plausible defence, which enables a
person to escape liability on the ground that the acts
complained of are necessary to prevent greater damage, inter
alia, to himself. "here, as elsewhere in the law of torts, a
balance has to be struck between competing sets of values
............ " (see salmond and heuston, 'law of torts',
18th ed. (chapter 21, page 463, article 185-'necessity').
the charge made by the state government in its
affidavit that slum and pavement dwellers exhibit especial
criminal tendencies is unfounded. according to dr.
p.k.muttagi, head of the unit for urban studies of the tata
institute of social sciences, bombay, the surveys carried
out in 1972, 1977,1979 and 1981 show that many families
which have chosen the bombay footpaths just for survival,
have been living there for several years and that 53 per
cent of the pavement dwellers are self-employed as hawkers
in vegetables, flowers, ice-cream, toys, balloons, buttons,
needles and so on. over 38 per cent are in the wage-employed
category as casual labourers, construction workers, domestic
servants and luggage carriers. only 1.7 per cent of the
total number is generally unemployed. dr. muttagi found
among the pavement dwellers a
94
graduate of marathwada university and muslim post of some
standing. "these people have merged with the landscape,
become part of it, like the chameleon", though their contact
with their more fortunate neighbours who live in adjoining
high-rise buildings is casual. the most important finding of
dr. muttagi is that the pavement dwellers are a peaceful
lot, "for, they stand to lose their shelter on the pavement
if they disturb the affluent or indulge in fights with their
fellow dwellers". the charge of the state government,
besides being contrary to these scientific findings, is born
of prejudice against the poor and the destitute. affluent
people living in sky-scrapers also commit crimes varying
from living on the gains of prostitution and defrauding the
public treasury to smuggling. but, they get away. the
pavement dwellers, when caught, defend themselves by asking,
"who does not commit crimes in this city ? as observed by
anand chakravarti, "the separationbetween existential
realities and the rhetoric of socialism indulged in by the
wielders of power in the government cannot be more
profound." 'some aspects of inequality in rural india : a
sociological perspective published in 'equality and
inequality, theory and practice' edited by andre beteille,
1983.
normally, we would have directed the municipal
commissioner to afford an opportunity to the petitioners to
show why the enroachments committed by them on pavements or
footpaths should not be removed. but, the opportunity which
was denied by the commissioner was granted by us in an ample
measure, both sides having mate their contentions
elaborately on acts as well as on law. having considered
those contentions, we are of the opinion that the
commissioner was justified in directing the removal of the
encroachments committed by the petitioners on pavements,
footpaths or accessory roads. as observed in s.l. kapoor,
(supra) "whereon the admitted or indisputable facts only
one conclusion is possible and under the law only one
penalty is permissible, the court may not issue its writ to
compel the observance of natural justice, not because it is
not necessary to observe natural justice but because courts
do not issue futile writs . indeed, in that case, the court
did not set aside the order of supersession in view of the
factual position stated by it. but, though we do not see any
justification for asking the commissioner to hear the
petitioners, we propose to pass an order which, we believe,
he would or should have passed, had he granted a hearing to
them and heard what we did. we are of the opinion that the
petitioners should not be evicted from the pavements,
footpaths or accessory roads until one month after the
conclusion of the current monsoon season, that is to say,
until october 31,
95
1985. in the meanwhile, as explained later, steps may be
taken to offer alternative pitches to the pavement dwellers
who were or who happened to be censused in 1976. the offer
of alternative pitches to such pavement dwellers should be
made good in the spirit in which it was made, though we do
not propose to make it a condition precedent to the removal
of the encroachments committed by them.
insofar as the kamraj nagar basti is concerned, there
are over 400 hutments therein. the affidavit of the
municipal commissioner, shri d.m.sukhthankar, shows that the
basti was constructed on an accessory road, leading to the
highway. it is also clear from that affidavit that the
hutments were never regularised and no registration numbers
were assigned to them by the road development department.
since the basti is situated on a part of the road leading to
the express highway, serious traffic hazards arise on
account of the straying of the basti children on to the
express highway, on which there is heavy vehicular traffic.
the same criterion would apply to the kamraj nagar basti as
would apply to the dwellings constructed unauthorisedly on
other roads and pavements in the city.
the affidavit of shri arvind v. gokak, administrator of
the maharashtra housing and areas development authority,
bombay, shows that the state government had taken a decision
to compile a list of slums which were required to be removed
in public interest and to allocate, after a spot inspection,
500 acres of vacant land in or near the bombay suburban
district for resettlement of hutment dwellers removed from
the slums. a census was accordingly carried out on january
4, 1976 to enumerate the slum dwellers spread over about 850
colonies all over bombay. about 67% of the hutment dwellers
produced photographs of the heads of their families, on the
basis of which the hutments were numbered and their
occupants were given identity cards. shri gokak further says
in his affidavit that the government had also decided that
the slums which were in existence for a long time and which
were improved and developed, would not normally be
demolished unless the land was required for a public
purposes. in the event that the land was so required, the
policy of the state government was to provide alternate
accommodation to the slum dwellers who were censused and
possessed identity cards. the circular of the state
government dated february 4, 1976 (no. sts/176/d-41) bears
out this position. in the enumeration of the hutment
dwellers, some persons occupying pavements also happened to
be given census cards. the government decided to allot
96
pitches to such persons at aplace near malavani. these
assurance held forth by the government must be made good. in
other words despite the finding recorded by us that the
provision contained in section 314 of the b.m.c. act is
valid, pavement dwellers to whom census cards were given in
1976 must be given alternate pitches at malavani though not
as a condition precedent to the removal of encroachments
committed by them. secondly, slum dwellers who were censused
and were given identity cards must be provided with
alternate accommodation before they are evicted. there is a
controversy between the petitioners and the state government
as to the extent of vacant land which is available for
resettlement of the inhabitants of pavements and slums.
whatever that may be, the highest priority must be accorded
by the state government to the resettlement of these
unfortunate persons by allotting to them such land as the
government finds to be conveniently available. the
maharashtra employment guarantee act, 1977, the employment
guarantee scheme, the 'new twenty point socio-economic
programme, 1982', the 'affordable law income shelter
programme in bombay metropolitan region' and the programme
of house building for the economically weaker sections' must
not remain a dead letter as such schemes and programmes
often do. not only that, but more and more such programmes
must be initiated if the theory of equal protection of laws
has to take its rightful place in the struggle for equality.
in these matters, the demand is not so much for less
governmental interference as for positive governmental
action to provide equal treatment to neglected segments of
society. the profound rhetoric of socialism must be
translated into practice for, the problems which confront
the state are problems of human destiny.
during the course of arguments, an affidavit was filed
by shri s.k.jahagirdar, under secretary in the department of
housing, government of maharashtra, setting out the various
housing schemes which are under the consideration of the
state government. the affidavit contains useful information
on various aspects relating to slum and pavement dwellers.
the census of 1976 which is referred to in that affidavit
shows that 28.18 lakhs of people were living in 6,27,404
households spread over 1680 slum pockets. the earning of 80
per cent of the slum house holds did not exceed rs.600 per
month. the state government has a proposal to undertake 'low
income scheme shelter programme' with the aid of the world
bank. under the scheme, 85,000 small plots for construction
of houses would become available, out of which 40,000 would
be in greater bombay, 25,00 in the thane-kalyan area and
20,000 in the new bombay region. the state government is
also
97
proposing to undertake 'slum upgradation programme(sup)'
under which basic civic amenities would be made available to
the slum dwellers. we trust that these schemes, grandiose as
they appear, will be pursued faithfully and the aid obtained
from the world bank utilised systematically and effectively
for achieving its purpose.
there is no short term or marginal solution to the
question of squatter colonies, nor are such colonies unique
to the cities of india. every country, during its historical
evolution, has faced the problem of squatter settlements and
most countries of the under-developed world face this
problem today.even the highly developed affluent societies
face the same problem, though with their larger resources
and smaller populations, their task is far less difficult.
the forcible eviction of squatters, even if they are
resettled in other sites, totally disrupts the economic life
of the household. it has been a common experience of the
administrators and planners that when resettlement is
forcibly done, squatters eventually sell their new plots and
return to their original sites near their place of
employment. therefore, what is of crucial importance to the
question of thinning out the squatters' colonies in
metropolitan cities is to create new opportunities for
employment in the rural sector and to spread the existing
job opportunities evenly in urban areas. apart from the
further misery and degradation which it involves, eviction
of slum and pavement dwellers is an ineffective remedy for
decongesting the cities. in a highly readable and moving
account of the problems which the poor have to face, susan
george says: ('how the other half dies the real reasons for
world hunger' (polican books).
"so long as thorough going land reform, re-
grouping and distribution of resources to the
poorest, bottom half of the population does not
take place, third world countries can go on
increasing their production until hell freezes and
hunger will remain, for the production will go to
those who already have plenty to the developed
world or to the wealthy in the third world itself.
poverty and hunger walk hand in hand ."(page 18).
we will close with a quotation from the same book which
has a massage:
98
"malnourished babies, wasted mothers, emaciated
corpses in the streets of asia have definite and
 definable reasons for existing. hunger may have
been the human race's constant companion, and 'the
poor may always be with us', but in the twentieth
century, one cannot take this fatalistic view of
the destiny of millions of fellow creatures. their
condition is not inevitable but is caused by
identifiable forces within the province of
rational, human control". (p.15)
to summarise, we hold that no person has the right to
encroach, by erecting a structure or otherwise, on
footpaths, pavements or any other place reserved or ear-
marked for a public purpose like, for example, a garden or a
playground; that the provision contained in section 314 of
the bombay municipal corporation act is not unreasonable in
the circumstances of the case; and that, the kamraj nagar
basti is situated on an accessory road leading to the
western express highway. we have referred to the assurances
given by the state government in its pleadings here which,
we repeat, must be made good. stated briefly, pavement
dwellers who were censused or who happened to be censused in
1976 should be given, though not as a condition precedent to
their removal, alternate pitches at malavanior at such
other convenient place as the government considers
reasonable but not farther away in terms of distance; slum
dwellers who were given identity cards and whose dwellings
were numbered in the 1976 census must be given alternate
sites for their resettlement; slums which have been in
existence for a long time, say for twenty years or more, and
which have been improved and developed will not be removed
unless the land on which they stand or the appurtenant land,
is required for a public purposes, in which case, alternate
sites or accommodation will be provided to them, the 'low
income scheme shelter programme' which is proposed to be
undertaken with the aid of the world bank will be pursued
earnestly; and, the slum upgradation programme (sup)' under
which basic amenities are to be given to slum dwellers will
be implemented without delay. in order to minimise the
hardship involved in any eviction, we direct that the slums,
wherever situated, will not be removed until one month after
the end of the current monsoon season, that is, until
october 31,1985 and, thereafter, only in accordance with
this judgment. if any slum is required to be removed before
that date, parties may apply to this court. pavement
dwellers, whether censused or uncensused, will not be
removed until the same date viz. october 31, 1985.
99
the writ petitions will stand disposed of accordingly.
there will be no order as to costs.
m.l.a. petitions disposed of.
100
petitioner:
municipal council, ratlam

vs.

respondent:
shri vardhichand & ors.

date of judgment29/07/1980

bench:
krishnaiyer, v.r.
bench:
krishnaiyer, v.r.
reddy, o. chinnappa (j)

citation:
1980 air 1622 1981 scr (1) 97
1980 scc (4) 162
citator info :
rf 1981 sc 344 (45)
r 1982 sc 149 (15,607,968)
rf 1986 sc 847 (12)
rf 1991 sc1902 (24)
r 1992 sc 248 (17)

act:
 code of criminal procedure 1973, s. 133 & m. p.
municipalities act 1961, s. 123-municipality not providing
sanitary facilities and construction of public conveniences
for slum dwellers-whether courts can compel municipal body
to carry out its duty to the community to provide amenities
and abate nuisance.

headnote:
the residents (respondents) of a prominent residential
locality of the municipality (petitioner) in their complaint
under s. 133 criminal procedure code to the sub-divisional
magistrate averred that the municipality had failed despite
several pleas, to meet its basic obligations, like provision
of sanitary facilities on the roads, public conveniences for
slum dwellers who were using the road for that purpose, and
prevention of the discharge from the nearby alcohol plant of
maladorous fluids into the public street, and that the
municipality was oblivious to the statutory obligation
envisaged in s. 123 m. p. municipalities act, 1961
the municipal council contested the petition on the
ground that the owners of houses had gone to that locality
on their own choice, fully aware of the insanitary
conditions andtherefore they could not complain. it also
pleaded financial difficulties in the construction of drains
and provision of amenities.
the magistrate found the facts proved, and ordered the
municipality to provide the amenities and to abate the
nuisance by constructing drain pipes with flow of water to
wash the filth and stop the stench and that failure would
entail prosecution under s. 188 i.p.c.
the order of the magistrate was found unjustified by
the sessions court, but upheld by the high court.
in the special leave petition by the municipality to
this court on the question whether a court can by
affirmative action compel a statutory body to carry out its
duty to the community by constructing sanitation facilities
at great cost and on a time-bound basis.
^
held : 1. wherever there is a public nuisance, the
presence of s. 133 criminal procedure code must be felt and
any contrary opinion is contrary to the law. [112d]
2. the public power of the magistrate under the code is
a public duty to the members of the public who are victims
of the nuisance and so he shall exercise, it when the
jurisdictional facts are present. [107g]
98
3. the magistrate's responsibility under s. 133 cr.p.c.
is to order removal of such nuisance within a time to be
fixed in the order. this is a public duty implicit in the
public power to be exercised on behalf of the public and
pursuant to a public proceeding. failure to comply with the
direction will be visited with a punishment contemplated by
s. 188 i.p.c. [109c-d]
4. the municipal commissioner or other executive
authority bound by the order under s. 133 criminal procedure
code shall obey the direction because disobedience, if
causes obstruction or annoyance or injury to any persons
lawfully pursuing their employment, shall be punished with
simple imprisonment or fine as prescribed in the section.
the offence is aggravated if the disobedience tends to cause
danger to human health or safety. [109e]
5. public nuisance, because of pollutants being
discharged by big factories to the detriment of the poorer
sections, is a challenge to the social justice component of
the rule of law. [110c]
6. the imperative tone of s. 133 criminal procedure
code read with the punitive temper of s. 188 i.p.c. make the
prohibitory act a mandatory duty. [109e]
7. the criminal procedure code operates against
statutory bodies and others regardless of the cash in their
coffers, even as human rights under partiii of the
constitution have to be respected by the state regardless of
budgetary provision. [108h]
8. section 123 m. p. municipalities act 1961 has no
saving clause when the municipal council is penniless.
[108h]
9. although the cr.p.c. and i.p.c. are of ancient
vintage the new social justice orientation imparted to them
by the constitution of india makes them a remedial weapon of
versatile use. social justice is due to the people and,
therefore, the people must be able to trigger off the
jurisdiction vested for their benefit in any public
functionary like a magistrate under s. 133 criminal
procedure code. in the exercise of such power, the judiciary
must be informed by the broader principle of access to
justice necessitated by the conditions of developing
countries and obligated by art. 38 of the constitution.
[109f-g]
10. a responsible municipal council constituted for the
precise purpose of preserving public health and providing
better finances cannot run away from its principal duty by
pleading financial inability. decency and dignity are non-
negotiable facets of human rights and are a first charge on
local self-governing bodies. similarly, providing drainage
systems not pompous and attractive, but in working condition
and sufficient to meet the needs of the people-cannot be
evaded if the municipality is to justify its existence.
[110e]
11. the court, armed with the provisions of the two
codes and justified by the obligation under s. 123 of the
act, must adventure into positive directions as it has done
in the present case. section 133 criminal procedure code
authorises the prescription of a time-limit for carrying out
the order. the same provision spells out the power to give
specific directives. [111a-b]
govind singh v. shanti sarup, [1979] 2 scc 267, 279
referred to.
12. the state will realise that art. 47 makes it a
paramount principle of governance that steps are taken for
the improvement of public health as amongstits primary
duties. the municipality also will slim its budget on
99
low priority items and elitist projects to use the savings
on sanitation and public health. [114c]
13. where directive principles have found statutory
expression in do's and don'ts the court will not sit idly by
and allow municipal government to become a statutory
mockery. the law will relentlessly be enforced and the plea
of poor finance will be poor alibi when people in misery cry
for justice. the dynamics of the judicial process have a new
`enforcement' dimension not merely through some of the
provisions of the criminal procedure code (as here) but also
through activated tort consciousness. the officers in charge
and even the elected representatives will have to face the
penalty of the law if what the constitution and follow up
legislation direct them to do are defied or denied
wrongfully. the wages of violation is punishment, corporate
and personal. [114g-115a]
[the court approved a scheme of construction work to be
undertaken by the municipality for the elimination of
the insanitary conditions and directed that the work be
commenced within two months and that the magistrate
inspect the progress of the work every three months and
see that it is implemented. [113 d-114 b]

judgment:
criminal appellate jurisdiction: special leave petition
(crl.) no. 2856 of 1979.
from the judgment and order dated 6-8-1979 of the
madhya pradesh high court in crl. revision no. 392/76.
sobhag mal jain and s. k. jain for the petitioner.
c. s. chhazed, miss manisha gupta and m. s. gupta for
respondents 1-5.
s. k. gambhir for the state.
the order of the court was delivered by
krishna iyer, j.-`it is procedural rules', as this
appeal proves, `which infuse life into substantive rights,
which activate them to make them effective'. here, before
us, is what looks like a pedestrian quasi-criminal
litigation under s. 133 cr.p.c., where the ratlam
municipality-the appellant-challenges the sense and
soundness of the high court's affirmation of the trial
court's order directing the construction of drainage
facilities and the like, which has spiralled up to this
court. the truth is that a few profound issues of processual
jurisprudence of great strategic significance to our legal
system face us and we must zero-in on them as they involve
problems of access to justice for the people beyond the
blinkered rules of `standing' of british indian vintage. if
the centre of gravity of justice is to shift, as the
preamble to the constitution mandates, from the traditional
individualism of locus standi to the community orientation
of public interest litigation, these issues must be
considered. in that sense, the case before us between the
ratlam municipality and the citizens of
100
a ward, is a path-finder in the field of people's
involvement in the justicing process, sans which as prof.
sikes points out,(1) the system may `crumble under the
burden of its own insensitivity'. the key question we have
to answer is whether by affirmative action a court can
compel a statutory body to carry out its duty to the
community by constructing sanitation facilities at great
cost and on a time-bound basis. at issue is the coming of
age of that branch of public law bearing on community
actions and the court's power to force public bodies under
public duties to implement specific plans in response to
public grievances.
the circumstances of the case are typical and overflow
the particular municipality and the solutions to the key
questions emerging from the matrix of facts are capable of
universal application, especially in the third world
humanscape of silent subjection of groups of people to
squalor and of callous public bodies habituated to
deleterious inaction. the ratlam municipal town, like many
indian urban centres, is populous with human and sub-human
species, is punctuated with affluence and indigence in
contrasting co-existence, and keeps public sanitation a low
priority item. what with cesspools and filth menacing public
health. ward no. 12, new road, ratlam town is an area where
prosperity and poverty live as strange bedfellows. the rich
have bungalows and toilets, the poor live on pavements and
litter the street with human excreta because they use
roadsides as latrines in the absence of public facilities.
and the city fathers being too busy with other issues to
bother about the human condition, cesspools and stinks,
dirtied the place beyond endurance which made the well-to-do
citizens protest, but the crying demand for basic sanitation
and public drains fell on deaf ears. another contributory
cause to the insufferable situation was the discharge from
the alcohol plant of malodorous fluids into the public
street. in this lawless locale, mosquitoes found a stagnant
stream of stench so hospitable to breeding and flourishing,
with no municipal agent disturbing their stinging music at
human expense. the local denizens, driven by desperation, at
long last, decided to use the law and call the bluff of the
municipal body's bovine indifference to its basic
obligations under s. 123 of the m. p. municipalities act,
1961 (the act, for short). that provision casts a mandate:
123. duties of council.-(1) in addition to the
duties imposed upon it by or under this act or any
other enactment for the time being in force, it shall
be the duty of a council to
101
undertake and make reasonable and adequate provision
for the following matters within the limits of the
municipality, namely:
xx xx xx
(b) cleansing public streets, places and sewers,
and all places, not being private property, which are
open to the enjoyment of the public whether such places
are vested in the council or not; removing noxious
vegetation, and abating all public nuisances:
(c) disposing of night-soil and rubbish and
preparation of compost manure from night-soil and
rubbish.
and yet the municipality was obvious to this obligation
towards human well-being and was directly guilty of breach
of duty and public nuisance and active neglect. the sub
divisional magistrate, ratlam, was moved to take action
under s. 133 cr.p.c., to abate the nuisance by ordering the
municipality to construct drain pipes with flow of water to
wash the filth and stop the stench. the magistrate found the
facts proved, made the direction sought and scared by the
prospect of prosecution under s. 188 i.p.c., for violation
of the order under s. 133 cr.p.c., the municipality rushed
from court to court till, at last, years after, it reached
this court as the last refuge of lost causes. had the
municipal council and its executive officers spent half this
litigative zeal on cleaning up the street and constructing
the drains by rousing the people's sramdan resources and
laying out the city's limited financial resources, the
people's needs might have been largely met long ago. but
litigation with other's funds is an intoxicant, while public
service for common benefit is an inspiration; and, in a
competition between the two, the former overpowers the
latter. not where a militant people's will takes over
people's welfare institutions, energises the common human
numbers, canalises their community consciousness, forbids
the offending factories from polluting the environment,
forces the affluent to contribute wealth and the indigent
their work and thus transforms the area into a healthy
locality vibrant with popular participation and vigilance,
not neglected ghettoes noisy with squabbles among the slimy
slum-dwellers nor with electoral 'sound and fury signifying
nothing.'
the magistrate, whose activist application of s. 133
cr.p.c., for the larger purpose of making the ratlam
municipal body to do its duty and abate the nuisance by
affirmative action, has our appreciation. he has summed up
the concrete facts which may be usefully quoted in portions:
"new road, ratlam, is a very important road and so
many prosperous and educated persons are living on this
road. on
102
the southern side of this road some houses are situated and
behind these houses and attached to the college boundary,
the municipality has constructed a road and this new road
touches the government college and its boundary. just in
between the said area a dirty nala is flowing which is just
in the middle of the main road i.e. new road. in this stream
(nala) many a time dirty and filthy water of alcohol plant
having chemical and obnoxious smell, is also released for
which the people of that locality and general public have to
face most obnoxious smell. this nala also produces filth
which causes a bulk of mosquitoes breeding. on this very
southern side of the said road a few days back municipality
has also constructed a drain but it has (?) constructed it
completely butleft the construction in between and in some
of the parts the drain has not at all been constructed
because of this the dirty water of half constructed drain
and septic tank is flowing on the open land of applicants,
where due to insanitation and due to non-removing the
obstructed earth the water is accumulated in the pits and it
also creates dirt and bad smell and produces mosquitoes in
large quantities. this water also goes to nearby houses and
causes harm to them. for this very reason the applicants and
the other people of that locality are unable to live and
take rest in their respective houses. this is also injurious
to health".
there are more dimensions to the environmental pollution
which the magistrate points out:
"a large area of this locality is having slums where no
facility of lavatories is supplied by the municipality. many
such people live in these slums who relieve their lateral
dirt on the bank of drain or on the adjacent land. this way
an open latrine is created by these people. this creates
heavy dirt and mosquitoes. the drains constructed in other
part of this mohalla are also not proper it does not flow
the water properly and it creates the water obnoxious. the
malaria department of the state of m.p. also pays no
attention in this direction. the non-applicants have not
managed the drains, nallahs and naliyan properly and due to
incomplete construction the non-applicants have left no
outlet for the rainy water. owing to above reasons the water
is accumulated on the main road, it passes through living
houses, sometimes snakes and scorpions come out and this
obstruct the people to pass through this road. this also
causes financial loss to the people of this area. the road
constructed bynagarpalika is on a high level and due to
this, this year more
103
water entered the houses of this locality and it caused
this year more harm and loss to the houses also. this
way all works done by the non-applicantsi.e.
construction of drain, canal and road come within the
purview of public nuisance. the non-applicantshave
given no response to the difficulties of the
applicants, and non-applicants are careless in their
duties towards the public, for which without any reason
the applicants are facing the intolerable nuisance. in
this relation the people of this locality submitted
their returns, notices and given their personal
appearance also to the non-applicants but the non-
applicants are shirking from their responsibilities and
try to avoid their duty by showing other one
responsible for the same, whereas all the non-
applicants are responsible for the public nuisance."
litigation is traumatic and so the local people asked
first for municipal remedies failing which they moved for
magisterial remedies:
"at the last the applicants requested to remove
all the nuisance stated in their main application and
they also requested that under-mentioned works must be
done by the non-applicants and for which suitable
orders may be issued forthwith:
1. the drains constructed by municipality are
mismanaged and incomplete, they should be managed and
be completed and flow of water in the drains should be
made so that the water may pass through the drain
without obstruction.
2. the big pits and earthen drains which are
situated near the college boundary and on the corners
of the road where dirty water usually accumulates, they
should be closed and the filth shall be removed
therefrom.
3. the big 'nala' which is in between the road,
should be managed and covered in this way that it must
not create overflow in the rainy season.
4. the malaria department should be ordered to
sprinkle d.d.t. and act in such a manner and use such
means so that the mosquitoes may be eradicated
completely from the said locality."
 the proceedings show the justness of the grievances and
the indifference of the local body:
"both the parties heard. the court was satisfied
on the facts contained in their application dated 12-5-
72 and granted conditional order against non-applicants
no. 1 and 2 u/s 133 of cr. p.c. (old code). in this
order all the nuisances were described (which were
there in their main application) and the court directed
to remove
104
all the nuisances within 15 days and if the non-
applicants have any objection or dissatisfaction
against the order then they must file it on the next
date of hearing in the court."
xx xx xx
"the applicants got examined the following
witnesses in their evidence and after producing
following documents they closed their evidence."
xx xx xx
"no evidence has been produced by the non-
applicants in spite of giving them so many
opportunities. both the parties heard and i have also
inspected the site."
xx xx xx
"the non-applicant (municipal council) has sought
six times to produce evidence but all in vain. likewise
non-applicant (town improvement trust) has also
produced no evidence."
the nallah comes into picture after the
construction of road and bridge. it has shown that
nallah is property of nagarpalika according to ex.p.
10. many applications were submitted to remove the
nuisance but without result. according to sec. 32 to 43
of the town improvement trust act, it is shown, that it
has only the provisions to make plans. many atime
people tried to attract the attention of municipal
council and the town improvement trust but the non-
applicants always tried to throw the responsibility on
one another shoulder.
xx xx xx
it is submitted by non-applicant (municipality)
that the said nallah belongs to whom, it is still
disputed i.e. whether it belongs to non-applicant 1 or
2. shastri colony is within the area of town
improvement trust. the nagarpalika (non-applicant no.
1) is financially very weak. but municipal council is
not careless towards its duties.
non-applicant (town improvement trust) argued that
primary responsibility lies with the municipal council
only. there is no drainage system.
at the end of it all, the court recorded:
 ............... after considering all the facts i
come to this conclusion that the said dirty nallah is
in between the main road of ratlam city. this dirty
nallah affects the mohalla of new
105
road, shastri colony, volga talkies and it is just in
the heart of the city. this is the very important road
and is between the railway station and the main city.
in these mohallas, cultured and educated people are
living. the nallah which flows in between the new road
and shastri colony the water is not flowing rapidly and
on many places there are deep pits in which the dirty
water is accumulated. the nallah is also not straight
that is also the reason of accumulation of dirty water.
the nallah is not managed properly by the non-
applicants. it is unable to gush the rainy water and
due to this the adjoining areas always suffer from
over-flowing of the water and it causes the obstruction
to the pedestrians.
xx xx xx
it is also proved by the evidence given by the
applicants that from time to time the power alcohol
factory which is situated outside the premises of the
municipal council and it flows its dirty and filthy
water into the said nallah, due to this also the
obnoxious smell is spreading throughout the new road or
so it is the bounden duty of the municipal council and
the town improvement trust to do the needful in this
respect.
xx xx xx
the dirty water which flows from the lavatories
and urinals of the residential houses have no outlet
and due to this reason there are many pits on the
southern side of the new road and all the pits are full
of dirty and stinking water. so it is quite necessary
to construct an outlet for the dirty water in the said
locality.
in this area many a places have no drainage system
and if there is any drain it has no proper flow and
water never passes through the drain properly.that
causes the accumulation of water and by the time it
becomes dirty and stink and then it produces mosquitoes
there.
the magistrate held in the end:
thus after perusing the evidence i come to this
conclusion and after perusing the applications
submitted by the persons residing on the new road area
from time to time to draw the attention of the non-
applicants to remove the nuisance, the non-applicants
have taken no steps whatsoever to remove all these
public nuisances.
 he issued the following order which was wrongly found
unjustified by the sessions court, but rightly upheld by the
high court:
106
therefore, for the health and convenience of the
people residing in that particular area of all the
nuisance must be removed and for that the following
order is hereby passed:
(1) the town improvement trust with the help of
municipal council must prepare a permanent plan to make
the proper flow in the said nallah which is flowing in
between shastri colony and new road. both the non-
applicants must prepare the plan within six months and
they must take proper action to give it a concrete
form.
(2) according to para 13 a few places are
described which are either having the same drains and
the other area is having no drain and due to this the
water stinks there; so the municipal council and the
town improvement trust must construct the proper
drainage system and within their own premises where
there is no drain it must be constructed immediately
and all this work should be completed within six
months.
(3) the municipal council should construct drains
from the jail to the bridge behind the southern side of
the houses so that the water flowing from the septic
tanks and the other water flowing outside the
residential houses may be channellised and it may stop
stinking and it should have a proper flow so that the
water may go easily towards the main nallah. all these
drains should be constructed completely within six
months by the municipal council.
(4) the places where the pits are in existence the
same should be covered with mud so that the water may
not accumulate in those pits and it may not breed
mosquitoes. the municipal council must complete this
work within two months.
a notice under section 141 of the criminal
procedure code (old code) may be issued to the non-
applicants nos. 1 and 2 so that all the works may be
carried out within the stipulated period. case is
hereby finalised.
now that we have a hang of the case we may discuss the
merits, legal and factual. if the factual findings are good-
and wedo not re-evaluate them in the supreme court except
in exceptional cases- one wonders whether our municipal
bodies are functional irrelevances, banes rather than booms
and 'lawless' by long neglect, not leaders of the people in
local self-government. it may be a cynical obiter of
pervasive veracity that municipal bodies minus the people
and plus the bureaucrats are the bathetic vogue-no better
than when the british were here:
107
we proceed on the footing, as we indicated even when
leave to appeal was sought, that the malignant facts of
municipal callousness to public health and sanitation, held
proved by the magistrate, are true. what are the legal
pleas to absolve the municipality from the court's directive
under s. 133 cr.p.c. ? that provision reads:
s. 133(1) whenever a district magistrate or a sub-
divisional magistrate or any other executive magistrate
specially empowered in this behalf by the state
government, on receiving the report of a police officer
or other information and on taking such evidence (if
any) as he thinks fit, considers-
(a) that any unlawful obstruction or nuisance
should be removed fromany public place or
from any way, river or channel which is or
may be lawfully used by the public;
xx xx xx
such magistrate may make a conditional order requiring
the person causing such obstruction or nuisance, or
carrying on such trade or occupation, or keeping any
such goods or merchandise, or owning, possessing or
controlling such building, tent, structure, substance,
tank, well or excavation or owning or possessing such
animal or tree, within a time to be fixed in the order-
(i) to remove such obstruction or nuisance; or
xx xx xx
(iii) to prevent or stop the construction of such
building, or to alter the disposal of such
substance; or if he objects so to do, to
appear before himself or some other executive
magistrate subordinate to him at a time and
place to be fixed by the order, and show
cause, in the manner hereinafter provided.
why the order should not be made absolute.
so the guns of s. 133 go into action wherever there is
public nuisance. the public power of the magistrate under
the code is a public duty to the members of the public who
are victims of the nuisance, and so he shall exercise it
when the jurisdictional facts are present as here. "all
power is a trust-that we are accountable for its exercise-
that, from the people, and for the people, all springs, and
all must exist."(i) discretion becomes a duty when the
beneficiary brings home the circumstances for its benign
exercise.
if the order is defied or ignored, s. 188 i.p.c. comes
into penal play:
108
188. whoever, knowing that, by an order
 promulgated by a public servant lawfully empowered to
promulgate such order, he is directed to obtain from a
certain act, or to take certain order with certain
property in his possession or under his management,
disobeys such direction
and if such disobedience causes or tends to cause
danger to human life health or safety, or causes or
tends to cause a riot or affray, shall be punished with
imprisonment of either description for a term which may
extend to six months, or with fine which may extend to
one thousand rupees, or with both.
there is no difficulty in locating who has the
obligation to abate the public nuisance caused by absence of
primary sanitary facilities. section 123, which is
mandatory, (we repeat), reads:
123. duties of council :-(1) in addition to the
duties imposed upon it by or under this act or any
other enactment for the time being in force, it shall
be the duty of a council to undertake and make
reasonable and adequate provision for the following
matters within the limits of the municipality, namely:-
(a)..............
(b) cleansing public streets, places and sewers,
and all places not being private property,
which are open to the enjoyment of the public
whether such places are vested in the council
or not; removing noxious vegetation, and
abating all public nuisances;
(c) disposing of night-soil and rubbish and
preparation of compost manure from night-soil
and rubbish.
the statutory setting being thus plain, the
municipality cannot extricate itself from its
responsibility. its plea is not that the facts are wrong but
that the law is not right because the municipal funds being
insufficient it cannot carry out the duties under s. 123 of
the act. this 'alibi' made us issue notice to the state
which is now represented by counsel, shri gambhir, before
us. the plea of the municipality that notwithstanding the
public nuisance financial inability validly exonerates it
from statutory liability has no juridical basis. the
criminal procedure code operates against statutory bodies
and others regardless of the cash in their coffers, even as
human rights under part iii of the constitution have to be
respected by the state regardless of budgetary provision.
likewise, s. 123 of the act has no saving clause when the
municipal council is penniless. otherwise, a profligate
109
statutory body or pachydermic governmental agency may
legally defy duties under the law by urging in self-defence
a self-created bankruptcy or perverted expenditure budget.
that cannot be.
section 133 cr.p.c. is categoric, although reads
discretionary. judicial discretion when facts for its
exercise are present, has a mandatory import. therefore,
when the sub-divisional magistrate, ratlam, has, before him,
information and evidence, which disclose the existence of a
public nuisance and, on the materials placed, he considers
that such unlawful obstruction or nuisance should be removed
from any public placewhich may be lawfully used by the
public, he shall act. thus, his judicial power shall,
passing through the procedural barrel, fire upon the
obstruction or nuisance, triggered by the jurisdictional
facts. the magistrate's responsibility under s. 133 cr.p.c.
is to order removal of such nuisance within a time to be
fixed in the order. this is a public duty implicit in the
public power to be exercised on behalf of the public and
pursuant to a public proceeding. failure to comply with the
direction will be visited with a punishment contemplated by
s. 188 i.p.c. therefore, the municipal commissioner or other
executive authority bound by the order under s. 133 cr.p.c.
shall obey the direction because disobedience, if it causes
obstruction or annoyance or injury to any persons lawfully
pursuing their employment, shall be punished with simple
imprisonment or fine as prescribed in the section. the
offence is aggravated if the disobedience tends to cause
danger to human health or safety. the imperative tone of s.
133 cr.p.c. read with the punitive temper of s. 188 i.p.c.
make the prohibitory act a mandatory duty.
although these two codesare of ancient vintage, the
new social justice orientation imparted to them by the
constitution of india makes it a remedial weapon of
versatile use. social justice is due to the people and,
therefore, the people must be able to trigger off the
jurisdiction vested for their benefit in any public
functionary like a magistrate under s. 133 cr.p.c. in the
exercise of such power, the judiciary must be informed by
the broader principle of access to justice necessitated by
the conditions of developing countries and obligated by art.
38 of the constitution. this brings indian public law, in
its processual branch, in line with the statement of prof.
kojima :(1) "the urgent need is to focus on the ordinary
man-one might say the little man..." "access to justice" by
cappelletti and b. garth summarises the new change thus:(2)
110
"the recognition of this urgent need reflects a
fundamental change in the concept of "procedural
justice"... the new attitude to procedural justice
reflects what professor adolf homburger has called "a
radical change in the hierarchy of values served by
civil procedure"; the paramount concern is increasingly
with "social justice," i.e., with finding procedures
 which are conducive to the pursuit and protection of
the rights of ordinary people. while the implications
of this change are dramatic-for instance, insofar as
the role of the adjudicator is concerned-it is worth
emphasizing at the outset that the core values of the
more traditional procedural justice must be retained.
"access to justice" must encompass both forms of
procedural justice."
public nuisance, because of pollutants being discharged
by big factories to the detriment of the poorer sections, is
a challenge to the social justice component of the rule of
law. likewise, the grievous failure of local authorities to
provide the basic amenity of public conveniences drives the
miserable slum-dwellers to ease in the streets, on the sly
for a time, and openly thereafter, because under nature's
pressure, bashfulness becomes a luxury and dignity a
difficult art. a responsible municipal council constituted
for the precise purpose of preserving public health and
providing better finances cannot run away from its principal
duty by pleading financial inability. decency and dignity
are non-negotiable facets of human rights and are a first
charge on local self-governing bodies. similarly, providing
drainage systems- not pompous and attractive, but in working
condition and sufficient to meet the needs of the people-
cannot be evaded if the municipality is to justify its
existence. a bare study of the statutory provisions makes
this position clear.
in this view, the magistrate's approach appears to be
impeccable although in places he seems to have been
influenced by the fact that "cultured and educated people"
live in this area and "new road, ratlam" is a very important
road and so many prosperous and educated persons are living
on this road. in india 'one man, one value' is the democracy
of remedies and rich or poorthe law will call to order
where people's rights are violated. what should also have
been emphasised was the neglect of the malaria department of
the state of madhya pradesh to eliminate mosquitoes,
especially with open drains, heaps of dirt, public excretion
by humans for want of lavatories and slums nearby, had
created an intolerable situation for habitation. an order to
abate the nuisance by taking affirmative action on a time-
bound basis is justified in the circumstances. the nature of
the judicial process is not purely adjudicatory nor is it
functionally that of an umpire only.
111
affirmative action to make the remedy effective is of the
essence of the right which otherwise becomes sterile.
therefore, the court, armed with the provisions of the two
codes and justified by the obligation under s. 123 of the
act, must adventure into positive directions as it has done
in the present case. section 133 cr.p.c. authorises the
prescription of a time-limit for carrying out the order. the
same provision spells out the power to give specific
directives. we see no reason to disagree with the order of
the magistrate.
the high court has taken a correct view and followed
the observations of this court in govind singh v. shanti
sarup(1) where it has been observed:
"we are of the opinion that in a matter of this
nature where what is involved is not merely the right
of a private individual but the health, safety and
convenience of the public at large, the safer course
would be to accept the view of the learned magistrate,
who saw for himself the hazard resulting from the
working of the bakery."
we agree with the high court in rejecting the plea that
the time specified in the order is unworkable. the learned
judges have rightly said.
"it is unfortunate that such contentions are
raised in 1979 when these proceedings have been pending
since 1972. if in seven year's time the municipal
council intended to remedy such a small matter there
would have been no difficulty at all. apart from it, so
far as the directions are concerned, the learned
magistrate, it appears, was reasonable. so far as
direction no. 1 is concerned, the learned magistrate
only expected the municipal council and the town
improvement trust to evolve a plan and to start
planning about it within six months: the learned
magistrate has rightly not fixed the time limit within
which that plan will be completed. nothing more
reasonable could be said about direction no. 1."
a strange plea was put forward by the municipal council
before the high court which was justly repelled, viz., that
the owners of houses had gone to that locality on their own
choice with eyes open and, therefore, could not complain if
human excreta was flowing, dirt was stinking, mosquitoes
were multiplying and health was held hostage. a public body
constituted for the principal statutory duty of ensuring
sanitation and health cannot outrage the court by such an
ugly plea.
112
luckily, no such contention was advanced before us. the
request for further time for implementation of the
magistrate's order was turned down by the high court since
no specific time-limit was accepted by the municipality for
fulfillment of the directions. a doleful statement about the
financial difficulties of the municipality and the assurance
that construction of drains would betaken up as soon as
possible had no meaning. the high court observed:
"such assurances, it appears, are of no avail as
unfortunately these proceedings for petty little things
 like clearing of dirty water, closing the pits and
repairing of drains have taken more than seven years
and if these seven years are not sufficient to do the
needful, one could understand that by grantingsome
more time it could not be done."
the high court was also right in rejecting the additional
sessions judge's recommendation to quash the magistrate's
order on the impression that s. 133 cr.p.c. did not provide
for enforcement of civic rights. wherever there is a public
nuisance, the presence of s. 133 cr.p.c. must be felt and
any contrary opinion is contrary to the law. in short, we
have no hesitation in upholding the high court's view of the
law and affirmation of the magistrate's order.
before us the major endeavour of the municipal council
was to persuade us to be pragmatic and not to force
impracticable orders on it since it had no wherewithal to
execute the order. of course, we agree that law is realistic
and not idealistic and what cannot be performed under given
circumstances cannot be prescribed as a norm to be carried
out. from that angle it may well be that while upholding the
order of the magistrate, we may be inclined to tailor the
direction to make it workable. but first things first and we
cannot consent to a value judgment where people's health is
a low priority. nevertheless, we are willing to revise the
order into a workable formula the implementation of which
would be watch-dogged by the court.
three proposals have been put forward before us in
regard to the estimated cost of the scheme as directed by
the magistrate. the magistrate had not adverted to the
actual cost of the scheme nor the reasonable time that would
be taken to execute it. as stated earlier it is necessary to
ascertain how far the scheme is feasible and how heavy the
cost is likely to be. the court must go further to frame a
scheme and then fix time-limits and even oversee the actual
execution of the scheme in compliance with the court's
order.
three schemes placed before us, together with tentative
estimates of the costs, have been looked into by us. judges
are laymen and cannot put on expert airs. that was why we
allowed the municipality
113
and the respondents to produce before us schemes prepared by
expert engineers so that we may modify the directions issued
by the magistrate suitably. scheme 'a' is stated to cost an
estimated amount of rs. 1.016 crores. the state government
has revised this proposal and brought down the cost. in our
view, what is important is to see that the worst aspects of
the insanitary conditions are eliminated, not that a showy
scheme beyond the means of the municipality must be
undertaken and half done. from that angle we approve scheme
'c' which costs only around rs. 6 lakhs. we fix a time limit
of one year for completing execution of the work according
to that scheme. we further direct that the work shall be
begun within two months from to-day and the magistrate shall
inspect the progress of the work every three months broadly
to be satisfied that the order is being implemented bona
fide. breaches will be visited with the penalty of s. 188
i.p.c.
we make the further supplementary directions which we
specifically enjoin upon the municipal authority and the
state government to carry out.
1. we direct the ratlam municipal council (r1) to
take immediate action, within its statutory
powers, to stop the effluents from the alcohol
plant flowing into the street. the state
government also shall take action to stop the
pollution. the sub divisional magistrate will also
use his power under s. 133 i.p.c., to abate the
nuisance so caused. industries cannot make profit
at the expense of public health. why has the
magistrate not pursued this aspect ?
2. the municipal council shall, within six months
from to-day, construct a sufficient number of
public latrines for use by men and women
separately, provide water supply and scavenging
service morning and evening so as to ensure
sanitation. the health officer of the municipality
will furnish a report, at the end of the six-
monthly term, that the work has been completed. we
need hardly say that the local people will be
trained in using and keeping these toilets in
clean condition. conscious cooperation of the
consumers istoo important to be neglected by
representative bodies.
3. the state government will give special
instructions to the malaria eradication wing to
stop mosquito breeding in ward 12. the sub
divisional magistrate will issue directions to the
officer concerned to file a report before him to
the effect that the work has been done in
reasonable time.
4. the municipality will not merely construct the
drains but also fill up cesspools and other pits
of filth and use its sanitary
114
staff to keep the place free from accumulations of
filth. after all, what it lays out on prophylactic
sanitation is a gain on its hospital budget.
5. we have no hesitation in holding that if these
directions are not complied with the sub
divisional magistrate will prosecute the officers
responsible. indeed, this court will also consider
 action to punish for contempt in case of report by
the sub divisional magistrate of willful breach by
any officer.
we are sure that the state government will make
available by way of loans or grants sufficient financial aid
to the ratlam municipality to enable it to fulfil its
obligations under this order. the state will realise that
art. 47 makes it a paramount principle of governance that
steps are taken 'for the improvement of public health as
amongst its primary duties'. the municipality also will slim
its budget on low priority items and elitist projects to use
the savings on sanitation and public health. it is not our
intention that the ward which has woken up to its rights
alone need be afforded these elementary facilities. we
expect all the wards to be benefited without litigation. the
pressure of the judicial process, expensive and dilatory, is
neither necessary nor desirable if responsible bodies are
responsive to duties. cappelletti holds good for india when
he observes :(1)
"our judicial system has been aptly described as
follows:
admirable though it may be, (it) is at once slow
and costly. it is a finished product of great beauty,
but entails an immense sacrifice of time, money and
talent.
this "beautiful" system is frequently a luxury; it
tends to give a high quality of justice only when, for
one reason or another, parties can surmount the
substantial barriers which it erects to most people and
to many types of claims."
why drive common people to public interest action ? where
directive principles have found statutory expression in do's
and dont's the court will not sit idly by and allow
municipal government to become a statutory mockery. the law
will relentlessly be enforced and the plea of poor finance
will be poor alibi when people in misery cry for justice.
the dynamics of the judicial process has a new 'enforcement'
dimension not merely through some of the provisions of the
criminal procedure code (as here), but also through
activated tort consciousness. the officers in charge and
even the elected representatives will have
115
to face the penalty of the law if what the constitution and
follow-up legislation direct them to do are defied or denied
wrongfully. the wages of violation is punishment, corporate
and personal.
we dismiss this petition subject to the earlier
mentioned modifications.
n.v.k. petition dismissed.
116
case no.:
writ petition (civil) 4677 of 1985

petitioner:
m.c. mehta

vs.

respondent:
union of indi a & ors.

date of judgment: 01/03/2001

bench:
g.b. pattannaik, umesh c. banerjee & b.n. agrawal

judgment:

with
i.a.no. 1254 in i.a. no.22

i.a.nos.153, 455, 1181, 451 & 441 in w.p.(c ) no.4677/1985

and

ia no.1328 in ia no.1254 in ia no.129 in wp© no.4677/85

re: m/s. swatnatra bharat mills & dcm silk mills

ia no.1329 in ia no.1254 in ia no.129 in wp© no.4677/85

re: birla textiles

judgment

banerjee, j.
l...i...t.......t.......t.......t.......t.......t.......t..j

on 10th may, 1996, this court on a petition filed as a

public interest litigation directed surrender of plots upon
relocation of h categories industries more than four
years have passed since the date of the order but
regrettably the purpose of the order, to wit, to provide
some open space and green verge for the benefit of the
people of the capital city, stands unfulfilled and thus
resultantly deprivation of lung space in the city. laws
delay in this sub- continent is not unknown in the
adversarial litigation, but the situation should not and
ought not to be similar in a public interest litigation more
so when the same concerns environmental degradation: a
rather sad state of affairs. it is on this perspective,
however, that the present interlocutory application taken
out by the dda for direction on six key questions as
mentioned in the petition shall have to be considered.

incidentally, some entrepreneursalso moved certain

other interlocutory applications, we do deem it fit however
to record that the entrepreneurs application or any other
matter or petition pending shall await the judgment and
order in dda's application. before, however, proceeding
with the matter further, a brief backgrounder seems to be
rather indispensable having regard to the concept of
sustainable development for the capital city.needless to
say while the brundtland report called out for adaptation
globally of a strategy of sustainable development defining
it as development that meets the need of the present without
compromising the ability of future generations to meet their
own needs, the initial linkage between the natural and man
made environment and the critical relevance of both
environment and development is generally attributed to the
stockholm declaration of 1972 which stands restated and
reaffirmed by the un general assembly in december, 1986
specifying therein sustained and rapid development for
developing nations.
 prof. nico schrijver of the institute of social studies
at hague, in his paper on legal aspect of sustainable
development and protection of environment has high-lighted
this right to development or sustainable development and
indicated that the same includes a healthy environment.

the controversy as regards development or environment

vis- à-vis the society however persists and it is in this
context a judgment of the calcutta high court, of which one
of us (banerjee, j.) was a party, in regard to calcuttas
wetlands in the eastern fringe of the city of calcutta (see
air 1993 cal 215) may be noted: relevant extracts whereof
are noted hereinbelow:- while it is true that in a
developing country there shall have to be developments, but
that development shall have to be in closest possible
harmony with the environment, as otherwise there would be
development but no environment, which would result in total
devastation, though however, may not be felt in presenti but
at some future point of time, but then, it would be too late
in the day, however, to control and improve the environment.
nature will not tolerate us after a certain degree of its
destruction and it will, in any event, have its toll on the
lives of the people. can the present-day society afford to
have such a state and allow the nature to have its toll in
future the answer shall have to be in the negative. the
present-day society has a responsibility towards the
posterity for their proper growth and development so as to
allow the posterity to breathe normally and live in a
cleaner environment and have a consequent fuller
development. time has now come therefore to check and
control the degradation of the environment and since the law
courts also have a duty towards the society for its proper
growth and further development, it is a plain exercise of
the judicial power to see that there is no such degradation
of the society and there ought not to be any hesitation in
regard thereto..

the calcutta wetland judgment was pronounced on the

apprehended danger of a severe bio-diversity crisis but the
situation in the capital city of delhi is rather pathetic:
non- availability of even the lung space has resulted in a
very high degree of pollution as a matter of fact, this
court (vide: 1996 (4) scc 351) while dealing with the issue
at the instance of mr. mehta, the lawyer and
social-activist had the following to state:

7. delhi is one of the most polluted cities in the

world. the quality of ambient air is so hazardous that lung
and respiratory diseases are on the increase. the city has
become a vast and unmanageable conglomeration of commercial,
industrial, unauthorised colonies, resettlement colonies and
unplanned housing . there is total lack of open spaces and
green areas. once a beautiful city delhi now presents a
chaotic picture. the most vital community need as at
present is the conservation of the environment and reversal
of the environmental degradation. there are virtually no
lung spaces in the city. the master plan indicates the
approximately 34 per cent of recreational areas have been
lost to other uses. we are aware that the housing, the
sports activity and the recreational areas are also part of
the community need but the most important community need
which is wholly deficient and needed urgently is to provide
for the lung spaces in the city of delhi in the shape of
green belts and open spaces. we are therefore, of the view
that totality of the land which is surrendered and dedicated
to the community by the owners/occupiers of the
relocated/shifted industries should be used for the
development of green belts and open spaces.

the court in discharge of its social duty and obligation

as the guardian angel of the society further directed in the@@
jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj
same decision as below:@@
jjjjjjjjjjjjj

9. we, therefore, order and direct that the land which

would become available on account of shifting/relocation of
hazardous/noxious/heavy and large industries from the city
of delhi shall be used in the following manner:-

be sl. extent percentage to be percentage to by the n@@

iiiiiiiiiiiiiiiiiiiiiiiiiiiiii
surrendered and developed dedicated to the owner for his own@@
iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii
benefit in accordance dda for development of with the user@@
iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii
perm itted master plan green belts and under the other@@
iiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii
spaces@@
iiiiii

1 2 3 4

1. up to 2000 sq. mts. -

100% to be developed
(including the first by the
owner in 2000 sq.mts. of the@@
jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj
accordance with the
larger plot) zoning
 regulations of

the master plan @@

iiiiiiiiiiiiiiii

2. 0.2 ha to 5 ha 57 43

3. 5 ha to 10 ha 65 35

4. over 10 ha 68 32

the earlier paragraphs have been introduced in this

judgment as a backgrounder and to emphasize the sensitivity
of the issue since environmental degradation will have its
toll and there cannot be any doubt or dispute therein,
though may not be felt in presenti.

the directions as above in terms of the order dated 10th

may, 1996 has however, led to some confusion at the time of@@
jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj
execution of this courts order before the district judge,@@
jjjjjjjjj
delhi since none of the industrial units which were closed
down by the order of this court, took any step whatsoever
for surrendering the land on the pretended pretext of the
order of this court dated 4.12.1996.

significantly, however, the order dated 4th december,

1996 of this court came to be passed in an interlocutory
application for directions filed by the central government
wherein this court was pleased to observe in paragraph 3 of
the order as below (vide 1997 (11) scc 327):

3. we see considerable force in the contention of the

learned additional solicitor general on the second point
also. the existing hazardous industries having been closed,
what remains is the plot, superstructure and the workmen.
the occupants of the plots and the owners of the industries
which have been closed down shall have to undertake fresh
procedure for setting up of a new industry. needless to say
that no industry can be set up which is not permitted under
the master plan. the procedure required for setting up of a
new industry shall have to be followed in every case. we
make it clear that government permission and the consent
from the pollution control board/committee, if required
under law, shall have to be obtained . even fresh electric
connection and water connection shall have to be applied for
and obtained in the changed circumstances. we have no doubt
when approached for necessary
permission/licence/water/electric connections the
authorities shall expedite in dealing with the
applications.

the order of 4th december, 1996 though mainly pertain

however to the compensation aspect to the workers of those
industries which are not re-locating and which have been
closed down but some variations were ordered having regard
to the setting up of industries in accordance with master
plan of delhi. the order however was clear enough to
indicate the intent of the order. in this interlocutory
application, however, delhi development authority said to
have been confronted with various queries raised by the
industries and upon consideration thereof prayed for
issuance of appropriate directions in regard to the issues
me ntioned hereinbelow:

i) land surrendered by the industries as per order dated

10.5.1996 has to be on the total plot area in possession.@@
jjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjjj

ii) land offered for surrender should be directly

approachable from the road, vacant and free from all
encumbrances.

iii) from the land surrender cases in respect of plots

leased by delhi development authority, it is seen that out
of 14 industrial units requiring to surrender the land, 7
have a plot area ranging between 8 sq.m to 100 sq.m.
honble supreme court is requested to give directions for
minimum plot area to be surrendered by an industrial unit.

iv) certain units have restarted their industries

removing/modifying the objectionable use process and
obtained clearances from various departments. are such
industries also liable to surrender land to delhi
development authority as per orders dated 10.5.1996,
8.7.1996 and 4.12.1996?

v) there are certain industries which were closed prior

to the orders of honble supreme court dated 10.5.1996 but
their names appear in the list of h category industries to
be closed as mentioned in the various orders of honble
supreme court. are such industries liable to surrender
land? there are other industrial units which closed
pursuant to the honble supreme courts orders dated
10.5.1996 and restarted the activities as per orders dated
4.12.1996 of honble supreme court. suitable directions may
be given whether land surrender from such industries has to
be effected.
 vi) there are certain units which were running in rented
premises from within plot located in an approved industrial
area/non conforming area and whose name is got included in
the list of 1328 industries released by honble supreme
court from time to time. after the orders of honble
supreme court dated 10.5.1996, the tenant has closed down
the industry and has handed over the rented premises to the
original owner. in such cases is the original owner
required to surrender land if the total plot area is more
than 2000 sq.m.?

adverting to the records at this juncture, be it noted

that after the judgment of this court on 10th may, 1996 as
above, three interlocutory applications, having more or less
similar prayers were dismissed: delhi development authority
also filed the ia no.139 for clarification of order dated
10.5.1996, 8.7.1996 and 4.12.1996 with a prayer that the
units required to surrender land are now closed down as
being a hazardous large scale industry and do not wish to
relocate but to start units which are permitted in the
master plan and in compliance with the pollution control
norms. this court however dismissed the interlocutory
application on 1st october, 1997.

significantly, the interlocutory application no.139 was

filed on behalf of delhi development authority and the
prayer therein not only bears a similarity with the prayer
in this application but more or less the same has been
couched in the exactly similar language and for convenience
sake the same is set out hereinbelow:-

(a) whether the order dated 10.5.1996 passed by the

honble court in so far as it require the units to surrender
land would apply to such units which after having closed the
hazardous large scale industries do not wish to relocate but
to start units which are permitted under the master plan and
which also comply with pollution control rules.

it is on this prayer this court passed an order of

dismissal though however without recording any reason.

mr. ranjit kumar, the learned amicus curiae appearing

in the matter contended that by reason of rejection of such
a prayer, resulting in the dismissal of the application,
question of further consideration of the issue as is
proposed in question no.iv hereinbefore would not arise.
undoubtedly, there is some substance in such a contention
but the factum of non-availability of reasons in the order
has rendered the situation slightly more flexible so as to
afford a further opportunity to this court having regard to
the concept of justice to consider in some detail the order
dated 4th december, 1996 in i.a. no.36 accepting the
contention of the learned additional solicitor general. the
clarificatory order of 4th december, 1996 did in fact grant
a liberty which would be dealt with in detail while
answering the issues raised in the application.

another redeeming feature which ought also to be noticed

pertains to the desire of the delhi development authority to
move the court once again after having failed in such an
attempt earlier. we are at a loss to find a further attempt
on the part of the delhi development authority. the reasons
obviously there would be some: but apparently nothing was
forthcoming.

subsequently, swatantra bharat mill and dcm silk mills

also moved i.a.no.425 with a prayer to direct dda to acquire
the land required to be surrendered under the dda act or the
land acquisition act and to restrain dda for trying to
expropriate the land of the petitioner : this prayer also
was turned down by this court and hence the application was
dismissed as withdrawn. be it noted that the learned amicus
curie with his usual eloquence contended that review
applications against the order passed on 10th may, 1996
numbered 36 in the year 1996, 55 in the year 1997, 3 in the
year 1999 and 2 petitions in the year 2000, as the records
depict, were all dismissed and on the wake of the same, mr.
ranjit kumar addressed us in detail that the present
petition said to be for clarification cannot but be
attributed to be a further attempt to review of the order
dated 10.5.1996 which, in fact, does not call for any review
nor does it call for any further order substituting the
earlier order dated 10th may, 1996.

mr. rawal, the learned additional solicitor general

however, contended that while submission of mr. ranjit
kumar may have some substance pertaining to some of issues
as raised herein but that cannot said to be applicable in
regard to all the issues. mr. additional solicitor general
made it quite categorical that the application as filed by
dda is not for circumvention of compliance of the order of
this court but only to act in terms therewith. the instant
petition, mr. rawal contended has been initiated as a
necessity and dda had to move this court for certain
clarification since there have been large scale unscrupulous
withholding of delivery of possession. the necessity also
said to be by reason of proposed transfer to land-locked
areas which cannot possibly be utilised even as a lung-space
by reason of non- availability of an entry thereto. it has
been contended further that since a large number of proposed
surrender, if not in its entirety, are with encumbrances,
question of obtaining possession thereof upon clearance of
the encumbrances by the dda would not arise since that would
foist an additional financial burden or liability beyond the
capacity of the dda to meet.

mr. rawal contended that transfer also should be

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

mr. venugopal and mr. shanti bhushan, learned senior

counsels appearing for the entrepreneurs however, complained
of violation of fundamental rights under article 14. mr.
shanti bhushan contended that factum of surrender would not
arise since the industries which he represents are prepared
to restart and relocate the industries within the ambits of
the master plan and zonal development plans and this court
ought in the fitness of things grant necessary clarification
in regard thereto. in the similar vein mr. venugopal also
submitted that light and service industries and household
industrial units stands permitted in terms of the master
plan for delhi and the zonal development plan does not
contain any bar for their continuance in the event the same
falls within the ambit of the master plan. mr. venugopal
contended that though hazardous and noxious industrial units
are not permitted in delhi and existing heavy and large
scale industrial units both in terms of this courts order
and in terms of the master plan are required to be relocated
and shifted but the land which would become available on
account of such shifting ought to be used for making up the
deficiency as per the needs of the community based on norms
given in the master plan. mr. venugopal contended that as
a matter of fact in the event any land or part of the land
so vacated is not needed for the deficiency of the community
service the master plan for delhi itself records that the
same would be used as per prescribed land use. strong
emphasis has been laid on master plan for delhi perspective,
2001 in particular the chapter on work centres industry.
relevant extracts of which are set out herein below for
ready reference:-

heavy and large industries

refer annexure iii h(b)

a.
b..

(c) the land which would become available on account of

shifting as administered in (b) above, would be used for
making up the deficiency, as per the needs of the community;
based on norms given in the master plan; if any land or
part of land so vacated is not needed for the deficiency of
the community services, it will be used as per prescribed
land use; however the land shall be used for light and
service industries, even if the land use according to the
master plan/zonal development plan is extensive industry
(emphasis supplied).

(d) modernisation of heavy and large scale industrial

units shall be permitted subject to the following
conditions:

(i) it will reduce pollution and traffic congestion.

(ii) whenever the unit is asked to shift according to

the policies of the plan, no compensation shall be paid for
assets attained because of modernisation.

much emphasis has been laid on the word however (as

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

mr. gopal subramaniam, learned senior counsel appearing

for the entrepreneurs also contended in the same vein that
as a matter of fact, the master plan and the zonal
development plans having statutory recognition in terms of
the delhi development act, 1957, paragraphs © and (d) as
noticed above under the title work centres industry ought to
be given its full play and the order of this court, thus
should be modified to incorporate the same. incidentally,
it has been contended rather strongly that the master plan
being the golden thread in the orders passed by this court
from time to time, and since there is available under the
master plan some relief the same ought to be made available
to the entrepreneurs. in this context paragraph 11 of the
judgment dated 10th may, 1996 (supra) may be noticed and
which reads as below:-

the dda has suggested that it may be necessary to amend

the master plan for regularising the land use as directed by
us. we do not agree with the suggestion. the totality of
the land made available as a result of the
relocation/shifting of the industries is to be used for the
community needs. the land surrendered by the owner has to
be used for the development of green belt and open spaces.
the land left with the owner is to be developed in
accordance with the user permitted under the master plan.
in either way the development is to meet the community needs
which is in conformity with the provisions of the master
plan.

we would also deem it fit to quote paragraph 12 as below

for consideration of this aspect of the matter: we are,
therefore, of the view that it is not necessary to amend the
master plan.

while it is true that this court has directed user of

land left with the owner to be developed in accordance with
the user permitted under the master plan but the whole aim,
object and spirit of the order was to meet the community
need and it is in this context also that mr. gopal
subramaniam drew our attention to the appendix to the zonal
development plan pertaining to area g. we are however
unable to accede to such a submission since time has not
come as yet in any event to assess the situation in its
entirety. the zonal development plans produced before the
court has not been finalised as yet since it is presently in
the draft stage and as such no reliance can be placed by
this court on the data and the materials available thereon.
a proposal cannot be said to be a final declaration of the
community need. we are thus unable to record our
concurrence therewith for the reasons noticed above. the
order of this court dated 4th december, 1996 in the matter
in issue ( 1997 (11) scc 327) was passed in an interlocutory
application for directions filed by the union of india
wherein in paragraphs 2 and 3 this court observed as below:

2. so far as the first contention is concerned,

learned additional solicitor general has taken us through
the order of this court in m.c. mehta v. union of india
(1996 (4) scc 351) regarding land-use along with the order
dated 8.7.1996 (m.c. mehta v. union of india (1996) 4 scc
750) regarding relocation of 168 industries. the intention
of this court is clear that the order regarding land re-use
was both for relocating industries as well as those which
decide to close down and not to relocate. (emphasis
supplied) the learned counsel for the industries have not
disputed this interpretation. we, therefore, accept the
contention of learned additional solicitor general. nothing
more need be said on this point.

3. we see considerable force in the contention of the

learned additional solicitor general on the second point
also. the existing hazardous industries having been closed,
what remains is the plot, superstructure and the workmen.
the occupants of the plots and the owners of the industries
which have been closed down shall have to undertake fresh
procedure for setting up of a new industry. needless to say
that no industry can be set up which is not permitted under
the master plan. the procedure required for setting up of a
new industry shall have to be followed in every case. we
make it clear that government permission and the consent
from the pollution control board/committee, if required
under law, shall have to be obtained. even fresh electric
connection and water connection shall have to be applied for
and obtained in the changed circumstances. we have no doubt
when approached for necessary permission/licence/
water/electric connections the authorities shall expedite in
dealing with the applications.

the order as above thus unmistakably depicts the

intention of this court to rely on its order dated 10th may,
1996 though with certain variations as noticed herein before
in this judgment. setting up of industries was expressly
authorised, upon compliance with all regulatory
requirements, unfortunately however though certain
advantages has been made available, but not one of the
learned advocates could respond in the affirmative even on a
specific enquiry from the court.

the issues are long pending- the issues are urgent since
the entire society is impaired no exception can be taken
to the legal battles involved in an adversarial litigation
this is not one such instance: it is a true public interest
litigation for the protection of the society and to avoid a
deliberate peril arising out of entrepreneurial failure and
total apathy and non-concern for social good and benefit.
the delhi development act of 1957 envisaged preparation of
master plan for delhi with a definite statutory direction to
define various zones into which delhi may be divided for the
purposes of development and the manner in which the land in
each zone is proposed to be used and the stages by which
such development shall be carried out. as a matter of fact
the master plan came into existence in 1962 and h category
industries ought to have shifted out of the area specified
therein by 1962 itself. then came the master plan of 1990
to combat the existing situation with a specified period of
shifting within three years i.e. there was an obligation to
the h category industries to shift and relocate in terms
of the master plan by the year 1993 and the social activist
by reason of the failure of the entrepreneurs, moved this
court in 1995 whereupon after allowing all possible
opportunities to all entrepreneurs and upon assessment of
the situation through the appointments of commissions and
obtaining various reports on these aspects, passed the order
on 10th may, 1996 which has till date not been complied with
an indeed a sorry state of affairs and a total neglect and
apathy towards the society, new and novel submissions are
advanced as in any adversarial litigation but unfortunately
as noticed above it is too late in the day to contend
otherwise apart from what the order contains as of 10th may,
1996. needless to record that as late as april last year
(28th april, 2000) this court issued a direction to the
affect that within one month all the industries which are
required to surrender land in terms of this courts order
dated 10th may, 1996 should voluntarily surrender the same
to the delhi development authority and if the same has not
been done the dda will be duty bound to file an application
for execution of this courts order before the district
judge, delhi and the district judge shall thereupon execute
this courts order and report compliance within four weeks
of the filing of the execution application. be it noted
that by the order last referred, this court further directed
that the execution application to be filed by dda not later
than 8 weeks from the date of the order the entrepreneurs
should have some regard and sanctity for the orders of this
court rather than pleading anew before the court for further
clarification [if assuming we ascribe the same to be
clarification rather than review] can this be termed to be
in consonance with the law or is it a deliberate attempt to
ridicule the courts order? we will not be very wrong if we
answerthe same that probably the second alternative is the
answer. the dda also has raised certain inquiries before
this court again after the specific direction of this court
in 28th april, 2000s order. we are at a loss as to why
after the specific order of the learned district judge
instead of relying thereon, a further application has been
filed before this court in july, 2000. dda is expected to
act in terms of the order expeditiously rather than with the
delayed whip in its hands. in any event we answer the
inquiries raised in the manner following:-

re (i).. so far as the first issue is concerned, we

make it clear that the order dated 7.12.1999, in the case of
vegetable oil was in the peculiar facts of that case and is
not of universal application, nor does it in any way dilute
the mandate of the order of this court dated 10.5.1996
directing surrender of entire land subject to the extent of
availability to the owner as per order dated 10.5.1996
reported in 1996 (4) supreme court cases 351.

re (ii). so far as the second issue is concerned,

if the owner has the land which is approachable from the
road, then he must surrender with the approach, so that the
surrendered land can be utilised for the community. if,
however, he is himself not the owner of the approach road,
then question of his providing an approach road does not
arise and as such surrender shall take effect on as is
where is basis. on the question as to the land to be
surrendered should be free from encumbrance, we are of the
view, if the land is already encumbered, then a direction to
release it from encumbrance and surrender will be a great
burden. at the same time, such land will be of no use to
the society unless released from encumbrance. in the
circumstances we direct that the owner cannot utilise the
land available to him by virtue of order of this court dated
10.5.96, until he releases the surrendered landfrom
encumbrance. further if it is not made free from
encumbrance within five years, then he will not get the
benefit of the order dated 10.5.96 and after five years even
the land which the owner was otherwise entitled to retain
would stand vested with dda for the use and the need of the
society.

re(iii) so far as the third issue is concerned,

those who are required to surrender upto 100 sq. meter
after that extent of land becomes available to them under
the order of this court dated 10.5.96 they need not
surrender, since such a tiny bit of land cannot be utilised
for any need of the society.

re(iv) so far as the fourth issue is concerned, it

is to be noted that on the application of the union of
india, this court by order dated 4.12.96 in ia no.36 in writ
petition no.4677 of 1985, accepting the 2nd contention of
the learned additional solicitor general, held that the
occupants of the plots and the owners of the industries
which have been closed down shall have to undertake fresh
procedure for setting up of a new industry and such industry
can be established if permissible under the master plan.
the court also observed that when approached for necessary
permission/license/water/ electric connections, the
authorities shall expedite in dealing the applications.
(see 1997 (11) scc 327). in view of the aforesaid
clarificatory order of the court on the application of the
union government, it would not be necessary for those units
who have started new industries after obtaining clearances
from various departments, provided that the master plan
permits establishment of such industries, to surrender the
land. but those who have not started such industries with
appropriate clearance from the competent authority, they
cannot be permitted to take the stand that they intend to
start such industry nor such a plea will entitle them to
retain the land. they must be bound by the earlier
direction of the court requiring them to surrender. this
will apply to those industries which have not relocated the
hazardous industries elsewhere. but if they have relocated,
they cannot get the benefit, as has been held by the court
in the order dated 28.4.2000, reported in 2000 (4) scale
267,

re(v). so far as the fifth issue is concerned, if

the names of the industries appear in the list of h
categories in various orders of the court, and they have not
appeared or put anyobjection, then it would not be
permissible for them to put up the plea that industries were
closed down prior to order dated 10.5.96 and claim an
equitable right of not surrendering.

re(vi) so far as the sixth issue is concerned, it is

apparent that the order of the closure was on the industries
which were found injurious, irrespective of the fact whether
it was being carried on by the owner of the land or the
tenant. this being the position, the subsequent direction
of surrender also is in relation to the land on which such
industries were being carried on and were ordered to be
closed down. consequently, it is irrelevant where tenant
after closing down the industries, handed over the premises
to the owner. the owner in such case would be bound by the
order for surrender, and will have to surrender.
 interlocutory application filed by the dda thus stands
disposed of as above.

the other ias. shall be dealt with separately.

petitioner:
m.c. mehta

vs.

respondent:
kamal nath & ors.

date of judgment: 12/05/2000

bench:
s.s.ahmad, doraiswami raju

judgment:

s.saghir ahmad, j.
this case, which was finally decided by this court by
its judgment dated december 13, 1996, has been placed before
us for determination of the quantum of pollution fine. it
may be stated that the main case was disposed of with the
following directions:- 1. the public trust doctrine, as
discussed by us in this judgment is a part of the law of the
land. 2. the prior approval granted by the government of
india, ministry of environment and forest by the letter
dated november 24, 1993 and the lease-deed dated april 11,
1994 in favour of the motel are quashed. the lease granted
to the motel by the said lease-deed in respect of 27 bighas
and 12 biswas of area, is cancelled and set aside. the
himachal pradesh government shall take over the area and
restore it to its original-natural conditions. 3. the
motel shall pay compensation by way of cost for the
restitution of the environment and ecology of the area. the
pollution caused by various constructions made by the motel
in the river bed and the banks of the river beas has to be
removed and reversed. we direct neeri through its director
to inspect the area, if necessary, and give an assessment of
the cost which is likely to be incurred for reversing the
damage caused by the motel to the environment and ecology of
the area. neeri may take into consideration the report by
the board in this respect. 4. the motel through its
management shall show cause why pollution fine in addition
be not imposed on the motel. 5. the motel shall construct
a boundary wall at a distance of not more than 4 meters from
the cluster of rooms (main building of the motel) towards
the river basin. the boundary wall shall be on the area of
the motel which is covered by the lease dated september 29,
1981. the motel shall not encroach/cover/utilise any part
of the river basin. the boundary wall shall separate the
motel building from the river basin. the river bank and the
river basin shall be left open for the public use. 6. the
motel shall not discharge untreated effluents into the
river. we direct the himachal pradesh pollution control
board to inspect the pollution control devices/treatment
plants set up by the motel. if the effluent/waste
discharged by the motel is not conforming to the prescribed
standards, action in accordance with law be taken against
the motel. 7. the himachal pradesh pollution control board
shall not permit the discharge of untreated effluent into
river beas. the board shall inspect all the
hotels/institutions/factories in kullu-manali area and in
case any of them are discharging untreated effluent/waste
into the river, the board shall take action in accordance
with law. 8. the motel shall show cause on december 18,
1996 why pollution-fine anddamages be not imposed as
directed by us. neeri shall send its report by december 17,
1996. to be listed on december 18, 1996." pursuant to the
above order, notice was issued requiring the motel to
show-cause on two points; (i) why the motel be not asked to
pay compensation to reverse the degraded environment and
(ii) why pollution fine, in addition, be not imposed. mr.
g.l. sanghi, learned senior counsel, appearing for m/s span
motel private ltd., has contended that though it is open to
the court, in proceedings under article 32 of the
constitution, to grant compensation to the victims whose
fundamental rights might have been violated or who are the
victims of an arbitrary executive action or victims of
atrocious behaviour of public authorities in violation of
public duties cast upon them, it cannot impose any fine on
those who are guilty of that action. he contended that the
fine is a component of criminal jurisprudence and cannot be
utilised in civil proceedings specially under article 32 or
226 of the constitution either by this court or the high
court as imposition of fine would be contrary to the
provisions contained in article 20 and 21 of the
constitution. it is contended that fine can be imposed upon
a person only if it is provided by a statute and gives
jurisdiction to the court to inflict or impose that fine
after giving a fair trial to that person but in the absence
of any statutory provision, a person cannot be penalised and
no fine can be imposed upon him. mr. m.c. mehta, who has
been pursuing this case with the usual vigour and vehemence,
has contended that if a person disturbs the ecological
balance and tinkers with the natural conditions of rivers,
forests, air and water, which are the gifts of nature, he
would be guilty of violating not only the fundamental
rights, guaranteed under article 21 of the constitution, but
also be violating the fundamental duties to protect
environment under article 51a(g) which provides that it
shall be the duty of every citizen to protect and improve
the natural environment including forests, lakes, rivers and
wildlife and to show compassion for living creatures. the
planet earth which is inhabited by human beings and other
living creatures, including animals and birds, has been so
created as to cater to the basic needs of all the living
creatures. living creatures do not necessarily mean the
human beings, the animals, the birds, the fish, the worms,
the sepents, the hydras, but also the plants of different
varieties, the creepers, the grass and the vast forests.
they survive on fresh air, fresh water and the sacred soil.
they constitute the essential elements for survival of
"life" on this planet. the living creatures, including
human beings, lived peacefully all along. but when the
human beings started acting inhumanly, the era of distress
began which in it wake brought new problems for survival.
the industrial revolution brought an awakening among the men
inhabiting this earth that the nature, with all its
resources was not unlimited and forever renewable. the
uncontrolled industrial development generating tonnes of
industrial waste disturbed the ecological balance by
polluting the air and water which in turn, had a devastating
effect on the wildlife and, therefore, the early efforts to
protect the environment related to the protection of
wildlife. but then the two world wars, the first world war
(1914-1918) and the second world war (1939 to 1945) during
which atomic bombs were exploded resulting in the loss of
thousands of lives and burning down of vast expanses of
forests, made the man realise that if the environmental
disturbances were not controlled, his own survival on this
planet would become impossible. the united nations,
therefore, held a conference on human environment at
stockholm in 1972. in the wake of the resolutions adopted
at that conference, different countries at different stages
enacted laws to protect the deteriorating conditions of
environment. here in india, the legislature enacted three
acts, namely, the water (prevention & control of pollution)
act, 1974; the air (prevention & control of pollution) act,
1981 and the environment (protection) act, 1986. it also
enacted the water (prevention & control of pollution) cess
act, 1977. under these acts, rules have been framed to give
effect to the provisions thereof. they are : the water
(prevention and control of pollution) rules, 1975; the
water (prevention & control of pollution) cess rules, 1978;
the air (prevention and control of pollution) rules, 1982;
the air (prevention & control of pollution) (union
territories) rules, 1983; the environment (protection)
rules, 1986; the hazardous wastes (management and handling)
rules, 1989; the manufacture, storage and import of
hazardous chemicals rules, 1989, the chemical accidents
(emergency planning, preparedness and response) rules, 1996
and hosts of other rules and notifications. in addition to
these acts and rules, there are, on the statute book, other
acts dealing, in a way, with the environmental laws, for
example, the indian forest act, 1927; the forest
(conservation) act, 1980; the wildlife (protection) act,
1972 and the rules framed under these acts. various states
in india have also made their environmental laws and rules
for the protection of environment. apart from the above
statutes and the rules made thereunder, article 48a of the
constitution provides that the state shall endeavour to
protect and improve the environment and to safeguard the
forests and wildlife of the country. one of the fundamental
duties of every citizen as set out in article 51a(g) is to
protect and improve the natural environment, including
forests, lakes, rivers and wildlife and to have compassion
for living creatures. these two articles have to be
considered in the light of article 21 of the constitution
which provides that no person shall be deprived of his life
and liberty except in accordance with the procedure
established by law. any disturbance of the basic
environment elements, namely air, water and soil, which are
necessary for "life", would be hazardous to "life" within
the meaning of article 21 of the constitution. in the
matter of enforcement of rights under article 21 of the
constitution, this court, besides enforcing the provisions
of the acts referred to above, has also given effect to
fundamental rights under article 14 and 21 of the
constitution and has held that if those rights are violated
by disturbing the environment, it can award damages not only
for the restoration of the ecological balance, but also for
the victims who have suffered due to that disturbance. in
order to protect the "life", in order to protect
"environment" and in order to protect "air, water and soil"
from pollution, this court, through its various judgments
has given effect to the rights available, to the citizens
and persons alike, under article 21 of the constitution.
the judgment for removal of hazardous and obnoxious
industries from the residential areas, the directions for
closure of certain hazardous industries, the directions for
closure of slaughter-house and its relocation, the various
directions issued for the protection of the ridge area in
delhi, the directions for setting up effluent treatment
plants to the industries located in delhi, the directions to
tanneries etc., are all judgments which seek to protect
environment. in the matter of enforcement of fundamental
rights under article 21, under public law domain, the court,
in exercise of its powers under article 32 of the
constitution, has awarded damages against those who have
been responsible for disturbing the ecological balance
either by running the industries or any other activity which
has the effect of causing pollution in the environment. the
court while awarding damages also enforces the "polluter
pays principle" which is widely accepted asa means of
paying for the cost of pollution and control. to put in
other words, the wrongdoer, the polluter, is under an
obligation to make good the damage caused to the
environment. the recognition of the vice of pollution and
its impact on future resources was realised during the early
part of 1970. the united nations economic commission for
europe, during a panel discussion in 1971, concluded that
the total environmental expenditure required for improvement
of the environment was overestimated but could be reduced by
increased environmental awareness and control. in 1972, the
organisation for economic cooperation and development
adopted the "polluter pays principle" as a recommendable
method for pollution cost allocation. this principle was
also discussed during the 1972 paris summit. in 1974, the
european community recommended the application of the
principle by its member states so that the costs associated
with environmental protection against pollution may be
allocated according to uniform principles throughout the
community. in 1989, the organisation for economic
cooperation and development reaffirmed its use and extended
its application to include costs of accidental pollution.
in 1987, the principle was acknowledged as a binding
principle of law as it was incorporated in european
community law through the enactment of the single european
act, 1987. article 130r.2 of the 1992 maastricht treaty
provides that community environment policy "shall be based
on the principle that the polluter should pay." "polluter
pays principle" has also been applied by this court in
various decisions. in indian council for enviro legal
action vs. union of india, air 1996 sc 1446 = 1996 (2) scr
503 = (1996) 3 scc 212 = jt 1996 (2) sc 196, it was held
that once the activity carried on was hazardous or
inherently dangerous, the person carrying on that activity
was liable to make good the loss caused to any other person
by that activity. this principle was also followed in
vellore citizens welfare forum vs. union of india & ors.,
air 1996 sc 2715 = (1996) 5 scc 647= jt 1996 (7) sc 375
which has also been discussed in the present case in the
main judgment. it was for this reason that the motel was
directed to pay compensation by way of cost for the
restitution of the environment ecology of the area. but it
is the further direction why pollution fine, in addition, be
not imposed which is the subject matter of the present
discussion. chapter vii of the water (prevention and
control of pollution) act, 1974 contains the provisions
dealing with penalties and procedure. this chapter consists
of sections 41 to 50. sub-section (2) and (3) of section 41
provide for the punishment and imposition of fine. they are
quoted below:- "41.(2) whoever fails to comply with any
order issued under clause (e) of sub-section (1) of section
32 or any direction issued by a court under sub-section (2)
of section 33 or any direction issued under section 33a,
shall in respect of each failure and on conviction, be
punishable with imprisonment for a term which shall not be
less than one year and six months but which may extend to
six years and fine, and in case the failure continues, with
an additional fine which may extend to five thousand rupees
for every day during which such failure continues after the
conviction for the first such failure. (3) if the failure
referred to in sub-section (2) continues beyond a period of
one year after the date of conviction, the offender shall,
on conviction, be punishable with imprisonment for a term
which shall not be less than two years but which may extend
to seven years and with fine." similarly, section 42
provides that a person shall be liable to be punished with
imprisonment for a term which may extend to three months or
with fine which may extend to ten thousand rupees or with
both. sub-section (2) of section 42 also contemplates
imprisonment for a term which may extend to three months or
with fine which may extend to ten thousand rupees or with
both. section 43 contemplates penalty for contravention of
the provisions of section 24. section 44 contemplates
penalty for contravention of section 25 or section 26. they
also contemplate imposition of fine. section 45 provides
that if a person who has been convicted of any offence under
section 24 or section 25 or section 26 is again found guilty
of an offence involving a contravention of the same
provision, he shall, on the second and on every subsequent
conviction, be punishable with imprisonment for a term which
shall not be less than two years but which may extend to
seven years and with fine. section 45a provides that
whoever contravenes any of the provisions of this act or
fails to comply with any order or direction given under this
act, for which no penalty has been elsewhere provided in
this act, shall be punishable with imprisonment which may
extend to three months or with fine which may extend to ten
thousand rupees or with both and in the case of continuing
contravention or failure, he may be punished with an
additional fine. section 47 contemplatesoffences by
companies while section 48 contemplates offences by
government departments. section 15 of the environment
(protection) act, 1986 provides for penalty for
contravention of the provisions of the act and the rules,
orders and directions made thereunder. sub-section (1) of
section 15 speaks of imprisonment for a term which may
extend to five years or with fine which may extend to one
lakh rupees, or with both, and in case the failure or
contravention continues, with additional fine which may
extend to five thousand rupees for every day during which
such failure or contravention continues after the conviction
for the first such failure or contravention. section 16 of
the act contemplates offences by the companies while section
17 contemplates offences by government departments. chapter
vi of the air (prevention and control of pollution) act,
1981 containsthe provisions for penalties and procedure.
this chapter consists of sections 37 to 46. section 37
provides penalties for failure to comply with the provisions
of section 21 or section 22 or with the directions issued
under section 31a. it provides that the person shall be
punishable with imprisonment for a term which shall not be
less than one year and six months but which may extend to
six years and with fine, and in case the failure continues,
with an additional fine which may extend to five thousand
rupees for every day. sub-section (2) of this section
provides that if the failure continues beyond the period of
one year after the date of conviction, the offender shall be
punishable with imprisonment for a term which shall not be
less than two years but which may extend to seven years and
with fine. section 38 also provides penalties for certain
acts and it provides that for such acts as are referred to
in that section, a person shall be punishable with
imprisonment for a term which may extend to three months or
with fine which may extend to ten thousand rupees or with
both. section 39 contemplates penalty for contravention of
certain provisions of the act and it provides for
imprisonment for a term which may extend to three months or
with fine which may extend to ten thousand rupees or with
both, and in the case of continuing contravention, with an
additional fine which may extend to five thousand rupees for
every day during which such contravention continues after
conviction for the first such contravention. section 40
speaks of offences by companies while section 41 speaks of
offences by government departments. all the three acts,
referred to above, also contemplate the taking of the
cognizance ofthe offences by the court. thus, a person
guilty of contravention of provisions of any of the three
acts which constitutes an offence has to be prosecuted for
such offence and in case the offence is found proved then
alone he can be punished with imprisonment and fine or both.
the sine qua non for punishment of imprisonment and fine is
a fair trial in a competent court. the punishment of
imprisonment or fine can be imposed only after the person is
found guilty. in the instant case, a finding has been
recorded that m/s span motel had interfered with the natural
flow of river and thus disturbed the environment and ecology
of the area. it has been held liable to pay damages. the
quantum of damages is under the process of being determined.
the court directed a notice to be issued to show cause why
pollution fine be not imposed. in view of the above, it is
difficult for us to hold that the pollution fine can be
imposed upon m/s span motel without there being any trial
and without there being any finding that m/s span motel was
guilty of the offence under the act and are, therefore,
liable to be punished with imprisonment or with fine. this
notice has been issued without reference to any provision of
the act. the contention that the notice should be treated
to have been issued in exercise of power under article 142
of the constitution cannot be accepted as this article
cannot be pressed into aid in a situation where action under
that article would amount to contravention of the specific
provisions of the act itself. a fine is to be imposed upon
the person who is found guilty of having contravened any of
the provisions of the act. he has to be tried for the
specific offence and then on being found guilty, he may be
punished either by sentencing him to undergo imprisonment
for the period contemplated by the act or with fine or with
both. but recourse cannot be taken to article 142 to
inflict upon him this punishment. the scope of article 142
was considered in several decisions and recently in supreme
court bar association vs. union of india, air 1998 sc 1895
= (1998) 4 scc 409, by which the decision of this court in
v.c. mishra, re, (1995) 2 scc 584, was partly overruled, it
was held that the plenary power of this court under article
142 of the constitution are inherent in the court and are
"complementary" to those powers which arespecifically
conferred on the court by various statutes. this power
exists as a separate and independent basis of jurisdiction
apart from the statutes. the court further observedthat
though the powers conferred on the court by article 142 are
curative in nature, they cannot be construed as powers which
authorise the court to ignore the substantive rights of a
litigant. the court further observed that this power cannot
be used to "supplant" substantive law applicable to the case
or cause under consideration of the court. article 142,
even with the width of its amplitude, cannot be used to
build a new edifice where none existed earlier, by ignoring
express statutory provisions dealing with a subject and
thereby achieve something indirectly which cannot be
achieved directly. similarly, in m.s. ahlawat vs. union
of india & anr., air 2000 sc 168 = (2000) 1 scc 278, it was
held that under article 142 of the constitution, the supreme
court cannot altogether ignore the substantive provisions of
a statute and pass orders concerning an issue which can be
settled only through a mechanism prescribed in another
statute. thus, in addition to the damages which have to be
paid by m/s span motel, as directed in the main judgment, it
cannot be punished with fine unless the entire procedure
prescribed under the act is followed and m/s span motel are
tried for any of the offences contemplated by the act and is
found guilty. the notice issued to m/s span motel why
pollution fine be not imposed upon them is, therefore,
withdrawn. but the matter does not end here. pollution is
a civil wrong. by its very nature, it is a tort committed
against the community as a whole. a person, therefore, who
is guilty of causing pollution has to pay damages
(compensation) for restoration of the environment and
ecology. he has also to pay damages to those who have
suffered loss on account of the act of the offender. the
powers of this court under article 32 are not restricted and
it can award damages in a pil or a writ petition as has been
held in a series of decisions. in addition to damages
aforesaid, the person guilty of causing pollution can also
be held liable to pay exemplary damages so that it may act
as a deterrent for others not to cause pollution in any
manner. unfortunately, notice for exmeplary damages was not
issued to m/s span motel although it ought to have been
issued. the considerations for which "fine" can be imposed
upon a person guilty of committing an offence are different
from those on the basis of which exemplary damages can be
awarded. while withdrawing the notice for payment of
pollution fine, we direct a fresh notice be issued to m/s
span motel to show cause why in addition to damages,
exemplary damages be not awarded for having committed the
acts set out and detailed in the main judgment. this notice
shall be returnable within six weeks. this question shall
be heard at the time of quantification of damages under the
main judgment.
petitioner:
m.c. mehta versus

vs.

respondent:
union of india & others

date of judgment: 31/08/1999

bench:
s s ahmad, m jagannadha rao

judgment:

der

m.jagannadha rao,j.

this application has been filed by the gas authority

of india limited (for short `gail') for the following
reliefs:
 "(a) extend the schedule for supply of gas to
industries in zone-i of agra city, laid down vide the order
dated 3/04/98 passed by this hon'ble court in such a manner
that in respect of cupola based industries supply of gas by
gail coincides with the readiness of the consumer industries
to draw gas;

(b) direct non-cupola based industries in zone-i of

agra to draw gas latest by september, 1999;

(c) direct the secretary, pwd, government of uttar

pradesh, and secretary/director general, government of
india, ministry of surface transport to grant the permission
for underpinning the gas pipeline to the yamuna road bridge
within four weeks so that gail may be able to the schedule
for supply of gas to zone-ii and iii laid down by this
hon'ble court vide its order dated 3/04/98."

the first relief concerns zone-i and the second relief

concerns zone-ii andiii in the city of agra. we shall
first deal with zone-i and thereafter with zone ii and iii.
zone i. on 3.4.1998, this court directed the gail that it
should start supply of natural gas to the industries in
zone-i from july, 1998 so as to make available gas to the
specified industries by december, 1998. it is now stated by
gail that till december, 1998, 115 consumers out of 168
(referred to the order of this court dated 30.12.96) alone
had contacted gail for supply of natural gas. other
industries in zone-i did not contact gail. it was stated
that gail had made gas available in april, 1998 to its first
consumer in may, 1998 and that by september, 1998, gail had
completed gas pipeline network to supply gas to all the 115
consumers with whom it had entered into a contract in zone-
i. the complaint is that 79 out of these 115 consumers are
not coming forward in zone-i and are cupola based iron
foundries. the rest are non cupola. all these 115 had
given an undertaking earlier to receive natural gas from
gail. these 79 industries have been awaiting the technology
to be developed by the national metallurgical laboratory
(hereinafter called the `nml') for conversion to natural
gas. gail feels that there is likelihood of delay in the
drawal of gas by the 79 cupola based iron foundries in
zone-i by the target dated 31.12.1998. only 4 cupola based
- customers are likely to draw gas by december, 1998.

on 12.4.1999, this court issued notice to 79

industries in zone-i requiring them to show cause why they
were not availing of the gas facility to be supplied by
gail. they were also asked to state why they did not want
to draw the gas and why their industries should not be
allowed to be closed down.

on 5.4.1999, an affidavit of the agra iron founding

association has been filed stating that 78 (and not 79) were
cupola based (item 74 diwan chand suraj prakash jain is not
cupola based). the affidavit is filed on behalf of 78
cupola based industries. they admit that on 30.12.1996, in
m.c.mehta vs.union of india 1997 (2) scc 353, orders have
been passed recording the undertaking on behalf of these
industries for receiving gas as industrial fuel. they then
refer to the chronology of the steps taken by them bonafide
for conversion by approaching nml and tata-korf and their
spending huge sums of money in that connection. they state
that the problem is that fool-proof technology for these 78
industries to use natural gas is not yet ready, though now
it is in the last stages of completion, -through the efforts
of nml of tata-korf who have been working on a project. as
soon as the technology is available, the 78 industries will
switch-over to natural gas. they rely on the extension
granted to gail earlier upto december, 1998 as the cause for
delay in switching over. nml has conducted 10 trials on its
new technology but these tests have not been initially
successful. the 78 industries have entered into agreement
with gail agreeing to switch over to natural gas and have
paid rs.2 lakhs as security and given rs.6 lakhs
guarantee/indemnity. they have paid rs.14 lakhs to tata
korf in january, 1998. on 6.2.1998 nml and tata korf
visited agra and on 10.2.78, the association placed orders
with tata korf for supply of the technology. on 19.3.1998,
the association has entered into agreement with tata korf
under which rs.20 lakhs have been paid as advance out of
rs.40 lakhs. know how has been agreed to be provided by
31.7.1999 but the trial runs have failed. a chart is filed
in this behalf. in all, 32 lakhs have been paid to tata
korf. on 22.4.1999, there has been a meeting with tata-
korf. all these steps have been taken during 1997, 1998
upto 22.4.1999.

on 26.4.1999, tata korf has written to the association

that the commissioning of the cupola and stabilizing the
same will take place in 1st part of july, 1999 and they
expect "to receive the orders" from the association in july,
1999 after the cupola is successfully worked to the
satisfaction of the association. the schedule of supply of
cupola is:

(a) 10 cupolas in 4 months

(b) in each month 5-6 cupolas can be completed.

 after installation, those cupolas require fine tuning.

on 3.8.1999, tata korf has written to the association

that they had installed the new instrumentation successfully
on 15.6.1999. some more heats have to be developed. the
demonstration unit will be established fully by end of
september, 1999. same schedule of supply as stated earlier
is given.

we have heard learned senior counsel sri v.r.reddy for

gail and sri sanjay parikh for the association. we have
also heard sri krishan mahajan and sri vijay panjwani.
learned counsel sri krishan mahajan has suggested that these
78 industries have been dodging and procrastinating in
shifting to natural gas and that as per the orders of this
court dated 30.12.1996 in m.c.mehta vs. union of india 1997
(2) scc 353, direction no. 5 requires that once the gail is
ready, the industries, if they did not convert to natural
gas, they have to close down. now gail has been ready for
supply of natural gas in september 1999 and at any rate by
december, 1999 in respect of all the 115 industries who have
agreed to convert to gas. inasmuch as these 78 industries
have not become ready to convert, they are liable to be
closed down forthwith.

on the other hand, learned counsel for the association

sri sanjay parikh has contended that in view of the above
steps taken by the industries during 1997, 1998 and 1999 as
narrated earlier, the stage is now set for switch over and
that it will create great hardship if the industries are to
be directed to be closed down now. summarising the
position, it is as follows. the correspondence between the
association and nml and tata korf, it shows that by end of
september, 1999, the demonstration unit will be established.
thereafter, cupola will be supplied - 10 in 4 months and
then in each month, 5 or 6 cupolas will be supplied. now,
going by the date september, 1999, it looks as if 10 cupola
units will be supplied by january, 2000 ( i.e. in 4 months
) and by the time all these 78 cupola industries change over
to gas, ( as per the time schedule given by tata korf) it
will be another 17 months - which will take us to july,
2001. this will be the time span on the assumption that
conversion to natural gas will be started by these 78
industries after september, 1999.

now in the orders of this court dated 30.12.1996, the

directions (4) and (5) read as follows: (at p.304):

"(4). those industries which neither apply for gas

connection nor for alternative industrial plot shall stop
functioning with the aid of coke/coal in the ttz w.e.f.
april 30, 1997. supply of coke/coal to these industries
shall be stopped forthwith. the district magistrate and the
superintendent of police shall have this order complied
with.

(5) the gail shall commence supply of gas to the

industries by june 30, 1997. as soon as the gas supply to
an industry commences, the supply of coke/coal to the said
industry shall be stopped with immediate effect."

in the above background, the question is whether these

78 cupola industries are to be allowed to function on
coal/coke without receiving natural gas. so far as the
remaining non-cupola industries which are 37 (out of 115)
who have contracted to draw, there is no reason why they
have not accepted the supply of natural gas. out of these,
we are told only 8 industries were drawing natural gas. the
rest 29 have been obviously taking it easy. we can divide
the discussion into the various categories as follows: (1)
the overall total was 168 and only 115 have entered into
agreement with gail. therefore, so far as the remaining
(168-115) = 53 iron foundries are concerned, there is no
justification for them to function - unless they have
shifted out - and under clause 4 of the order dated
30.12.1996 of this court, the said 53 iron foundries are
already liable to be closed. if they have not shifted,
these 53 industries must stop forthwith as they have acted
in breach of direction no.4. (2) so far as the 29
non-cupola industriesout of 115 (excluding 8 which have
switched over to gas), there can be no difficulty in
applying clause 5 of the order of this court. if by
15.9.1999, these 29 industries do not accept gas, clause 5
of the order dated 30.12.1996 shall apply forthwith to them.

(3) so far as the 78 cupola based industries are

concerned, the question is what order is to be passed? we
have shown that even if the conversion starts from october,
1999, the time frame for all the 78 industries will be
easily 21 months - which will take us to july 2001. this
court has given enough time to these industries right from
31.12.1996. we do not mean to say that they have not taken
some steps for conversion but if the tata korf time-schedule
can give the conversion technology to all the 78 of them at
the earliest only by july 2001, the question is whether
these 78 coke/coal based industries which are continuously
using coke/coal can be allowed to pollute the air in and
around the taj trapezium and also whether they are to be
allowed such a long period upto july 2001. we cannot lose
sight of the fact that gail has completed its obligation to
be ready, even by september, 1998. no doubt, even now, as
stated by counsel, these 78 industries are prepared to stand
by the undertaking given by them to to this court to receive
natural gas. in our view, having regard to the fact that
the conversion of all these 78 cupola based industries is
likely to be not completed till july, 2001 - it will be a
matter of grave concern if the atmospheric pollution(as
noted in the neeri and dr. varadarajan reports and our
earlier orders) is allowed to continue. question is not
strictly whether the 78 industries have or have not acted
bonafide in making some efforts for conversion to natural
gas but assuming they have taken some steps, the question is
whether the danger to the environment does not require
urgent action. the data already collected shows high levels
of pollution in agra in this area affecting the environment
in the ttz area.

in the circumstances, we are of the view that there is

no other way to deal with the situation than to apply clause
(5) of the order of this court dated 30.12.1996 set out
above, strictly to these 78 cupola based industries. we are
conscious that any order to stop supply of coke/coal to the
78 coke/coal based iron foundries will result in the closing
down of these 78 industries for some time, before they are
able to switch on to natural gas. obviously, the closure
will have not be permanent one but of a temporary nature.
there will be no difficulty in permitting them to re-open as
soon as they have the cupola conversion technology installed
in their respective industries. we are, therefore,
compelled to put clause (5) of the order of this court into
full effect in respect of these 78 industries w.e.f.
15.9.1999. in the result, we direct as follows:- (1) out of
168, 53 iron foundries which have not agreed to accept gas
have to be closed forthwith, if not already closed as per
orders of this court dated 30.12.1996 unless they have
shifted. the district magistrate and superintendent of
police, agra shall take action accordingly. (2)(i) out of
115 which have opted and entered into agreements with gail,
37 are non-cupola based and among the 8 have converted to
natural gas while in respect of the remaining 29 non-cupola
industries. clause (5) of the order of this court dated
30.12.96 shall come into operation w.e.f. 15.9.1999, for
they have no excuse for not accepting the natural gas from
gail. the district magistrate and superintendent of police,
agra will take steps to close down these industries by
15.9.1999. (ii) however, as and when these 29 non-cupola
industries take steps to receive gas, they shall be allowed
to function. (3)(i) in respect of the remaining 78, which
are cupola based, in view of the reasons given above, clause
(5) of the order dated 30.12.96 of this court will come into
operation w.e.f. 15.9.1999. that will mean that in respect
of these 78 iron founding industries, the district
magistrate, agra and the superintendent of police, agra will
have to see to it that no coal/coke is supplied to them
after 15.9.1999.

(ii) out of the 78 cupola based iron foundries, as and

when any of them gets converted to natural gas and takes
steps to receive gas from gail, they will be allowed to
function. we dispose of the ia in respect of zone-i
accordingly. copy to be communicated to district magistrate
and superintendent of police, agra.

gail and sri krishan mahajan are requested to furnish

a list of the respective industries to the above officials
in a week. zone ii & zone iii

so far as zone ii and zone iii are concerned, a number

of affidavits have been filed by the gail and one by the
government of india. as the matter is to be adjourned, we
do not propose to give a detailed order. sri v.r.reddy,
learned senior counsel for gail has placed before us the
correspondence and contended that, by its affidavit, the
union of india appears to have in principle, accepted that a
pipeline can be allowed to be laid along the old yamuna
bridge but that the union of india want to put gail on
notice that, inasmuch as the old bridge may require to be
dismantled bygovernment, - gail must be prepared to go
ahead with laying down the pipeline with that possibility of
the old bridge being dismantled. sri reddy however points
out that there are reports of some technical experts that
the old bridge need not be dismantled in the near future.
he contends that, unfortunately, the government of india has
not so far applied its mind to these reports and therefore
it has to take a final decision in the matter of dismantling
of the old yamuna bridge, after considering these reports.
learned senior counsel contends that appropriate directions
be given to the union of india in this behalf. in view of
the above contention, we direct the union of india to
examine the expert reports given in connection with the
dismantling of the old bridge and take a final decision in
regard to the same and give its response to this court by
way of affidavit so that gail can take a decision as to the
laying of its pipeline for supply of natural gas to zones ii
and iii. response of union of india to be filed within four
weeks. thus, we dispose of this i.a. so far as zone i is
concerned. the i.a. now remains pending in respect of zone
ii and iii. list i.a. after four weeks.
petitioner:
vellore citizens welfare forum

vs.

respondent:
union of india & ors.

date of judgment: 28/08/1996

bench:
kuldip singh, faizan uddin, k. venkataswami

act:

headnote:

judgment:
the 28th day of august, 1996
present:
hon'ble mr. justice kuldip singh
 hon'ble mr. justice faizan uddin
hon'ble mr, justice k. venkataswami
r. mohan, v.a. bobde, kapil sibal, m.r. sharma,
v.c. mahajan, and s.s. ray, sr. advs., k.r.r. pillai,
m.c. mehta, ms. seema midha, v.g. pragasam, vijay panjwani,
s. sukumaran, sudhir walia, a.t.m. sampath,
m.s. dahiya,(sudhir walia, roy abraham, advs. for sm. baby
krishna, p. sukumar, praveen kumar, romesh c. pathak
m.a. krishnamurthy, v. krishnamurthy, mrs. anil katiyar,
ms. indra sawhney, deepak diwan, s.m, jadhev, a.v. rangam,
zafarullah khan, shahid rizvi, shakil ahmed syed, jaideep
gupta and sanjay hegde, advs. with them for the appearing
parties.
judgment
the following judgment of the court was delivered:
judgment
kuldip singh, j..
this petition - public interest - under article 32 of
the constitution of india has been filed by vellore citizens
welfare forum and is directed against the pollution which is
being caused by enormous discharge of untreated effluent by
the tanneries and other industries in the state of tamil
nadu . it is stated that the tanneries are discharging
untreated effluent into agricultural fields to, road-sides,
water ways and open lands. the untreated effluent is finally
discharged in river palar which is the main source of water
supply to the residents of the area. according to the
petitioner the entire surface and sub-soil water of river
palar has been polluted resulting in non availability
potable water to the residents of the area. it is stated
that the tanneries in the state of tamil nadu have caused
environmental degradation in the area. according to the
preliminary survey made by the tamil nadu agricultural
university research center vellore nearly 35,000 hectares of
agricultural land in the tanneries belt, has become either
partially or totally unfit for cultivation. it has been
further stated in the petition that the tanneries use about
170 types of chemicals in the chrome tanning processes. the
said chemicals include sodium chloride, lime, sodium
sulphate, chlorium sulphate, fat liquor amonia and sulphuric
acid besides dyes which are used in large quantities. nearly
35 litres of water is used for processing one kilogram of
finished leather, resulting in dangerously enormous
quantities of toxic effluents being let out in the open by
the tanning industry. these effluents have spoiled the
physico-chemical properties of the soil, and have
contaminated ground water by percolation. according to the
petitioner an independent survey conducted by peace members,
a non governmental organisation, covering 13 villages of
dindigal and peddiar chatram anchayat unions, reveals that
350 wells out of total of 467 used for drinking and
irrigation purposes have been polluted. women and children
have to walk miles to get drinking water. legal aid and
advice board of tamil nadu requested two lawyers namely,
m.r, ramanan and p.s. subramanium to visit the area and
submit a report indicating the extent of pollution caused by
the tanneries. relevant part of the report is as under :
"as per the technical report dated
28.5.1983 of the hydrological
investigations carried out in solur
village near ambur it was noticed
that 176 chemicals including acids
were contained in the tannery
effluents. if 40 litres of water
with chemicals are required for one
kilo of leather, with the
production of 200 tons of leather
per day at present and likely to be
increased multifold in the next
four to five years with the
springing up of more tanneries like
mushroom in and around ambur town,
the magnitude of the effluent water
used with chemicals and acids let
out daily can be shockingly
imagined. ..... the effluents are
let out from the tanneries in the
nearby lands, then to goodar and
palar rivers. the lands, the
rivulet and the river receive the
effluents containing toxic
chemicals and acids. the sub soil
water is polluted ultimately
affecting not only arable lands,
wells used for agriculture but also
drinking water wells. the entire
ambur town and the villages
situated nearby do not have good
drinking water. some of the
influential and rich people are
able to get drinking water from a
far off place connected by a few
pipes. during rainy days and
floods, the chemicals deposited
into the rivers and lands spread
out quickly to other lands. the
effluents thus let out, affect
cultivation, either crops do not
come up at all or if produced the
yield is reduced abnormally too
low. ........ the tanners have
come to stay. the industry is a
 foreign exchange earner. but one
moot point is whether all the cost
of the lives of lakhs of people
with increasing human population
the activities of the tanneries
should be encouraged on monetary
considerations. we find that the
tanners have absolutely no regard
for the healthy environment in and
around their tanneries. the
effluents discharged have been
stored like a pond openly in the
most of the places adjacent to
cultivable lands with easy access
for the animals and the people. the
ambur municipality, which can
exercise its powers as per the
provisions of the madras district
municipalities act (1920) more
particularly under sections 226 to
231, 249 to 253 and 338 to 342
seems to be a silent spectator
probably it does not want to
antagomise the highly influential
and stupendously rich tanners. the
powers given under section 63 of
the water prevention and control of
pollution act 1974 (6 of 1974) have
not been exercised in the case of
tanneries in ambur and the
surrounding areas."
alongwith the affidavit dated july 21, 1992 filed by
deputy secretary to government, environment and forests
department of tamil nadu, a list of villages affected by the
tanneries has been attached. the list mentions 59 villages
in the three divisions of thirupathur, vellore and ranipath.
there is acute shortage of drinking water in these 59
villages and as such alternative arrangements were being
made by the government for the supply of drinking water.
in the affidavit dated january 9, 1992 filed by member
secretary, tamil nadu pollution control board (the board),
it has been stated as under :
"it is submitted that there are 584
tanneries in north arcot ambedkar
district vide annexure 'a' and 'd'.
out of which 443 tanneries have
applied for consent of the board.
the government were concerned with
the treatment and disposal of
effluent from tanneries. the
government gave time upto 31.7.1985
 to tanneries to put up effluent
treatment plant (e.t.p.). so far 33
tanneries in north arcot ambedkar
district have put up effluent
treatment plant. the board has
stipulated standards for the
effluent to be disposed by the
tanneries."
the affidavits filed on behalf of state of tamil nadu
and the board clearly indicate that the tanneries and other
polluting industries in the state of tamil nadu are being
persuaded for the last about 10 years to control the
pollution generated by them. they were given option either
to construct common effluent treatment plants for a cluster
of industries or to set up individual pollution control
devices. the central government agreed to give substantial
subsidy for the construction of common effluent treatment
plants (cetps). it is a pity that till date most of the
tanneries operating in the state of tamil nadu have not
taken any step to control the pollution caused by the
discharge of effluent. this court on may 1, 1995 passed a
detailed order. in the said order this court noticed various
earlier orders passed by this court and finally directed as
under :
"mr. r. mohan, learned senior
counsel for the tamil nadu
pollution control board has placed
before us a consolidated statement
dividing the 553 industries into
three parts. the first part in
statement no.1 and the second part
in statement no.2 relate to those
tanneries who have set up the
effluent treatment plants either
individually or collectively to the
satisfaction of the tamil nadu
pollution control board. according
to the report placed on the record
by the board, these industries in
statements 1 and 2 have not
achieved the standard or have not
started functioning to the
satisfaction of the board. so far
as the industries in statements 1
and 2 are concerned, we give them
three months notice from today to
complete the setting up of effluent
treatment plant (either
individually or collectively)
failing which they shall be liable
to pollution fine on the basis of
their past working and also liable
to be closed. we direct the tamil
nadu pollution control board to
issue individual notices to all
these industries within two weeks
from today. the board is also
directed to issue a general notice
on three consecutive days in a
local newspaper which has
circulation in the district
concerned.
so far as the 57 tanneries listed
in statement iii (including 12
industries who have filed writ
petition, nos. of which have been
given above) are concerned, these
units have not installed and
commissioned the effluent treatment
plants despite various orders
issued by this court from time to
time. mr. r. mohan, learned senior
counsel appearing for tamil nadu
pollution control board states that
the board has issued separate
notices to these units directing
them to set up the effluent
treatment plants. keeping in view
the fact that this court has been
monitoring the matter for the last
about four years and various orders
have been issued by this court from
time to time, there is no
justification to grant any further
time to these industries. we,
therefore, direct the- 57
industries listed hereunder to be
closed with immediate effect.
...... we direct the district
collector and the senior
superintendent of police of the
district to have our orders
complied with immediately. both
these officers shall file a report
in this court within one week of
the receipt of the order. we give
opportunity to these 57 industries
to approach this ' court as and
when any steps towards the setting
up of effluent treatment plants
their plants and their
commissioning have been taken by
 these industries. if any of the
industries wish to be relocated to
some other area they may come out
with a proposal in that respect :
on july 28,1995 this court suspended the closure order
in respect or seven industries mentioned therein for a
period of eight weeks. it was further observed as under:
"mr. g . ramaswamy, learned senior
advocate appearing for some of the
tanneries in madras states that the
setting up of the effluent
treatment plants is progressing
satisfactorily. according to him
several lacs have already been
spent and in a short time it would
start operating. mr. mohan,
learned counsel for the tamil nadu
pollution control board will
inspect that project and file a
report by 3rd august, 1995".
this court on september 8, 1995 passed the following
order :
"the tamil nadu pollution control
board relates to about 299
industries stated by m.g.
ramaswamy, mr. kapil sibal and mr.
sanghi, learned senior advocates
appearing f for these industries,
that the setting up of projects is
in progress. according to the
learned counsel tamil nadu leather
development corporation (talco) is
in charge of the project. the
learned counsel state that the
project shall be completed in every
respect within 3 months from today.
the details of these industries
and the projects undertaken by
talco as per list no. i is as
under...... we are of the view that
it would be in the interest of
justice to give a little more time
to these industries to complete the
project. although the industries
have asked time for three months,
we give them time till 31st
december, 1995. we make it clear
that in case the projects are not
completed by that time, the
industries shall be liable to be to
be closed forthwith. apart from
 that, these industries shall also
be liable to pollution fine for the
past. period during which they had
been operating. we also take this
opportunity to direct talco to take
full interest in these projects and
have the projects completed within
the time granted by us.
mr. kapil sibal, learned counsel
appearing for the tanneries, stated
that council, for indian finished
leather manufacturers export
association is a body which is
collecting 5% on all exports. this
body also helps the tanneries in
various respect. we issue notice to
the association to be present in
this court and assist this court in
all the matters pertaining to the
leather tanneries in madras. mr.
sampath takes notice .
so far as list no. ii is concerned,
it relates to about 163 tanneries
(except m/s. vibgyor tanners & co.,
kailasagiri roads, mittalam-635 811
ambur (via), the pollution control
board has inspected all these
tanneries and placed its report
before us. according to the report
mosts of these tanneries have not
even started primary work at spot.
some of them have not even located
the land. the tanneries should have
themselves set, up the pollution
control devices right at time when
they started working. they have not
done so. they are not even
listening to various orders passed
by this court from time to time
during the last more than 2 years.
it is on the record that these
tanneries are polluting the area.
even the water around the area
where they are operating is not
worth drinking. we give no further
time to these tanneries. we direct
all the following tanneries which
are numbering about 162 to be
closed with immediate effect.
it may be mentioned that this court suspended the
closure orders in respect of various industries from time to
time enable the said industries to install the pollution
control devices.
this court by the order dated october 20, 1995 directed
the national environmental engineering research institute,
nagpur (neeri) to send a team of experts to examine, in
particular, the feasibility of setting up of cetps for
cluster of tanneries situated at, different places in, the
state of tamil nadu where the work of setting up of the
cetps has not started and also to inspect the existing cetps
including those where construction work was in progress .
neeri submitted its first report on december 9, 1995 and the
second report on february 12, 1996. this court examined the
two reports and passed the following order on april 9, 1996:
"pursuant to this court's order
dated december 15, 1955, neeri has
submitted final examination report
dated february 12, 1996, regarding
cetps constructed/under
construction by the tanneries in
various districts of the state of
tamil nadu. a four member team
constituted by the director, neerj
inspected the cetps from january 27
to february 12, 1996. according to
the report, at present, 30 cetps
sites have been identified for
tannery clusters in the five
districts of tamil nadu viz., north
arcot ambedkar, erode periyar,
dindigul anna, trichi and chengai
m.g.r. all the 30 cetps are
inspected by the team. according to
the report, only 7 cetps are under
operation, while 10 are under
construction and 13 are proposed.
the following 7 etps are under
operation:
1. m/s. talco ranipet tannery
effluent treatment co. ltd.
ranipet, dist. north arcot
ambedkar.
2. m/s. talco ambur tannery
effluent treatment co. ltd.,
thuthipet sector, ambur dist. north
arcot ambedkar.
3. m/s. talco vaniyambadi tanners
enviro control systems ltd.,
vaniyambattu, vaniyambadi, dt.
north arcot.
4. m/s. pallavaram tanners
industrial effluent treatment co.,
chrompet area, dist. chengai) mgr.
5. m/s. ranipet sidco finished
leather effluent treatment co. pvt.
ltd., ranipet, dist. north arcot
ambedkar.
6. m/s. talco vaniyambadi tanners
enviro control systems ltd.
udayendiram, vaniyambadi, dist.
north arcot ambedkar.
7. m/s. talco pernambut tannery
effluent treatment co. ltd.,
bakkalapalli, pernambut, dist.
north arcot ambedkar.
the cetps mentioned at sl. nos. 5,
6 & 7 were commissioned in january,
1996 and were on the date of report
passing through stabilization
period. the report indicates that
so far as the above cetps are
concerned, although there is
improvement in the performance they
are still not operating at their
optimal level and are not meeting
the standards as laid down by the
ministry of environment and forests
and the tamil nadu pollution
control board for inland surface
water discharge. the neeri has
given various recommendations to be
followed by the above mentioned
units. we direct the units to
comply with the recommendations of
neeri within two months from today.
the tamil nadu pollution control
board shall monitor the directions
and have the recommendations of the
neeri complied with. so far as the
three units which are under
stabilization, the neeri team may
inspect the same and place a final
report before this court within the
period of two months.
apart from the tanneries which are
connected with the above mentioned
7 units, there are large number of
other tanneries operating in the 5
districts mentioned above which
have not set up any satisfactory
pollution control devices. mr.
mohan learned counsel for the tamil
nadu pollution control board states
that notices were issued to all
those tanneries from time to time
directing them to set up the
necessary pollution control
devices. it is mandatory for the
tanneries to set up the pollution
control devices. despite notices it
has not been done. this court has
been monitoring these matters for
the last about 4 years. there is no
awakening or realisation to control
the pollution which is being
generated by these tanneries.
the neeri has indicated the
physico-chemical characteristics of
ground water from dug wells near
tannery clusters. according to the
report, water samples show that
well-waters around the tanneries
are unfit for drinking. the report
also shows that the that the
quality of water in paler river
down stream from the place where
effluent is discharged, is highly
polluted. we, therefore, direct
that all the tanneries in the
districts of north arcot ambedkar,
erode periyar, dindigul anna,
trichi and chengai m.g.r which are
not connected with the seven cetps
mentioned above, shall be closed
with immediate effect. none of
these tanneries shall be permitted
to operate till the time the cetps
are constructed to the satisfaction
of the tamil nadu pollution control
board. we direct the district
magistrate and the superintendent
of police of the area concerned, to
have all these tanneries closed
with immediate effect. mr. mehta
has placed on record the report of
tamil nadu pollution control board.
in statement i of the index, there
is a list of 30 industries which
have also not been connected with
any cetps. according to the report,
these industries have not, till
date set up pollution control
devices. we direct the closure of
these industries also. list is as
under. ..... the tamil nadu
pollution control] board has filed
another report dated january 18,
1996 pertaining to 51 tanneries.
there is dispute regarding the
permissible limit of the quantity
of total dissolved solids (tds).
since the neeri team is visiting
these tanneries, they may examine
the tds aspect also and advise this
court accordingly. meanwhile, we do
not propose to close any of the
tannery on the ground that it is
discharging more than 2001 tds.
the report indicates that except
the 17 units, all other units are
non-complaint units in the sense
that they are not complying with
the bod standards. excepting these
17 industries the remaining 34
tanneries listed hereunder are
directed to be closed forthwith.
..... we direct the district
magistrate and the superintendent
of the police of the area concerned
to have all these industries
mentioned above closed forthwith
the tanneries in the 5 districts of
tamil nadu referred to in this
order have been operating for a
longtime. some of the tanneries are
operating for a period of- more
than two decades. all this period
these tanneries have been,
polluting the area. needless to say
that the total environment in the
area has been polluted the area.
needless issue show cause notice to
these industries through their
learned counsel who are present in
court why they be not subjected to
heavy pollution fine. we direct the
state of tamil nadu through the
industry ministry, the tamil nadu
pollution central board and all
other authorities concerned and
also the government of india
through the ministry of environment
and forests not to permit the
setting up of further tanneries in
the state of tamil nadu.
 copy of this order be communicated
to the concerned authorities within
three days. to come up for further
consideration after the replies to
the show cause. there are large
number of tanneries in the state of
tamil nadu which have set up
individual pollution control
devices and which according to the
tamil nadu pollution control board
are operating satisfactorily. the
fact however remains that all these
tanneries are discharging the
treated efficient within the
factory precinct itself. we direct
neeri team which is visiting this
area to find out as to whether the
discharge of the effluent on the
land within the factory premises is
permissible environmentally. m/s.
nandeem tanning company, valayampet
vaniyambadi is one is one of such
industries. copy of the report
submitted by the tamil nadu
pollution control board be
forwarded to the neeri. neeri may
inspect this industry within ten
days and file a report in this
court. copy of this order be
communicated to neeri.
matter regarding distilleries in
the state of tamil nadu.
the tamil nadu pollution control
board has placed on record the
factual report regarding
distilleries mentioned in page 4 of
the index of its report dated april
5, 1996. learned counsel for the
board states that the board shall
issue necessary notices to these
industries to set up pollution
control devices to the satisfaction
of the board, failing which these
distilleries shall be closed. the
pollution control board shall place
a status report before this court."
the neeri submitted two further reports on may 1, 1996
and june 11, 1996 in respect of cetps set up by various
industries. the neeri reports indicate that the physico-
chemical 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 causedby them to
villagers in the affected area, to the soil and to the
underground water and hence, they are bound to take all
necessary measures to remove sludge and other pollutants
lying in the affected areas". the "polluter pays" principle
as interpreted by this court means that the absolute
liability for harm to the environment extends not only to
compensate the victims of pollution but also the cost of
restoring the environmental degradation. remediation of the
damaged environment is part of the process of "sustainable
development" and as such polluter is liable to pay the cost
to the individual sufferers as well as the cost of reversing
the damaged ecology.
the precautionary principle and the polluter pays
principle have been accepted as part of the law of the land.
article 21 of the constitution of india guarantees
protection of life and personal liberty. articles 47, 48a
and 51a(g) of the constitution are as under:
"47. duty of the state to raise the
level of nutrition and the standard
of living and to improve public
health. the state shall regard the
raising of the level of nutrition
and the standard of living of its
people and the improvement of
public health as among its primary
duties and in particular, the state
shall endeavour to bring about
prohibition of the consumption
except for medicinal purposes of
intoxicating drinks and of drugs
which are injurious to health.
48a. (g) protection and improvement
of environment and safeguarding of
forests and wild life. the state
shall endeavour to protect and
improve the environment and to
safeguard the forests and wild life
of the country.
51a.(g) to protect and improve the
natural environment including
forests, takes, rivers and wild
life, and to have compassion for
living creatures."
apart from the constitutional mandate to protect and
improve the environment there are plenty of post
independence legislations on the subject but more relevant
enactments for our purpose are: the water (prevention and
control of pollution act 1974 (the water act), the air
(prevention and control of pollution) act, 1981 (the air
act) and the environment protection act 1986 (the
environment act). the water act provides for the
constitution of the central pollution control board by the
central government and the constitution of one state
pollution control boards by various state governments in the
country. the boards function under the control of the
governments concerned. the water act prohibits the use or
streams and wells fordisposal of polluting matters. also
provides for restrictions on outlets and discharge of
effluents without obtaining consent from the board.
prosecution and penalties have been provided which include
sentence of imprisonment. the air act provides that the
central pollution control board and the state pollution
control boards constituted under the later act shall also
perform the powers and functions under the air act. the main
function of the boards, under the air act, is to improve the
quality of the air and to prevent. control and abate air
pollution in the country. we shall deal with the environment
act in the later part of this judgement.
in view of the above mentioned constitutional and
statutory provisions we have no hesitation in holding that
the precautionary principle and the polluter pays pcinciple
are part of the environmental law of the country.
even otherwise once these principles are accepted as
part of the customary international law there would be no
difficultly in accepting them as part of the domestic law.
it is almost accepted proposition of law that the rule of
customary international law which are not contrary to the
municipal law shall be deemed to have been incorporated in
the domestic law and shall be followed by the courts of law.
to support we may refer to justice h.r. khanna's opinion in
addl. distt. magistrate jabalpur vs shivakant shukla (air
1976 sc 1207) jolly george varghese's case (air 1980 sc 470)
and gramophone company's case (air 1984 sc 667).
the constitutional and statutory provision protect a
persons right to fresh air, clean water and pollution free
environment, but the source of the right is the inalienable
common law right of clean environment. it would be useful to
quote a paragraph from blackstone's commentaries on the laws
of england (commentaries on the laws of england of sir
willian blackstone) vol.iii, fourth edition published in
1876. chapter xiii, "of nuisance" depicts the law on the
subject in the following words :
"also, if a person keeps his hogs,
or other noisome animals, 'or
allows filth to accumulate on his
premises, so near the house of
 another, that the stench incommodes
him and makes the air unwholesome,
this is an injurious nuisance, as
it tends to deprive him of the use
and benefit of his house. a like
injury is, if one's neighbour sets
up and exercises any offensive
trade; as a tanner's, a tallow
chandler's, or the like; for though
these are lawful and necessary
trades, yet they should be
exercised in remote places; for the
rule is, sic utere "tuo, ut alienum
non laedas;" this therefore is an
actionable nuisance. 'and on a
similar principle a constant
ringing of bells in one's immediate
neighbourhood may be a nuisance
....... with regard to other
corporeal heriditaments; it is a
nuisance to stop or divert water
that used to run to another's
meadow or mill; to corrupt or
poison a water-course, by erecting
a due house or a lime-pit, for the
use of trade, in the upper part of
the stream; 'to pollute a pond.
from which another is entitled to
water his cattle: to obstruct a
drain; or in short to do any act in
common property, that in its
consequences must necessarily tend
to the prejudice of one's
neighbour. so closely does the law
of england enforce that excellant
rule of gospel-morality, of "doing
to others. as we would they should
do unto ourselves ."
our legal system having been founded on the british
common law the right of a person to pollution free
environment isa part of the basic jurisprudence of the
land.
the statement of objects and reasons to the environment
act, inter alia, states as under :
"the decline in environmental
quality has been evidenced by
increasing pollution, loss of
vegetal cover and biological
diversity, excessive concentrations
of harmful chemicals in the ambient
atmosphere and in food chains,
growing risks of environmental
accidents and threats to life
support systems. the world
community's resolves to protect and
enhance the environmental quality
found expression in the decisions
taken at the united nations
conference on the human environment
held in stock hold in june, 1972.
government of india participated in
the conference and strongly voiced
the environmental concerns. while
several measures have been taken
for environmental protection both
before and after the conference,
the need for a general legislation
further to implement the decisions
of the conference has become
increasingly evident ......
existing lass generally focus on
specific types of pollution or on
specific categories of hazardous
substances. somemajor areas of
environmental hazardous are not
covered. there also exist uncovered
gaps in areas of major
environmental hazards. there are
inadequate linkages in handling
matters of industrial and
environmental safety. control
mechanisms to guard against slow,
insidious build up of hazardous
substances, especially new
chemicals, in the environment are
weak. because of a multiplicity of
regulatory agencies, there is need
for an authority which can. assume
the lead role for studying,
planning and implementing long-term
requirements of environmental
safety and to give direction to,
and co-ordinate a system of speedy
and adequate response to emergency
situations threatening the
environment ...... in view of what
has been state above, there is
urgent need for the enactment of a
general legislation on
environmental protection which
inter alia, should enable 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 members- preferably
with expertise in the field of pollution control and
environment protection- to be appointed by the central
government. the central government shall confer on the said
authority the powers to issue directions under section 5 of
the environment act and for taking measures with respect to
the matters referred to in clause (v), (vi) (vii) (viii)
(ix) (x) and (xii) of sub-section (2) of section 3. the
central government shall consitute the authority before
september 30, 1996.
2. the authority so constituted by the central government
shall implement the "precautionary principle" and the
"polluter pays" principle. the authority shall, with the
help of expert opinion and after giving opportunity to the
concerned polluters assess the loss to the
ecology\environment in the affected areas and shall also
identify the individuals/families who have suffered because
of the pollution and shall assess the compensation to be
paid to the said individuals/families. the authority shall
further determine the compensation to be recovered from the
polluters as cost of reversing the damaged environment. the
authority shall lay down just and fair procedure for
completing the exercise.
3. the authority shall compute the compensation under two
heads namely, for reversing the ecology and for payment to
individuals. a statement showing the total amount to be
recovered, the names of the polluters from who the amount is
to be recovered, the amount to be recovered from each
polluter, the persons to who the compensation is to be paid
and the amount payable to each of them shall be forwarded to
the collector\district magistrates of the area concerned.
the collector\district magistrate shall recover the amount
from the polluters, if necessary, as arrears of land
revenue. he shall disburse the compensation awarded by the
authority to be affected persons/families.
4. the authority shall direct the closure of the industry
owned/managed by a polluter in case he evades or refuses to
pay the compensation awarded against him. this shall be in
addition to the recovery from his as arrears of land
revenue.
5. an industry may have set up the necessary pollution
control device at present but it shall be liable to pay for
the past pollution generated by the said industry which has
resulted in the environmental degradation and suffering to
the residents of the area.
6. we imposepollution fine of rs. 10,000/- each on all
the tanneries in the districts of north arcot ambedkar,
erode periyar, dindigul anna, trichi and chengai m.g.r. the
fine shall be paid before october 31, 1996 in the office of
the collector/district magistrate concerned. we direct the
collectors/district magistrates of these districts to
recover the fines from the tanneries. the money shall be
deposited, alongwith the compensation amount recovered from
the polluters, under a separate head called "environment
protection fund" and shall be utilised for compensating the
affected persons as identified by the authorities and also
for restoring the damaged environment. the pollution fine is
liable to the recovered as arrears of land revenue. the
tanneries which fail to deposit the amount by october 31,
1996 shall be closed forthwith and shall also be liable
under the contempt of courts act.
7. the authority, in consultation with expert bodies like
neeri, central board, board shall frame scheme/schemes for
reversing the damage caused to the ecology and environment
by pollution in the state of tamil nadu. the scheme/schemes
so framed shall be executed by the state government under
the supervision of the central government. the expenditure
shall be met from the "environment protection fund" and from
other sources provided by the state government and the
central government.
8. we suspend the closure orders in respect of all the
tanneries in the five districts of north arcot ambedkar,
erode periyar, dindigul anna, trichi and chengai m.g.r. we
direct all the tanneries in the above five districts to set
up cetps or individual pollution control devices on or
before november 30, 1996. those connected with cetps shall
have to install in addition the primary devices in the
tanerries. all the tanneries in the above five districts
shall obtain the consent of the board to function and
operate with effect from december 15, 1996. the tanneries
who are refused consent or who fail to obtain the consent of
the board by december 15, 1996 shall be closed forthwith.
9. we direct the superintendent of police and the
collector/district magistrate/deputy commissioner of the
district concerned to close all those tanneries with
immediate effect who fail to obtain the consent from the
board by the said date. such tanneries shall not be reopened
unless the authority permits them to do so. it would be open
to the authority to close such tanneries permanently or to
direct their relocation.
10. the government order no. 213 dated march 30, 1989 shall
be enforced forthwith. no. new industry listed in annexure-i
to the notification shall be permitted to be set up within
the prohibited area. the authority shall review the case of
all the industries which are already operating in the
prohibited area and it would be open to authority to direct
the relocation of any of such industries.
11. the standards stipuated by the board regarding total
dissolved solids (tds) and approved by the neeri shall be
operative. all the tanneries and other industries in the
state of tamil nadu shall comply with the said standards.
the quality of ambient waters has to be maintained through
the standards stipulated by the board.
we have issued comprehensive directions for achieving
the end result in this case. it is not necesary for this
court to monitor these matters any further. we are of the
view that the madras high court would be in a better
position to monitor these matters hereinafter. we,
therefore, request the chief justice of the madras high
court to constitute a special bench "green bench" to deal
with this case and other environmental matters. we make it
clear that it would be open to the bench to pass any
appropriate order/orders keeping in view the directions
issued by us. we may mention that "green benches" 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.

petitioner:
s. jagannath

vs.

respondent:
union of india & ors.

date of judgment: 11/12/1996

bench:
kuldip singh, s. saghir ahmad.

act:

headnote:
judgment:
judgment
kuldip singh, j.
shrimp (prawn culture industry is taking roots in
india. since long the fishermen in indian have been
following the traditional rice/shrimp rotating acqua culture
system. rice is grown during part of the year and shrimp and
other fish species are cultured during the rest of the year.
however, during the last decade the traditional system
which, apart from producing rice, produced 140 kgs. of
shrimp per hectare ofland began to give way to more
intensive methods of shrimp culture which could produce
thousands of kilograms per hectare. a large number of
private companies and multi-national corporations have
started investing in shrimp farms. in the last few years
more than eighty thousand hectares of land have been
converted to shrimp farming. india's marine export weighed
in a 70,000 tonnes in 1993 and these exports are projected
to reach 200 thousand tonnes by the year 2000. the shrimp
farming advocates regard acquaculture as potential savior of
developing countries because it is a short-duration crop
that provides a high investment return and enjoys and
expanding market. the said expectation is sought to be
achieved by replacing the environmentally benign traditional
mode of culture by semi-intensive and intensive methods.
more and more areas are being brought under semi-intensive
and intensive modes of shrimp farming. the environmental
impact of shrimp culture essentially depends on the mode of
culture adopted in the shrimp farming. indeed, the new trend
of more intensified shrimp farming in certain parts of the
country - without much control of feeds, seeds and other
inputs and water management practices - has brought to the
fore a serious threat to the environment and ecology which
has been highlighted before us.
this petition under article 32 of the constitution of
india - in public interest - has been filed by s.
jagannathan, chairman, gram swaraj movement, a voluntary
organisation working for the upliftment of the weaker
section of society. the petitioner has sought the
enforcement of coastal zone regulation notification dated
february 19, 1991 issued by the government of india,
stoppage of intensiveand semi-intensive type of prawn
farming in the ecologically fragile coastal areas,
prohibition from using the waste ands/wet lands for prawn
farming and the constitution of a national coastal
management authority to safeguard the marine life and
coastal areas. various other prayers have been made in the
writ petition. this court issued notice by the order dated
october 3, 1994. on december 12, 1994, this court passed the
following order:-
"ministry of environment and
 forests, govt. of india issued a
notification dated february 19,
1991, under clause (d) of sub-rule
(3) of rule 5 of the environment
(protection) rules, 1986 wherein it
was declared that the coastal
stretches of seas, bays, estuaries,
creeks, rivers and backwater which
are influenced by the tidal action
(in the landward side) upto 500
metres from the high tide line
(htl) and the land between the low
tide line (ltl) and the htl are
coastal regulation zone. the
central govt. has imposed various
restrictions in the said
notification. mr. mehta, learned
advocate appearing for the
petitioners states that despite the
issue of the notification
unauthorised industries and other
construction is being permitted by
various states within the area
which has been declared as coastal
regulation zone
................meanwhile we direct
all the respondent states not to
permit the setting up of any
industry or the construction of any
type on the area at least upto 500
metres from the sea water at the
maximum high tide. the above said
area i.e. from the high tide level
upto 500 metres shall be kept free
from all construction of any type".
the union of india and states/union territories of
gujarat, maharashtra,orrisa, kerala, tamil nadu, west
bengal, goa, pondicherry, daman/deu, andaman/nichobar and
lakshdeep have filed replies to the writ petitions. this
court on march 27, 1995 passed the following order:-
"this public interest petition is
directed against the setting up of
prawn farms on the coastal areas of
andhra pradesh, tamil nadu and
other coastal states. it is alleged
that the coastal states are
allowing big business houses to
develop prawn farms on a large
scale in the ecologically fragile
coastal areas of the states
concerned in violation of
 environment protection act, 1986
and the rules framed thereunder and
various other provisions of law. it
is also alleged that establishment
of prawn farms on rural cultiviable
lands is creating serious
environmental, social and economic
problems for the rural people
living along with the coastal bed
specially in the east
coast.................. meanwhile,
we direct neeri, nagpur through its
director to appoint in
investigating team to visit the
coastal areas of the states of
andhra pradesh and tamilnadu and
give its report to this court
regarding the various farms which
are being set up in the said area.
in case the investigating team
finds that the ecologically fragile
area is being environmentally
degraded then it shall suggest the
remedial measures in that respect.
the neeri team shall keep in view
the notification dated february 19,
1991 of the ministry of environment
and forests, govt. of india, issued
under the environment protection
act, 1986 and also the provisions
of the tamil nadu agriculture
(regulation) act, 1995. the neeri
shall submit its report before
april 30, 1995".
pursuant to the above quoted order, the national
environmental engineering research institute, nagpur (neeri)
submitted its report dated april 25, 1995 before this court.
this court further directed neeri to send an expert team to
the coastal areas in other states and file its report within
two months. the report was filed in this court within the
specified time. this court on may 9, 1995 passed the
following order:-
"this matter be listed for final
hearing on 4th august, 1995.
meanwhile we direct that no part of
agricultural lands and salt farms
be converted into conmmercial
aquaculture farms hereinafter. we
further direct that no ground water
withdrawal, be allowed for
aquaculture purposes to any of the
industries whether already existing
or in the process of being set up.
no further shrimp farms or any
acquaculture farms be permitted to
be s et up in the areas in dispute
hereinafter.
we direct the respective state
governments (the collector
concerned or any other officer
appointed by the government) to
provide free access through
acquaculture units to the sea coast
to the fishermen/tourists after
hearing the parties concerned.
mr. mehta has contended that due to
these farms occupying the most of
the coastal areas it has become
difficult for the villagers to
search for fresh water. the state
govt. may examine this aspect and
provide water by way of tankers
wherever it is necessary.
so far as the farmers in the state
of tamil nadu are concerned they
are all represented through of
kapil sibal and his team. we direct
the state of a.p. to send a copy or
the order of this court to all the
aquaculture farms in the state of
a.p. informing them that the matter
shall be taken up by this court for
final hearing on 4th august, 1995.
this may be done by the state of
a.p. by the end of june, 1995.
we direct the pondicherry
administration to send a copy of
the order of this court to all the
aquaculture farms in pondicherry
informing them that the matter
shall be taken up by this court for
final hearing on 4th august, 1995.
this may be done by the pondicherry
admn. by the end of june 1995.
we further direct the
superintendent of police and the
collector of the areas concerned to
see that the order of this court
specially the directions given are
meticulously complied with by all
the farms."
before finally hearing this matter, this court passed
the following order on august 24, 1995:-
"we are of the view that it would
be in the interest of justice to
have full representation before us
so far individual aqua-farms in
various states/union territories
are concerned. we, therefore,
adjourn the hearing to october 17,
1995. meanwhile, we direct the
coastal states/union territory
governments, through their learned
counsel who are present in the
court, to issue individual notices
to all the aqua-farms which are
located in their respective
territories. it may be stated in
the notices that the same are being
issued under the direction of this
court. it should also be
specifically mentioned that if they
want to be heard in these matters
by this court, they be present
through their
counsel/representatives in the
court, on the next date of hearing,
which is october 17, 1995. we also
direct the marine products exports
development authority (mpeda),
through its counsel mr. harish n.
salve, to do the same exercise at
its level also. apart from that, we
further direct all the state
governments/union territories to
issue public notices in this
respect in daily newspapers which
have circulation in the coastal
areas, informing the aqua-farms
regarding the hearing of these
matters in this court, on october
17, 1995. this may be done on two
consecutive days.
notices and publication be
completed within 3 weeks from
today. meanwhile, we direct all the
state governments/union territories
not to give fresh
licences/permission for setting
up/establishment of any aqua-farm
in their respective territories
till further orders."
coastal pollution, universally, is an emerging problem.
so far as india is concerned it has already become a serious
environmental problem. besides direct dumping of waste
materials in the seas discharge through marine outfalls,
large volumes of untreated of semi-treated waste generated
in various land-based sources/activities ultimately find way
to the seas. the coastal waters directly receive the inland
waters, by way of surface run-off and land-drainage, ladden
with myriad of refuse materials - the rejects or wastes of
the civilisation. apart from inputs from rivers and
effluent-outfalls, the coastal areas are subject to
intensive fishing, navigational activities, recreations,
ports, industrial discharge and harbours which are causative
factors of water quality degradation to varying degrees.
contrary to the open sea, the changes in the quality of
coastal waters, are much greater due to river discharges
under tidal conditions.
with noticeable increase in marine pollution and the
consequential decline in marine resources, serious concern
was expressed in the united nations' conference on human
environments in stockholm (1972) attracting global attention
towards the urgent need of identifying the critically
polluted areas of the marine environments, specially in
coastal waters, for urgent remedial actions. the conference
unanimously resolved that the littoral states should take
early action at their national level for assessment and
control of marine pollution from all sources and carry out
systematic monitoring to ascertain the efficacy of the
pollution regulatory actions taken by them. in the
background of the stockholm conference and in view of 1982
convention on the "law of the sea" defining jurisdiction of
territorial waters, a model comprehensive action plan has
been evolved under the united nations' environment programme
(unep). keeping with the international commitments and in
greater national interest, the government of india and the
governments of the coastal states are under a legal
obligation to control marine pollution and protect the
coastal-environments.
according to the facts placed on record by the central
pollution control board the board the coastline of india's
mainland is about 6000 km long. but or the total landmass of
about 3.28 million sq. kms nearly 0.15 million sq. kms of
coastal land-belt (considering 25 km landward distance)
girdles three sides of the country's sea front which in turn
underlays about 3.13 million sq. km sea-bed upto the
territorial limit. the country being riverine, has 14 major,
44 medium and 55 minor rivers which discharge annually about
1566 thousand million cubic meters of water through land
drainage into the seas transporting a wide range of
pollutants generated by land-based activities. nine out of
fourteen majorrivers meet the sea in the east coast
(brahmaputra through bangladesh) and the remaining five in
the west coast (indus through pakistan).
besides land drainage, there are large number or marine
coastal out falls discharging directly or indirectly
industrial and municipal effluents into seas. uncontrolled
disposal of land-based waste into the seas, through rivers
and effluent outfalls, is a major cause of pollution of
coastal waters. there are nine coastal states and one union
territory (ut) in india namely, gujarat, maharashtra, goa,
karnataka, kerala, tamil nadu, pondicherry (ut), andhra
pradesh, orissa and west bengal, more than one-fourth of the
total population of the country is settled in the coastal
areas. the board in its report regarding "pollution
potential of industries in coastal areas of india" dated
november, 1995 gives the following date regarding
aquaculture farms:
"the effluent generation from
aquaculture farms in the east coast
only, in absence of data on west
coast farms, is to the tune of 2.37
million cubic meters per day, out
of which andhra pradesh has the
lion share of about 2.12 million
cubic meters per day.... it may be
noted that in all the states, in
most cases, the effluent discharge
is indirect (through estuaries,
creeks, canals, harbours). it may
also be noteworthy that the
effluents from aquaculture farms
are discharged directly/indirectly
into the coastal waters practically
without any treatment. for disposal
of solid waste, on the other hand,
open dumping and land filling is a
common practice."
in marine pollution control utmost importance has t b
given to the beaches. the beaches and other areas of special
interest are to be maintained aesthetically and at
permissible levels of enteric bacteria. protection of
ecologically sensitive areas and land-sea interface resource
areas is equally important. the central board for the
prevention and control of water pollution (central board) in
its report "coastal pollution control series copocs/1/1982"
recommended as under:-
"- the mangrove forest at
pichavaram, the bird sanctuary and
forest areas at point calimere and
coral reef at mandapam are
ecologically sensitive areas
warranting special watch and
preservation.
 - recreational coastal portions
of some sector of the stretch under
investigation such as marine and
elliot beaches at madras,
mahabalipuram, pondicherry beach at
pondicherry and poompuhar at the
confluence of the river cauvery
with the sea are to be maintained
at appropriate quality level.
- continuous monitoring of the
coastal waters especially heavy
metals and pesticides in the biota
should be carried out to detect
possible biomagnification of some
toxic chemicals and to provide
early warning."
the central board in its report "coastal pollution
control series copocs/s/1986-87" sought protection of the
ecologically fragile areas in the following terms:-
"the mangrove forest and the
wildlife sanctuary in coringa
island, the pulicat lake and the
bird sanctuary at nelapattu are the
ecologically sensitive areas
warranting special attention and
protection. no industrial activity
which may pose a danger to the
ecosystem in these areas should be
permitted.
at pulicat lake area,
machilipatnam, naupada and
ichapuram, salt pan irrigation is
practised. no water polluting
industry should be allowed nearby.
the domestic sewage and the
industrial effluents entering the
kolleru lake through various drains
be properly treated so that no
pollutants enter the coastal water
through upputeru drain".
shrimps are basically marine. shrimp are also called
prawns. in commercial jargon, marine prawns are referred to
as shrimps and freshwater ones as prawns. prawns and shrimps
are invertebrates and are decided crustaceans. sea is their
home and they grow to adulthood and breed in the sea. the
progeny start their life by drifting into estuaries and such
other brackishwater areas for feeding. in about 4-6 months
the larvae grow into adolescence and go back to their real
home of birth, the sea.
aquaculture has been practised for many centuries by
small farmers and fisher folk in asia to improve their
living conditions. however, there is a vast difference
between eh traditional methods and the new commercialised
system. the traditional aquaculture, including shrimp, is
usually small-scale, using low inputs and relies on natural
tidal action for water-exchange. in some countries, such as
india, bangladesh and thailand, there is a tradition of
rice/shrimp rotating, with rice grown part of the year and
shrimp and other fish species cultured the rest of the year.
chemicals, antibiotics and processed feeds are not used in
the traditional method. in this low-yield, natural method,
the harvest is small but sustainable over long periods. it
has no adverse affect on the environment and ecology. the
modern method, on the other hand, is larger is scale and
intensive or semi-intensive in nature. it is owned and
operated by commercial and often foreign-owned companies
which mainly export the shrimp. in intensive aquaculture,
selected species are bred using a dense stocking rate. to
maintain the very crowded shrimp population and attain
higher production efficiency, artificial feed, chemical
additives and antibiotics are used.
the food and agriculture organisation (fau) - an organ
of united nations organisation (unu) - published a report in
april, 1995 on a regional study and workshop on the
environmental assessment and management or aquaculture
development. copy of the report has need placed on record by
mr. santosh hedge, learned counsel for the state of
karnataka. india was one of the 16 countries participated in
the workshop. dr. k. alagarswami, director, central
institute of brackishwater aquaculture, madras presented a
paper titled "the current status of aquaculture in india,
the present phase of development and future growth
potential". (hereinafter called alagarswami report). it has
been published as an annexure to the workshop-report
published by the fao. para 5.1.2 of alagarswami report gives
various types of technologies adopted by the aquaculture
industry in india. it would be useful to reproduce the same
hereunder:-
"5.1.2 types of technology -
changes in technology with time
traditional: practised in west
bengal, kerala, karnataka and goa,
also adopted in some areas of
orissa. coastal low-living areas
with tidal effects along estuaries,
creeks and canals; impoundments of
vast areas ranging from 2-200 ha in
size. characteristics; fully
tidally-fed; salinity variations
according to monsoon regime; seed
resource of mixed species from the
adjoining creeks and canals by
auto-stocking; dependent on natural
food; water intake and draining
managed through sluice gates
depending on local tidal effect; no
feeding; periodic harvesting during
full and new moon periods;
collection at sluice gates by traps
and by bag nets; seasonal fields
alternating paddy (monsoon) crop
with shrimp/fish crop (inter
monsoon); fields called locally as
bheries, pokkali fields and khazan
lands.
improved traditional: system as
above but with stock entry control;
supplementary stocking with desired
species of shrimp seed (p. monodon
or p. indicus); practised in ponos
of smaller area 2-5 ha.
extensive : new pond systems; 1-2
ha ponds; tidally fed; no water
exchange, stocking with seed; local
feeds such as claims, snails and
pond-side prepared feed with
fishmeal, sova, oilcake, cereal
flour etc.; wet dough ball form;
stocking density around 20,000/ha.
modified extensive system as above;
pond preparation with tilling,
liming and fertilisation; some
water exchange with pumpsets;
pellet feeds indigenous or
imported; stocking density around
50,000/ha.
semi-intensive new pond system;
ponds 0.25 to 1.0 has in size;
elevated ground with supply and
drainage canals; pond preparation
methods carefully followed; regular
and periodic water exchange as
required; pond aerators (paddle
wheel) at 8 per ha; generally
imported feed with fcr better than
1:1.5 or high energy indigenous
feeds; application of drugs and
chemicals when need arises; regular
monitoring and management stocking
density 15-25/m2.
intensive ponds 0.25-0.50 ha in
size; management practices as
above; 4 aerators in each pond;
salinity manipulation as possible;
central drainage system to remove
accumulated sludge; imported feed;
drugs and chemicals used as
prophylactic measures; <??> control
and management; stocking density
20-35/m2
changes in technology: as already
indicated. the initial concept and
practice was to develop tide-red
systems, this slowly gave way to a
pump-fed systems. presently, the
emphasis is on seawater based
farming systems for p. monodon with
a water intake system extending far
into the sea with submerged
pipelines, pier system and gravity
flow. from sandy clay soils, the
present coastal farms are located
in sandy soils also with seepage
control provisions."
alagarswami report further states as under:-
"the ministry of environment and
forests, government of india issued
a notification s.u. no.114 (e) in
1991, under "the environment
(protection) act, 1986" declaring
coastal stretches as coastal
regulation zones (crz) and
regulating activities in the crz.
this notification ha simplications
for coastal aquaculture,
particularly those activities
within 500 m from the high tide
line.... no regulations to control
the use of chemicals and drugs
exist. pollution control board
general regulations on effluent
discharges include hazardous
substances, but they are not
specific to aquaculture. in some
regions, there is indiscriminate
use of chemicals and pesticides,
particularly in shrimp farms....
under the notification of union
ministry of environment and
forests, each maritime state is
expected to have its own coastal
zone management plan, which would
consider aquaculture zonation
requirements, along with shoreline
 development. the zone up to 500
metres from the waterline along the
sea is restricted against any
construction activity."
alagarswami report high lights various environmental
and social problems created by the coastal acquaculture. the
relevant part of the report is as under:-
"physical factors
shrimp farming along the coastal
area of the whole country is
developing at a rapid rate. huge
cylone protection dykes and
peripheral dykes are constructed by
the shrimp farmers. in many cases
as in kandleru creek (andhra
pradesh), the farm areas are the
natural drainage areas for floods.
due to physical obstruction caused
by the dykes, the natural drain is
blocked and flood water acumulates
in the hinterland villages.
protests are being made by people
in some of the villages against
such dykes. the ponds are
constructed right on the bank of
the creeks without leaving any area
for draining of flood water.
right of passage of coastal
fishermen
the shrimp farms do not provide
access to the beach for traditional
fishermen who have to reach the sea
from their villages. as farms are
located and entry is restricted,
the fishermen have to take a longer
route to the sea for their
operations. this is being objected
to by traditional fishermen.
drinking water problems
the corporate sector has purchased
vast areas adjoining the villages
which, in some cases, include
drinking water public wells of the
villages. the villagers cannot use
these wells anymore as they are
located in private land owned by
the farmers. this is causing social
problems.
salinisation
it is reported that salinisation of
land is spreading further landwards
 and the wells yield only saline
water. in tamil nadu and andhra
pradesh protests have been voiced
against salinisation. some of the
socially conscious shrimp farm
operators are providing drinking
water to the affected villages by
laying a pipeline from their own
freshwater source wherever
available. apart from wells. the
agricultural farms adjoining the
shrimp farms are reported to be
affected. however, there is
increasing conversion of paddv
fields as in the bhimavaram area of
andhra pradesh and even on the
fringes of chilka lake into shrimp
farms.
mangrove areas
the status report on mangroves of
india published by the ministry of
environment and forests (go1, 198/)
is shown in table 5. in the earlier
years, vast areas of mangrove were
destroyed for agriculture,
aquaculture and other uses. in the
more recent years, the mangroves
have been protected by law.
however, the satellite imagery
pictures show destruction of
mangroves in krishna and guntur
districts of andhra pradesh for
construction of shrimp farms.
gujarat state is planning major
shrimp culture programmes in the
narmada region adjoining gulf at
cambay. protection of mangroves
should receive attention.
alagaraswami report further indicates that the demand
for shrimp seed is growing with the expansion of shrimp
culture and hatchery production is unable to meet it.
exploitation of natural seed resources is growing unabated,
particularly in west bengal, orissa and andhra pradesh.
large quantity of fry by-catch are discarded by the fry
collectors because their value is insignificant. the report
states "elimination of fry in the fry by-catch is not only
detrimental to the predators thriving on them, but it also
creates an ecological imbalance".
agitations by the environmentally conscious people of
the coastal-areas against polluting acquaculture
technologies has been noticed by alagaswamy report as
under:-
people's awareness
people in general have become aware
of the environmental issues related
to aquaculture. a current case in
point is the agitation against a
large commercial farm coming up in
chilka lake (orissa). people have
demanded an eia of the project.
people in nellore district in
andhra pradesh have raised
environmental issues and called for
adoption or environmentally-
friendly technologies and rejection
of "imported" technologies from
regions which have suffered
environmental damage. protests have
been voiced by the local people in
tuticorin area in tamil nadu. both
print and visual media take up
environmental issues with a great
deal of zeal. this appears to augur
well for regulating coastal shrimp
farming with eco-friendliness".
the intensive-farming technique and the pollutants
generated by such farming have been noticed by alagaswamy in
the following words:-
"in intensive farming, stocking
densities are on the increase. in
one instance, p. indicus was
stocked at 70 post larvae/m2,
almost reaching the levels of
taiwan before the disease outbreak
in 1988. this necessitates heavy
inputs of high energy feeds, the
use of drugs and chemicals and good
water exchange. the organic load
and accumulation of metabolites in
the water drained into the sea
should be very high as could be
seen from the dark-brown colour and
consistency of the drain water."
the alagaswamy report further states that paddy fields
are being converted to shrimp farms, as in some parts of
andhra pradesh (e.g. bhimavarami, some paddv lands along the
fringe of chilka lake have been last to shrimp farming.
the report suggests future management strategies -
quoted hereunder - for farms and government in resolving any
conflicts or environmental problems:-
"as shrimpfarming is developing
fast, the following strategies have
been developed for avoiding
problems which have arisen in other
countries (or reducing their
impact):
1. india needs to boost
production of shrimp through
aquaculture with environment and
development as a unified motto.
2. since the area available is
vast, this can be achieved by
application of environmentally -
friendly technologies for optimal
production rates against maximum
production rates.
3. sustainable development or
shrimp aquaculture should be guided
by the principles of social equity,
nutritional security, environmental
protection and economic development
with a holistic approach to achieve
long-term benefits.
4. new definitions and parameters
of extensive, semi-intensive and
intensive culture systems as suited
to indian conditions and government
policies rather than copying models
of other countries (particularly
those which have rushed and
suffered) and the development or
guidelines thereof.
5. diversification of species
among shrimps and to integrate fish
wherever possible to suit the
different agro-climatic and aquatic
zones of the country.
6. careful development of coastal
zone management plans under crz to
meet the requirements of coastal
aquaculture development plans with
some flexibility (as required) for
specific areas.
7. indentification of aquaculture
zones or careful consideration and
provision of buffer zones against
possible impact on other land uses:
also intermediate buffer zones
within aquaculture zones.
8. consideration of the living,
social and vocational needs of
local people in villages/towns in
aquaculture plans in order to avoid
conflicts.
9. development of sets or
regulations on use/ban of drugs and
chemicals, including antibiotics,
in hatcheries and farms; on
abstraction of groundwater and
salinisation problems.
10. development of standards for
effluent discharge as applicable to
local conditions.
11. development of viable
technologies for secondary
aquaculture to gainfully utilise
nutrient enriched farm effluents
and encourage farmers to adopt such
technologies with the necessary
support.
12. in view of the fact that
coastal farms are located generally
in remote areas and cannot be
monitored by external agencies on a
reasonably effective basis,
farmers/group of farmers should
equip themselves with facilities to
monitor possible important
parameters at periodic intervals
and maintain such records for their
own benefits and for production to
inspecting agencies.
13. brackishwater fish farmer
development agencies to be
strengthened in all respects,
including environmental management
and disease diagnosis, prevention
and control, through appropriate
training and setting up district
level laboratories for essential
analytical and diagnostic work.
14. manpower development at
managerial and technical level.
15. research-extension-farmer
group meet for appropriate
technologies and feedback.
16. effective monitoring and
enforcement of regulations, use of
nets and fishing in any specified
water for a period not exceeding
two years. thus, legal provisions
were made on fisheries matters in
india nearly a century ago"
alagarswami's report identifies salinisation or land
salinisation of drinking water wells, obstruction of natural
drainage of flood water, passage of access to sea by
fishermen and public, self-pollution or ponds, pollution of
source water, destruction or mangroves land subsidence and
pressure on wild seen resources and consequences thereof as
environmental issues in shrimp culture. para 6.2 of the
report lists the following preventive measures:-
"6.2 prevention
(i) aquaculture units causing
harmful changes to the environment;
and
(ii) non-aquaculturists from
modifying the environment to the
detriment of aquaculture production
units.
1. enforcement of legal
provisions under the relevant acts
of the government.
2. crz regulations to consider
specific needs of aquaculture as an
expanding production activity and
the coastal zone management plans
of the states/union territories to
carefully plan taking into
consideration present situation and
future needs.
3. early development of
regulations on permissible levels
of most significant parameters of
water quality keeping in view the
limited intervention of aquaculture
for promoting growth of stock in
the medium.
4. environment impact assessment
(eia) and environmental monitoring
plan (emp) to be insisted upon for
larger units and self
assessment/monitoring for smaller
units, subject to verfication at
inspection.
5. zonations and appropriate
siting of farms; not to proliferate
indiscriminately but to develop in
a planned manner for sustaining
production (alagarswami, 1991).
6. more hatcheries to be
encouraged and supported to meet
seed demands to reduce pressure on
wild seed resources.
7. feed mills to maintain quality
of feeds and to ensure water
 stability as required;
self/external inspection mechanism
to be introduced to maintain
specific standards.
8. mangrove forests not to be
touched for aquaculture purposes."
the fao report - based on alagaswami report
states the impact of aquaculture on the environment, in
india, as under:-
"the impact of aquaculture on the
environment are as follows;
by shrimp culture: loss of
agricultural land and mangroves,
obstruction of natural drains,
salinisation, destruction of
natural seed resources, use of
drugs and chemicals, and extraction
of groundwater. social conflicts
have arisen."
alagarswami report - quoted by us extensively - is an
authentic document relating to the functioning of shrimp
culture industry in india. it has rightly been suggested in
the report that sustainable development should be the
guiding principle for the shrimp aquaculture. the industry
must develop under the unified motto of environment and
development. environmentally-friendly technologies are to be
adopted with a view to achieve optimal production. the
report calls for a ban on the use of drugs, chemicals and
antibiotics in the shrimp culture farms. the report clearly
indicates that except the traditional and improved
traditional, the other methods or strimp aquaculture are
polluting and as such may have an adverse impact on the
environment.
mr. m.c. mehta, learned counsel for the peititoner, has
taken us through the neeri reports and other voluminous
material on the record. he has vehemently contended that the
modern - other than traditional - techniques of shrimp
farming are highly polluting and are detrimental to the
coastal environment and marine ecology. according to him
only the traditional and improved traditional systems of
shrimp farming which are environmentally friendly should be
permitted. mr. mehta has take us through the notification
dated february19, 1991 issued by the government of india
under section 3 of the environment (protection) act, 1986
(the act) (urz notification) and has vehemently contended
that setting up of shrimp farms on the coastal stretches of
seas. days, estuaries, creeks, rivers and backwaters upto
500 meters from the high tide line (htl) and the line
between the low tide line (ltl) and the htl is totally
prohibited under para2 of the said notification. the
relevant part of the notification is as under:
"2. prohibited activities:
the following activities are
declared as prohibited within the
coastal regulations zone, namely:
(i) setting up of new industries
and expansion of existing
industries, except those directly
related to water front or directly
needing fore-shore facilities.
(ii) manufacture or handling or
storage or disposal of hazardous
substances as specified in the
notifications of the government of
india in the ministry of
environment y forests no.s. 0.59.1
(e) dated 28th july, 1989, s.o.
966(e) dated 27th november, 1989
and gsr 103/(e) dated 5th december,
1989:
(iii) setting up and expansion or
fish processing units including
warehousing (excluding hatchery and
natural fish drying in permitted
areas):
(v) discharge of untreated wastes
and effluent from industries,
cities settlements. schemes shall
be implemented by the concerned
authorities phasing out the
existing practices, if and within a
reasonable time period not
exceeding three years from the date
of this notification.
(viii) land reclamation, punding or
disturbing natural course or sea
water with similar obstructions,
except those required for control
of coastal erosion and maintenance
clearing of waterways, channels an
for prevention of sandbars and all
except for tidal regulators. storm
water drains and structures for
prevention of salinity ingrease and
for sweet water recharge.
(x) harvesting or drawal of ground
water and construction of
mechanisms therefore with 200 m of
htl; in the 200 m to 500 m zone it
shall be permitted only when do
manually through ordinary wells for
draining, horticulture, agriculture
 and fishering."
according to mr. mehta the shrimp culture industry is
neither "directly related to water iron" nor "directly
needing fore-shore facility" and as such is a prohibited
activity under para 2(1) of the crz notification. mr. kapil
sibal on the other hand has argued that a shrimp farm is an
industry which is directly related to water front and cannot
exist without fore-shore facilities. relying upon oxford
english dictionary mr. sibal contended that "water front"
means land abetting on the sea, that part of a town which
fronts on a body of water. according to him "foreshore" in
terms of the said dictionary means the part of the shore
that lies between the high tide and the low tide. according
to webster comprehensive dictionary. international edition
the expression`foreshore' means "that part of a shore
uncovered at low tide".
it is, thus, clear that the part of the shore which
remains covered with water at the high tide and gets
uncovered and become visible at the low tide is called
"foreshore". it is not possible to set no a shrimp culture
farm in the said area because it would completely sub-merge
in water at the high tide. it is, therefore, obvious that
foreshore facilities are neither directly nor indirectly
needed in the setting up of a shrimp farm. so far as "water
front" is concerned it is no doubt correct that shrimp farm
may have some relation to the water front in the sense that
the farm is dependent on brackish water which can be drawn
from the sea. but on a close scrutiny, we are of the view
that shrimp culture farming has no relation or connection
with the `water front' though it has relation with brakish
water which is available from various water-bodies including
sea. what is required is the "brakish water" and not the
`water front'. the material on record shows that the shrimp
ponds constructed by the farms draw water from the sea by
pipes, <??> etc. it is not the `water front' which is needed
by the industry, what is required is the brakishwater which
can be drawn from any source including sea and carried to
any distance by pipes etc. the purpose of crz notification
is to protect the ecological fragile coastal areas and to
safe guard the aesthetic qualities and uses of the sea
coast. the setting up of modern shrimp aquaculture farms
right on the sea coast and construction of ponds an other
infrastructure thereon is per se hazardous and is bound to
degrade the marine ecology, coastal environment and the
aesthetic uses of the sea coast. we have, therefore, no
hesitation in holding that the shrimp culture industry is
neither "directly related to water front" nor "directly
needing foreshore facilities". the setting up of shrimp
culture farms within the prohibited areas under the crz
notification cannot be permitted.
para 2(viii) of the crz notification quoted above,
prohibits the bunding or disturbing the natural course of
sea water with similar obstructions. a band is an embankment
or dyke. alagarswami report in para 4.3.2 (quoted above) has
specifically mentionedthat huge cyclone protection dykes
and peripheral dykes are constructed by the shrimp farmers.
the report further states that due to physical obstruction
caused by the dykes the natural drain is blocked and flood
water accumulated in the hinterland villages. the report
notices that the shrimp ponds are constructed right on the
bank of the creeks without leaving any area to draining of
flood waters. a shrimp farm on the coastal area; by itself
operates as a dyke or a band as it leaves no area for
draining of the flood waters. the construction of the shrimp
farms, therefore, violate clause (viii) of para 2 of the crz
notification, in view of the findings by the alagarswami
report it may be useful to hold an inquiry/investigation to
find out the extent of loss occurred, if any to the villages
during the recent cyclone in the state of andhra pradesh
because of the dykes constructed by the shrimp farmers.
annexure-1 to the crz notification contains regulations
regarding coastal area classification and development. the
coastal stretches within 500 m of htl of the landward side
are classified into four categories, namely, crz-i, crz-ii,
crz-iii and crz-iv. para 6(2) of the crz notification lays
down the norms for the development ht or construction
activities in different categories of crz areas. in crz-iii
zone agriculture, horticulture, gardens, pastures, parks,
playfields, forestry, and salt manufacture from sea level
may be permitted upto 200 m from the high vide line. the
aquaculture or shrimp farming has not been includedas a
permissible use and as such is prohibited even in this zone.
a relevant point arises at this stage. salt manufacturing
process like the shrimp culture industry depends on sea
water. salt manufacturers can also raise the argument that
since they are wholly dependent on sea-water theirs is an
industry "directly related to water front" or "directly
needing fore-shore facilities". the argument stands
negatived by inclusion of the salt manufacturing industry in
crz-iii zone under para b(2) or the crz notification
otherwise it was not necessary in include the industry
therein because it could be set-up any were in the coastal
regulation zone in terms of para 2(1) of the crz
notification. it is thus obvious that an industry dependent
on sea water cannot by itself is an industry "directly
related to water front" or "directly needing fore-shore
facilities". the shrimp culture industry, therefore, cannot
be permitted to be set up any where in the coastal
regulation zone under the crz notification.
we may examine the issue from another angle. sea coast
and beaches are a gift of the nature to the mankind. the
aesthetic qualities and recreational utility of the said
area has to be maintained. any activity which has the affect
or degrading the environment cannot be permitted. apart from
that the right of the fisherman and farmers living in the
coastal areas to eke their living by way of fishing and
farming cannot be denied to them. alagarswami report states
that "the shrimp farms do not provide excess to the beach
for traditional fishermen who have to reach the sea from
their villages. as farms are located and entry is restricted
the fishermen have to take a longer route to the sea for
their operation. this is being objected by traditional
fishermen".
the alagarswami report further highlights drinking
water problem, salinisation and destruction of mangrove by
the shrimp culture industry. the relevant paragraphs have
already been quoted above. the increase of stocking
densities, heavy inputs of high energy feeds, use or drugs
and chemicals result in the discharge or highly pulluted
effluent into the sea, creeks etc. and on the sea coast by
the shrimp farms. it is, therefore, not possible to agree
with mr. sibal that commercial shrimp farming has no adverse
affect on environment and coastal ecology.
we may at this stage refer to the two investigation
reports dated april 23, 1995 and july 10, 1995 by neeri
regarding the ecological fragile coastal areas of india.
the report dated april 23, 1995 states that a 13 member
team of scientists, lead by dr. a.s. ball and dr. s.k. kaul
inspected the shrimp farms situated on the ecological
fragile coastal areas in the states of andhra pradesh and
tamil nadu between april 10 and april 19, 1995. it is
further stated that the coastal areas in the union territory
of pondicherry were also inspected by the team. regarding
the crz notification, the report states as under:-
the mef's notification dated
february 19, 1995 stipulates that
the aquaculture farms on the
coastal areas should not be
constructed within 500 m from the
high tide line (htl) of the seas.
the hatcheries however, may be
constructed between 250 and 500 m
from htl of the sea.
the inspection team observed during
field investigations that the mef's
norms for location of aquaculture
and hatcheries have been violated
in the states of andhra pradesh,
tamil nadu, and the union territory
of pondicherry........ there is an
urgent need to ensure scrupulous
implementation of the provisions
made in the mef's notification
 dated february 19, 1991 in the
states and union territory
inspected by the team. in addition,
the damage caused to the land and
water ecosystems by coastal
aquaculture activity, as detailed
in the report, must be restored to
its original ecological state. the
cost for eco-restoration of the
coastal fragile area must be borne
by individual entrepreneurs of the
coastal aquaculture farms in
keeping with the polluter-pays
principle........ further, no
activity of commercial coastal
aquaculture should be undertaken
even beyond 500 m htl unless a
comprehensive and scientific
environmental impact assessment
(eia) study has been conducted by
the entrepreneur, and the
environmental management plan
approved by the respective state
department of environment,
pollution control board, shore
development authority, and also by
the ministry of environment and
forests. appropriate terms of
reference for eia have been
incorporated in the report."
regarding the socio-economic assessment of acquaculture
in the area, the report gives the in following finding:-
"a socio-economic assessment of
aquaculture in the ecologically
fragile coastal areas in the states
of ap and tn has been conducted by
the neeri team. this assessment,
detailed in the report, indicates
that the cost of ecological and
social damage far exceeds the
benefits that accrue out of coastal
aquaculture activities."
the adverse impacts of acquaculture farming on the
environment and the ecologically fragile in the states of
andhra pradesh, tamil nadu and union territory of
pondicherry have been stated in the report as under:-
"3.0 observations on the impacts of
aquaculture farming on ecologically
fragile areas in states of ap, tn,
and union territory of pondicherry
coastal aquaculture units are
situated within 500 m of high tide
line of the sea. this is not in
consonance with the mef's
notification dated february 19,
1991.
it is a common practice to convert
agricultural land, and land under
salt production, into coastal
aquaculture units which infringes
the fundamental rights to life and
livelihood.
conversion of agricultural farms
and salt making lands into
commercial aquaculture farms is
rampant in the fragile coastal
areas of andhra pradesh, tamil nadu
and union territory of pondicherry.
brackish aquaculture units have
been installed in deltaic regions
which is a ecologically unsound
practice.
natural saline canals which travel
from sea to the mainland are being
used for brackish aquaculture
farming. the flow of the natural
saline canals is being obstructed
due to prawn farming activity which
has resulted in the spread of
brackish water over agricultural
farms resulting in loss or
agricultural lands, and potable
water.
villages situated along the sea
coast, deltaic regions, and natural
saline canals are under threat due
to diversion of land to aquaculture
farms.
traditional fishermen have lost
their landing grounds for fish
catch.
coastal aquaculture has resulted in
loss of mangrove eco-systems which
provide protection against cyclones
and other natural hazards, and
which provide natural habitats for
spawning or marine <??>
indiscriminate destruction of
mangrove areas in and around the
creeks, estuaries, and sea has
resulted in loss of natural
breeding grounds for shrimps.
natural casuarine plantations have
also been destroyed. this may
result in increasing damage from
cyclons, and intrusion of saline
water into mainland.
coastal aquaculture farms have not
been scientifically designed and
located, resulting in excessive
ecological damages.
no proper peripheral drainage has
been provided around the
aquaculture farms.
the saline water intake and
effluent discharge points from
aquaculture farms are located in
close vicinity, resulting in
contamination of feed water to the
aquaculture units threatening their
productivity.
three types of saline water supply
systems are in vogue for the
aquaculture farming, viz.
- direct pumping from the sea,
creek, and estuary
- direct pumping from deep sea
with jetties
- using high tides of sea for
carrying saline water through
excavated canals.
these activities for feed water
supply to the aquaculture ponds
have resulted in:
- loss of fish catch (except in
the case of feed water supply
through sea water canal system)
- loss due to damage of fishing
nets.
- degradation of fragile coastal
land.
large commercial aquaculture farms
have installed fencing in and
around the farms resulting in
blockage of free access for the
fisherman to the sea shore.
the wastewater discharge from the
aquaculture farms released into the
creeks is not properly flushed out
of the creek during low tides
thereby leads in the accumulation
of pollutants in the creek,
affecting the quality of intake
 water to aquaculture farm with
concommittant loss in productivity,
and damage to creek ecosystem.
disappearance of the native fish
species due to increase in salinity
of the creek water has been
observed by the team, and reported
by the fishermen. increase in
salinity has also reduced the
ingress of shrimp seedlings in the
creek.
indiscriminate catch of natural
shrimp seedlings from the coastal
waters, creeks, and estuaries has
resulted in reduction of their
availability, which in turn has
forced the commercial aquaculture
farmers to import the seeds.
unscientific management practices
adopted by the commercial
aquaculture farmers, and improper
design of aquaculture farms
including inadequate drainage
systems have resulted in skin, eye,
and water borne diseases in the
contiguous population.
commercial aquaculture farm owners
have not contributed to any social
infrastructure facilities for the
villagers.
employment avenues of the
contiguous population have
considerably reduced due to the
commercial aquaculture farming. the
unemployed villagers are seeking
employment in nearby towns and
cities.
owners of the commercial
aquaculture farms are using various
means to encroach upon the
government lands and also forcing
the agricultural land owners/salt
making villagers to sell their
lands. in addition, the fishermen
are also being forced to migrate to
other coastal areas."
regarding the socio-economic status of the ecologically
fragile coastal areas in the states of andhra pradesh and
tamil nadu, the report states as under:-
"during the inspection of the
aquaculture units located on the
 ecologically fragile coastal areas
of ap and tn, the inspection team
collected data and information, and
discussed the issues related to
socio-economic status of the
affected people with the farmers,
fishermen, gnash, and government
officials.
the basic socio-economic issues are
presented in table 4.1 which also
lists the parametric values in the
assessment of the damage caused by
the aquaculture units located in
the ecologically fragile coastal
areas. tables 4.2 and 4.3 present
the socio-economic assessment or
aquaculture in the ecologically
fragile coastal area of the states
of ap and tn.
tables 4.2 and 4.3 bring forth that
the damage caused to ecology and
economics by the aquaculture
farming is higher than the earnings
from the sale of coastal
aquaculture produce."
the neeri has, thus, given a positive finding that the
damage caused to ecology and economics by the acquaculture
farming is higher than the earnings from the sale of coastal
acquaculture produce. the finding is based on the assessment
keeping in view fourteen parameters listed in tables 4.2 &
4.3 regarding the states of andhra pradesh and tamil nadu
respectively. the parameters taken into consideration are
<??> equivalent wages for the farmers to be earned,
equivalent amount of agricultural produce <??> loss due to
cutting to casuarina in terms of fuel, loss in terms of
grazing grounds, loss involving <??> loss caused by cyclones
due to cutting of <??> in a forests, loss due to
desertification of land, loss in terms of potable water,
total loss <??> destruction, loss in rising income, loss due
to damage of fishing nets and man-days loss due to <??>
approachability to sea-coast. these losses are computed in
money are are then compared with the total earnings from the
sale of coastal acquaculture produce. in the basis of the
assessment of socio-economic status of acquaculture in a
systematic manner the neeri has reached the conclusion that
the damage caused to ecology and economics by the
acquaculture farming is higher than the earnings from the
sale of coastal aquaculture produce.
paras 6.1, 6.2 and 6.3 of the report clearly show the
environmental degradation caused by the shrimp culture
farming by its adverse impact on surface water,
contamination of soil and ground water and destruction of
mangrove vegetation. the said paragraphs are reproduced
hereunder:
"6.1 impact on surface waters
mangrove vegetation is
important in protecting marine and
terrestrial ecosystem. this
vegetation is also important as it
removes the pollutants like carbon
nitrogen, phosphate and other
nutrients, as also certain toxic
compounds. the importance of
mangrove plants especially
vettivera zaizonoids is known is
reduction the impact of pollution
due to discharge of aquaculture
pond effluents, and the cavery
delta farmers are now propogating
the cultivation or this species in
estuaries. mangrove vegetation also
acts as a barrier of floods, an
provides spawning grounds and
nesting places for fishes; it also
supports avian fauna (birds) thus
maintaining the nature ecosystem.
the observations on the water
quality in the aquaculture ponds
show that the pond water harbors a
dense algal bloom compared to the
water in estuaries, creeks or sea
indicating eutrophic nature of pond
effluent. when water in large
volumes, from the ponds is
discharged during flusing of ponds,
in a creek or estuary, the
pollutants remain stagnated in the
estuary or near-sea coast due to
the typical tidal activity in
creeks. as a result, the raw water
source to the ponds gets
contaminated in course of time. the
wastewater discharge from the ponds
warrant proper treatment before
discharge. uncontrolled discharge
of wastewater triggers a series of
deleterious impacts, e.g.
- with the increase in
eutrophication levels, there is a
shifiting in dominance of
phytoplankton flora in pond
effluent from diatoms to blue-green
algae. decomposition of dead blue-
green algae may lead to the
generation of toxic substances, eg.
ammonia, hydrogen sulphide etc.
further, some of the blue-greens
also excrete biotoxins in large
quantities which are toxic to
aquatic animals, <??> prawns in
ponds or fishes in estuaries or
coastal waters. large amount of
blue-green algae was recorded by
the inspection team in sirkali area
(eg. s&s industries & enterprises
ltd; high tide sea farms) and
killai area (aqua gold shrimp farm;
mrvaqua farm; mohi aqua farm). the
presence of oscillatoria,
microcystis and some other
filamentous blue-green algae is
undesirable in the pond effluent as
they chock the gills of fishes.
- the suspended solids released
from the ponds are laden with
unconsumed food and other organic
contaminants. accumulation of these
organics in the intake water
creates problems in the intake
water quality when the intake and
discharge points are in close
proximity.
6.2 contamination of soil and
ground water
the shrimp farms are
constructed well above the ground
levels. seepage of pond effluent to
the surrounding fields was noted by
the inspection team in a number on
farms. seepage of pond effluent
<??> the soil quality in the
adjoining aquacultural fields. it
has also contaminated potable water
in surrounding villages.
deterioration of ground water
quality in villages that over one
km away from the pond sites was not
noticed. this observation is based
on analysis of bore well water at
three sites by the inspection team.
this observation justified the
locational constraints on
aquaculture farms in coastal areas.
 6.3 destruction of mangrove
vegetation
the inspection team noticed
destruction of mangrove vegetation
at most of the prawn farming sites
for the development of shrimp
farms.
significant destruction of
mangrove forest was observed hear
the aqua gold shrimp farm at
village vellar in killai taluk of
south arcot district similarly on
pichavarum estuary in village <??>
in killai taluk of south arcot
district of tn, the shrimp farms
are constructed by clearing
mangrove vegetation. mangrove
vegetation in kuchipalam village is
also facing threat due to the
expansion of prawn farming
activity.
the final conclusions and recommendations are in para 5
of the neri report which is as under:-
"8.0 conclusions and
recommendations on the attenuation
of the impact of aquaculture
farming on ecologically fragile
ares in states of ap, tn, and union
territory of pondicherry.
socio-economic assessment of
aquaculture in the ecologically
fragile areas in the states or ap
and tn reveals that the cost of
ecological and social damage far
exceed the benefits that accrue out
of the coastal aquaculture
activities.
the mef's norms for location
of aquaculture and hatcheries have
been violated in the states of ap,
in, and union territory or
pondicherry.
the current practice of
installation of coastal aquaculture
farms within 500 m htl violates the
fundamental rights and livelihood
or people in the states ap and tn,
and the union territory of
pondicherry.
the current practice of
installation of coastal aquaculture
farms within 500m htl violate the
fundamental rights and livelihood
of people in the states ap and tn,
and the union territory of
pondicherry.
the state of ap has adopted
twenty point guidelines as ad hoc
measures for management of
aquaculture in the district of
nellore. these guidelines have not
been made mandatory in the state of
ap as a whole. also, these
guidelines do not address all
socio-economic, and ecological
aspects of coastal habitats.
the state government of tn has
enacted a bill of provide for the
regulation of coastal aquaculture
on april 10, 1995. this bill is not
in consonance with the mef's
notification dated 19, 1991 as it
allows the construction of
aquaculture units within 500m of
htl of the sea.
the cost of eco-restoration of
the coastal fragile area must be
borne by the individual
entrepreneur of the commercial
aquaculture farms in keeping with
the polluter-pays principle.
no commercial coastal
aquaculture activity should be
undertaken even beyond 500m htl
unless a comprehensive and
scientific environmental impact
asessment (eia) study has been
conducted by the entrepreneur, and
the environment management plan
(emp) approved by the respective
state department of environment,
pollution control board, shore
development authority, and also by
the ministry of environment and
forests.
agricultural lands are being
converted into commercial
aquaculture farms, which causes
unemployment to the landless
labourers and also in loss of
cultivable land.
commercial aquaculture farms
are being installed near the
cultivated lands and the salt water
from the farms damages the
productivity of the adjoining
lands.
groundwater also gets
contaminated due to seepage of
impounded water from the
aquaculture ponds.
desertification of cultivable
land is on the increase due to
salinity intrusion.
due to commercial aquaculture
farms, there is a loss of
- mangrove ecosystems
- causarina plantations
- grazing grounds for
cattle
- potable water to
contiguous
population
- fish catch
- fishing nets
- agricultural produce
- manpower loss due to non-
approachability of
fishermen to sea shore
directly.
there is a perceptible
increase in the diseases of skin
and eye, and water borne diseases
in the contaguous population.
the designs of the
acquaculture farms are inadequate.
no provision has been made for
wastewater treatment facility
enabling recycling and re-use of
wastewater.
prohibition on conversion of
agricultural lands and salt farms
into commercial aquaculture farms
must be enforced with immediate
effect.
no groundwater withdrawal must
be allowed for aquaculture
purposes.
free access through
aquaculture unit to the sea coast
must be provided to the traditional
fishermen.
no aquaculture farm based on
 brackish water should be installed
on inland brackish water bodies.
wild seed collection from
creek and sea must be prohibited.
seed must be procured from
hatcheries. if seed collection is
noticed it must immediately be
seized and dumped back into the
creek.
a eco-restoration fund must be
created by collecting the
stipulated fees from the owners of
acquaculture farms. in addition,
one per cent of total export
earnings per annum must also be
collected from commercial
aquaculture farm owners and used
for rejuvenation of coastal eco-
system with special reference to
plantation of mangroves and common
eco-sensitive zones. the wastewater
treatment system with reuse and
recycle must be installed by all
units. the smaller units can form a
co-operative and treat their water
through common effluent treatment
plant. the aquaculture units must
be closed down if the wastewater
treatment system is not functioning
to its design efficiency.
the second neeri report dated july 10, 1995 states that
a 19 member team of scientists lead by dr. a.s. ball and dr.
s.n. kaul inspected the shrimp farms situated on the
ecologically fragile coastal areas in the states of west
bengal, orrisa, kerala, karnataka, goa, maharashtra and
gujarat during may 20 and june 10, 1995. the summary of
salient comments in the report regarding acqua-farming in
the state of west bengal is as under:-
- organic pollution in creeks
and estuaries with respect to bod
deterioration
- microbiological of water
quality
- accumulation of organic carbon
and heavy metals in the sediments
of shrimp farms
- shannon weaver index values
less than 3 indicate organic
contamination
- borewell water characteristics
near m/s index port ltd., sarberia,
 basanti, north 24-paraganas, show
intrusion of salinity in drinking
water source
- conversion of land, and
traditional fish farm at m/s index
port ltd., north 24-paraganas
- conversion of land,
traditional fish farm, and mangrove
plantation at m/s sundarban
aquatics, south 24-paraganas
- violation of crz regulations
regarding high tide line (hil) has
taken place at m/s sundarban
aquactics, south 24-paraganas. in
addition, violations of crz for
setting up the aquafarm on creeks
have taken place at the following
places:
- m/s index port ltd., north 24-
paraganas
- m/s sundarban aquatics, south
24-paraganas
- all shrimp farms developed by
bwfd at ramnagar, midnapore."
the comments regarding the acqua-farming in the state
of orissa by the neeri team are as under:-
"* organic pollution in crecks
and estuaries with respect to bod
* deterioration of
microbiological water quality
* accumulation of organic carbon
and heavy metals in the sediments
of shrimp farms
* shannon weaver index values
less than 3 indicate organic
contamination
* characteristics of borewell
water samples near m/s sundeep
aquatics, district bhadrak and m/s
suryo udyog pvt. ltd., district
balasore, show intrusion of
salinity into drinking water
* conversion of cultivable land
for the establishment of
aquafarms/hatcheries in all
districts
* violation of crz regulations
by all aquafarms on creeks in the
districts of balasore and bhadrak.
hatcheries have been
constructed/under construction
 within 200m of high tide line (hil)
in contravance of crz regulations."
the status of acqua-farming in the state of kerala as
indicated in the neeri report is as under:-
"the comments on aquafarming in the
state of kerala are presented in
the footnotes of tables 2.2.1.7.
summary of the salient comments is
given hereunder:
* organic pollution in river,
creeks and estuaries
* deterioration of
microbiological water quality
* accumulation of organic carbon
and heavy metals in the sediments
of shrimp farms
* shanon weaver index valued
less than 3 indicate organic
contamination
* well water characteristics in
the vicinity of m/s agalapuzha
aquafarm, kozhikode show the
intrusion of salinity in drinking
water source
* conversion of land, and
traditional fish farm by m/s vasu
aquafarms at kozhikode
* conversion of land,
traditional fish farm, and mangrove
plantation by m/s west coast
aquafarms irinavu, kannur
* violation of crz regulations
regarding the location of aquafarms
on creeks has taken place at the
following sites.
- m/s consolidated aquafarm,
poyya, trissur
- m/s jaladhi aquafarm, cherchi
- m/s keetodiyal aquafarm,
arookutty alleppey
- m/s mejovi fisheries, irinavu,
kannur".
the report further indicates the status of acqua-
culture in the state of karnataka as under:-
"organic pollution in river,
creeks, and estuaries
shanon weaver index values less
than 3 indicate organic
contamination
well water charactristics in
vicinity of m/s raja ram bhat
 aquafarm, hanmav, kumta show the
intrusion of salinity in drinking
water source
conversion of agricultural land
into shrimp farms was observed at
- m/s popular aquafarm, tallur,
kundapur
- m/s raja ram bhat aquafarm,
hanmav, kumta
- m/s shri arya durga aquafarm,
karwar
destruction of mangrove vegetation
by m/s popular aquafarm, tallur,
kundapur was observed by the
inspection team
violation of crz regulations by
aquafarms situated on the creek of
razadi river at kundapur, hanmav
creek at kumta, and hgnashree
creeks were noted by the inspection
team."
the comments of the neeri report regarding acqua farms
in the state of goa are as under:-
"* organic pollution in river,
estuary and discharges from ponds
* shanon weaver index values
less than 3 indicate organic
contamination
* well water characteristics in
vicinity of m/s govt. prawn farm,
choraho indicate salinity intrusion
* conversion of agricultural
land into shrimp farm was observed
by the inspection team at m/s sky
pak aquafarm ltd., paliyam, goa
* violation of crz regulations
by all the aquafarms on the creeks,
viz. masem creek at kankun, and
chahora at pernem were observed by
the inspection team.".
summary of the salient comments on acqua-culture in the
state of maharashtra is as under :-
"* organic pollution in river
estuary and discharges from ponds
* microbiological deterioration
of water quality
* accumulation of organic carbon
and heavy metals in the sediments
of shrimp farms
* shanon weaver index values
less than 3 indicate organic
 contamination
* conversion of agricultural
land into shrimp farms
* violation of crz regulations
regarding location of shrimp farm
on creeks, viz. dharamtar, satpati,
and dahanu."
the comments regarding to state of gujarat are as
under:-
"organic pollution in river,
estuary and discharges from ponds
destruction of mangrove and shrubs
in the marine zone by m/s gfcca,
onjal and m/s sea crest pvt. ltd.,
mendhar
violation of crz regulations for
setting up the shrimp farms on the
creeks, viz. kanai, ambika, and
purna."
para 3 of the neeri report dated july 10, 1995 gives in
detail the impact of acquaculture farming on ecologically
fragile coastal areas of india:-
<sls>
"3.0 observations on the impacts of
aquaculture farming on ecologically
fragile coastal areas of india
3.1 east coast
* the shrimp farms at ramnagar,
midnapur district are located right
on the creek, and therefore, are
not in consonance with the crz
regulations
* no wastewater/sediment
treatment facilities exist at any
of the aquaculture farms
* no direct withdrawal of water
from creek/estuary
* no conversion of land has
taken place except in cases of m/s
index port ltd., north 24-paraganas
and m/s sundarban aquatic farms
ltd., south 24-paraganas
* wild shrimp seedling
collection by villagers including
children is a common practice
* m/s index port ltd., north 24
paraganas has created the following
problems;
- design of aquaculture farm is
not proper, and no
wastwater/sediment treatment
facility exists in this shrimp farm
- intensive mode of operation
creates wastewater problems.
presently, there is no treatment
facility existing for reuse and
recycle of treated wastwater
- deposition of clay in the
intake water reservoir, and no
proper mechanism exists for its
disposal
- seepage from the bunds create
additional problems around the farm
- inspection team observed that
groundwater in the vicinity of this
aquaculture farm has become saline
- conversion of agricultural
land, and traditional fishing farm
- barbed wire fencing along the
periphery of the farm has resulted
in restriction to free access for
the farmers, fishermen and cattle
to the creek
- m/s sundarban aquatic farms
ltd., south 24-paraganas has
created the following problems ;
- conversion of agricultural
land, traditional fish farming, and
mangrove plantation
- the aquafarm is located below
ground level. therefore, it is
difficult to assess the seepages
from this farm unless peizometers
are installed around the aquafarm
- a well designed sedimentation
tank is being used as a wastewater
treatment system. however, it is
not adequate. necessary arrangement
have to be made for recycle and
reuse of wastewater
- no provision exists for
treatment of sediments
- the location of the aqua-farm
is not as per mef notification
dated february 19, 1991, keeping in
view high tike line, and minimum
distance from the creek
the important areas of
environmental concern regarding
shrimp farming in the state of
orissa are
world bank aided projects -
narendrapur, bhadrak district
world bank aided project comes
within the national park area.
therefore, it is desirable that
this project proposal must be
dropped. it was also informed to
the inspection team that two
private shrimp farms are in
operation at present near the
proposed world bank aided project
which must be closed immediately,
in view of proximaty of the
national park
- beidipur, bhadrak district
there are plans to construct large
shrimp farms. it is necessary to
mention that this area is prorusely
covered with wild sea weeds, which
has direct relationship with the
ecology of the marine biota.
keeping this aspect in view, a
detailed eia is required before
finalizing the development of
shrimp farms in the area which must
include private farms in the region
in addition, there is a salt dyke
which prevents the flow of sea
water into the agricultural lands.
it is worth mentioning that more
than 50 shrimp farms, 1 ha, each
have come up in this area. this
leads to conversion of fertile
agricultural lands into
brackishwater based shrimp farming
resulting salinity, intrusion and
desertification of land
- jagatjore - banapada,
kendrapara district
construction work of shrimp farm is
in progress. mechanised systems for
excavation, and construction are
being used. in addition,
inhabitants are prosecuted. there
is a signpost "trespassers will be
prosecuted". it was informed to the
inspection team by the nearby
villagers that this place was used
for agriculture. farmers,
fishermen, and cattle had free
access to the nearby creeks. now it
has been limited to a large extent.
in addition, the inspection team
was informed about indiscriminate
cutting of mangrove bushes around
the area. this project must be
reviewed critically keeping bhitar
kanika wild life sanctuary in view
local entrepreneurs have started
small shrimp farms of about 1 ha
each. this will cause waterlogging
problems in the area. finally, the
high tide line (htl) just touches
the saline dyke. therefore, world
bank project proposal and other
shrimp farms fall within 500 m of
htl, and do not conform to the
mef's notification dated february
19, 1991
* chilka lagoon
the silt carried by two main
rivers, viz. daya and bhargabi gets
deposited in the lagoon. there is
little exchange of water from the
sea because the mouth of the lagoon
(35 km long) has been blocked by
three factors, viz.
- silt
- improper mixing, and
- large clusters of shrimp farms
hinder the pasage of water into/out
of the lagoon
the bird sanctuary at nalaban has
also been affected by siltation and
shrimp farming activities. 35 km of
the canal mouth of the lagoon needs
immediate attention, because the
exchange of sea water into and from
the lagoon is vital from ecological
considerations. in additions
deposited silt has to be removed,
shrimp farms must be closed down
immediately to restore the chilka
lagoon, to its original ecological
condition by application of
scientific management practices
* subarnarekha mouth
a large number of shrimp farms have
come up on both sides of the lower
reaches of the subarnarekha river
to utilise the tidal brackish water
as observed by the inspection team.
it was reported to the inspection
team by local people that this has
resulted in water logging in upper
reaches of subarnarekha river
* the inspection team observed
that the shrimp farming is at least
three times more than what has been
presented by the state govt. of
orissa
* all the shrimp farms do not
observe the mef notification dated
february 19, 1991. the
creek/estuarine water based shrimp
farms are also not observing the
crz guidelines of mef
agricultural land is being
converted to shrimp farming because
of land reform act of govt. of
orrisa
* artificial creeks are being
constructed to allow high tides of
creek/estuarine water into the
large reservoir. in addition, this
factor must result in flooding of
low lying areas
* reservoirs act as a setting
cum concentration basin. therefore,
it is necessary sometimes for the
shrimp farmers to dilute this water
by withdrawing groundwater,
resulting in depletion of
groundwater resources in the nearby
villages. in addition, groundwater
has become saline. this is
confirmed by the situation in
adhuan village in bhadrak district
* the shrimp farming has
resulted in several social problems
viz.
- denial of free access to
fishermen
- denial of job opportunities
- conversion of agricultural
land to shrimp farming
- social displacement
- salination of groundwater
- reduction in grazing ground of
cattle, and free access to
creek/estuarine water
* wild shrimp seedling
collection is still in practice.
this will have detrimental effect
on the ecology of the sea, creek,
and estuarine waterbodies
* direct pumping from the
creel/estuarine water system is
being practiced. this results in
reduction of fish catch and most of
stopped immediately
* no shrimp farm had any type of
wastewater and sediment treatment
systems including hatcheries
* all hatcheries are located
within 200 m of the htl in
contravance of the mef's
notification dated february 19,
1991. it is necessary to stop the
commissioning of all new hatcheries
which are not being constructed as
per crz regulations
* intake points and wastewater
discharge channels of the prawn
farms are nearby. this is not a
scientific water management of
shrimp farms
* it has been observed by the
inspection team tat some shrimp
farms have barbed wires along the
periphery of project site, e.g.
- m/s deep sun culture pvt. ltd.
- m/s surya udyog pvt. ltd.
- m/s manas prawn farm
therefore, there is no tree
access to creek and estuarine water
for the fishermen and cattle.
3.2 west coast
* the shrimp farming activity in
the west coast is mostly confined
to the traditional extensive type
of farming. limited number of
commercial shrimp farms having
areas more than 5 ha, working on
the semi-intensive type have been
installed in the coastal areas
since last 3 years.
* though in limited numbers,
prawn farms working on the semi-
intensive type specifically in the
states of karnataka, maharashtra,
and gujarat are situated within 500
m of high tide line of the sea,
which is not in consonance with
mef's notification dated february
19,1991
* incidence of conversion of
agricultural land into coastal
aquaculture units, which infringes
the fundamental right to lite and
livelihood, could be noticed in
states of karnataka (kumta taluk),
maharashtra (ratnagiri district,
and palghar taluk) and in gujarat
(valsad district)
* in states situated on the west
coast of india brackish water
aquaculture units have been mainly
installed along the estuaries and
river banks, where impounded
backwater is being used for shrimp
farming. such practices of
extensive type of farming may not
have significant adverse impact on
environment due to the fact that
limited quantities of brackish
water are required for recharging
these ponds, and the wasterwater
generation is negligible. however,
this practice of utilisation of
backwaters will prove to be unsound
if carried out for large scale
farms using semi-intensive type of
farming
* villages situated along the
sea coast, and backwater zones,
specifically at gunda, kumta and
karwar (karnataka), palghar and
dahanu (maharashtra), and valsad
(gujarat) are under threat due to
conversion of land into aquaculture
farms
* in the state of karnataka, the
inspecting team observed that m/s
murudeshwar food and export ltd.
prawn aquafarm units are located
within 100 m of htl
the intake and discharge points of
m/s samudra aquafarms and m/s
skyline biotechnologies pvt. ltd.,
kagil, kumta are very close to each
other which may create problems or
contamination in the ponds. the
prawns grown in these farms were
reported to be affected by vital
infection. disposal of sediments
from the ponds was also observed to
be carried out on the side of the
river
* it was also observed by the
inspecting team in the state of
karnataka that aquafarm of m/s
rajaram bhat pvt. ltd. at monnavar
in kumta taluk has been installed
on the periphery of the village.
the bunds constructed for making
the ponds have obstructed the free
flow of storm water, and domestic
wastewater from the village to sea
and this has created health hazards
for the villagers. intrusion of
saline water in the soil was also
observed, and reports on damage o
coconut plantations in nearby areas
were also received. contamination
of drinking water sources due to
saline water intrusion was observed
* in the state of karnataka, m/s
agnasana aquafarm pvt. ltd. has
come up adjacent to a school in
village gunda, and the constructed
bund of the pond touches the
compound of the school. seepage of
saline water from the bund and
subsequent damage to the foundation
of the school building, and damage
to coconut plants in nearby areas
was observed. such practices of
allowing the ponds to come up near
residential and public utility
places must be stopped immediately
* coastal aquaculture has
resulted in loss of mangroves
ecosystems to a limited extent of
the west coast. however,
significant destruction or
mangroves could be noticed in the
coastal areas of the districts on
karwar a kumta (karnataka), palghar
& shrivardhan (maharashtra), and
valsad (gujarat). since the
mangrove ecosystems provide natural
habitat for spawning of marine
biota, the practice of
indiscriminate destruction of
mangrove ecosystem due to
installation or shrimp farms must
be stopped
* no proper peripheral drainage
has been provided around the
aquaculture ponds following semi-
intensive mode of farming in the
states of kerala, karnataka &
maharashtra, and the wastewater
from the ponds was observed to be
discharged into the receiving
bodies without treatment
* the brackish water intake and
effluent discharge ponds for the
ponds are located in close vicinity
resulting in contamination of feed
water of the aquaculture units. the
situation is predominant at kumta
(karnataka), palghar (maharashtra),
and valsad (gujarat) where a large
number of medium and large
aquafarms have been installed
* since large number of medium
and big farms have been installed
on the coastal areas at places
mentioned above, the wastewater
discharged into creeks and back
water zones is not properly flushed
out during low tide, thereby,
affecting the intakes water quality
of aquaculture farms.
* the situation in the state of
goa has not reached such an
alarming situation as yet due to
limited number of farms, and
abundant quantities of backwater
available in the riverine zones of
zuari and mandavi rivers. however,
future expansion of the shrimp
farming practices warrant careful
control, in view of tourism
potential of the state
* shrimp farming activity in the
state of gujarat is presently
confined to the coastal areas of
valsad, bharuch, and surat. two
large commercial shrimp farms are
proposed to be installed in the
jamnagar district where salt farms
are being operated currently.
sanctions for such installations
warrant careful consideration to
avoid damages to the highly
 ecosensitive coral reef zones near
this coast.
the conclusions and recommendations as given in para of
the neeri report are as under:-
"7.0 conclusions and
recommendations on the attenuation
of adverse impacts of aquaculture
farming on ecologically fragile
coastal areas
7.1 east coast
* the shrimp farming activity in
east coast is mostly confined to
the traditional and extensive mode.
however, a large number or
commercial shrimp farms have
started functioning on modified
extensive, semi-intensive; and
intensive modes since last three
years
* the large scale shrimp farms
and hatcheries have violated crz
notification of mef dated february
19, 1991 in the states of west
bengal and orissa
* incidence of conversion of
agricultural land into coastal
aquaculture units which infringe
upon the fundamental rights to life
and livelihood were <??>
particularly in the state or orissa
* it is desirable to establish
aquaculture farms on modified
extensive mode. semi-intensive and
intensive mode of aquaculture must
not be adopted in the states or
west bengal and orissa
* maintenance of quality of the
feed, and stocking of healthy seed
from the government approved
hatcheries associated with
appropriate water management
practices warrants proper attention
in the prawn farming activities of
the coastal areas
* the proposed guidelines for
shrimp farming in the state of west
bengal do not address all socio-
economic, and ecological status or
coastal habitats.
* the state of orissa has not
formulated any guidelines related
to aquaculture practices
* the cost of eco-restoration of
the coastal fragile area must be
borne by the individual
entrepreneurs of the commercial
farms in keeping with the polluter
pays principle with specific
reference to.
- sunderban mangrove/littoral
forest, west bengal
- chilka lagoon, orissa
- bhitar kanika wild life
sanctuary, orissa
- national park, orissa
- subarnarekha mouth, orissa
no commercial coastal
aquaculture activity should be
undertaken even beyond 500 m htl
unless a comprehensive and
scientific environmental impact
assessment (eia) study has been
made by the entrepreneur, and the
environment management plan (emp)
approved by the respective state
department of environment,
pollution control board, and also
by the mef
* agricultural lands are being
converted into commercial
aquaculture, which causes
unemployment to the landless
labourers and also in loss of
cultivable land
* groundwater also gets
contaminated due to seepage of
impounded water from aquaculture
farms
due to commercial aquaculture
farms, there is a loss of
- mangrove ecosystem
- grazing grounds for cattle
- potable water to contiguous
population
- fish catch
- agricultural produce
- economic loss due to non-
approachability of fishermen to
creek, estuary and sea directly
* the designs of the aquaculture
farms are inadequate. no provision
has been made for wastewater
treatment facility enabling
recycling and re-use of wastewater
in shrimp farms and hatcheries to
minimise water exchange. in
addition, there is a necessity to
treat deposited sediments from the
shrimp farms. sediments can be
converted into manure for land
application after proper treatment
* prohibition on conversion of
agricultural land must be enforced
with immediate effect
* wild seed collection from
creek, estuary, and sea must be
prohibited. seed must be procurred
from hatcheries
* an eco-restoration fund must
be created by collecting the
stipulated fees from the owners of
aquaculture farms. in addition, one
percent of total export earnings
per annum must also be collected
from commercial aquaculture farm
owners, and used for rejuvenation
of coastal eco-system. the
wastewater treatment system
including sediment control with
reuse and recycle must be installed
by all unites. the smaller units
can form a co-operative, and treat
water through common effluent
treatment plant. the aquaculture
units must be closed down if the
wastewater treatment system
including sediment control is not
functioning to its design
efficiency
* a strict vigilance by the
state departments of fisheries and
pollution control board is required
to keep a check on pollution
abatement measures, it may be
mentioned that even a small, one
<??> shrimp farm can be<??> to
i.e. modified-extensive; semi-
intensive, and intensive.
therefore, strong control measures
for production and pollution
(wastewater and sediments) are
essential
* water (from sources such as
creek, estuary or sea) cess must be
charged from the shrimp farm owners
* cultivable lands must not be
converted for aquaculture. there is
a perceptible difference between
cultivable and not cultivated land.
thus, even if aquaculturist buys
agricultural land and keep them
fallow for say 2 or 3 years that
does not mean that the land has
become non-cultivable. currently
almost all the farms that exist are
cultivable lands except those in
midnapur district (7 aquafarms in
wastelands). even these farmers who
do not sell their land to prawn
farm owners, are affected due to
lack of drainage from paddy fields
which in turn cause flooding of the
crop during rainy season
* the location of shrimp farms
in midnapur district on wasteland
developed by the department of
fisheries, govt. of west bengal
fulfills all scientific conditions
except ;
- crz guidelines for creeks
- wastewater & sediment
management practices, and
- mode of operation which is
mostly semi-intensive and intensive
* there are two commercial
aquaculture units in the state of
west bengal, viz, m/s sunderban
aquatic farm ltd., and m/s index
port ltd., which are violating crz
regulations of mef dated february
19, 1991 as discussed hereunder.
- m/s sundarban aquatic farms
ltd.: conversion of agricultural
land & traditional fish farm, and
destruction of mangrove plantation
have taken place. in addition, this
farm falls within 500 m from htl.,
further, crz regulations for
location of aquaculture farm near
the creek have also been violated
- m/s index port ltd.;
conversion of agricultural land &
traditional fish farm have taken
place. groundwater has become
saline around the farm. shrimp
farms are not well designed
resulting in seepage. barbed wire
fencing has restricted free access
to farmers, fishermen and cattle to
the creek. in addition. crz
regulations for location of
aquaculture farm near the creek
have also been violated
no treatment facilities have
been provided by both the farms
it is necessary to review the
world bank aided projects and
commercial shrimp farms in and
around chilka lagoon, keeping in
view the mef norms dated february
19, 1991 in the state of orissa,
viz.
- narendrapur project must be
abandoned as it is within the
national park. also the existing
commercial farms in operation must
be closed down
- bideipur project requires eia
studies. several farms have come up
on the other side of the saline
dyke which must also be included
for evaluation in the eia studies
- jagatjaore-sanaspada project
is within 500 m htl. farmers,
fishermen and cattle earlier had
free access to the nearby creek,
which has been limited to a great
extent due to the commercial shrimp
farming activity. also
indiscriminate cutting of mangrove
bushes has been reported. this
project must, therefore, be
reviewed critically keeping bhitar
kanika wild life sanctuary in view
* the commercial shrimp farms in
chilka lagoon must be abandoned
keeping in view the ecological
condition of the lagoon and also
the location of national bird
sanctuary.
7.2 west coast
* mef's norms for location of
aquaculture farms and hatcheries
have been violated at many places
in the states situated on west
coast of india
the current practice of
installation of coastal aquaculture
farms within 500 m htl violates the
fundamental right and livelihood of
people in the coastal states
* the states of kerala,
karnataka, maharashtra and gujarat
have neither formulated nor adopted
any guidelines in consonance with
crz-notification, ministry of
environment & forests (mef), govt.
of india for scientific control and
management of the shrimp farms in
the respective states. these states
must formulate and adopt
legislative acts for proper
management and regulation of
existing shrimp farms in the
respective states
* the state government of goa
has enacted a bill dated november
17, 1994 in order to regulate,
promote and manage the shrimp farms
in this state, in a scientific
manner. however, this bill is <??>
in consonance with the mef
notification dated february 19,
1991 as it allows the construction
of aquaculture units within 500 m
of htl of the sea. the <??> is
limited to the guidelines
pertaining to the allotment of
lands for the entrepreneurs
* the cost of eco-restoration of
the coastal fragile area must be
borne by the individual
entrepreneur of the commercial
aquaculture farms in keeping with
the polluter pays principle
* no commercial coastal
aquaculture activity should be
undertaken even beyond 500 m htl
unless a comprehensive and
scientific environmental impact
assessment (eia) study has <??>
conducted by the entrepreneur, and
the environment management plan
(emp) approved by the respective
state department of environments
pollution control board, shore
development authority, and also by
the ministry of environment and
forests
* commercial aquaculture farms
are planned to be installed near
the cultivated lands in all the
states of west coast. salt water
from the farms results in damage to
the productivity of the adjoining
lands
* groundwater also gets
contaminated due to seepage of
impunded water from the aquaculture
ponds
* desertification of cultivable
land can result in increased saline
intrusion on west coast
due to commercial aquaculture
farms, there is a loss of
- mangrove ecosystems
- casurina plantations
- grazing grounds for cattle
- potable water to contiguous
population
- fish catch
- fishing nets
- agricultural produce
- economic loss due to non-
approachability of fishermen to sea
shore directly
* the designs of the aquaculture
farms are inadequate. no provision
has been made for wastewater
treatment facility enabling
recycling and re-use of wastewater
* prohibition on conversion of
agricultural lands and salt farms
into commercial aquaculture farms
must be enforced with immediate
effect
* wild seed collection from
creek and sea must be prohibited.
seed must be procured from
hatcheries
* an eco-restoration fund must
be created by collecting the
stipulated fees from the owners of
aquaculture farms. in addition, one
percent of total export earnings
per annum must also be collected
from commercial aquaculture farm
 owners and used for rejuvenation of
coastal eco-system with special
reference to plantation of
mangroves and common eco-sensitive
zones. the wastewater treatment
system with reuse and recycle must
be installed by all units. the
smaller units can form a co-
operative and treat their water
through common effluent treatment
plant. the aquaculture units must
be closed down in the wastewater
treatment system is not functioning
to its design efficiency
* drainage canals must be
constructed around the existing
ponds to collect seepage from the
pond which will prevent the
intrusion of saline water into the
adjoining agricultural fields &
residential areas. the design and
construction of the drainage
canal/bund must be undertaken
scientifically based on the
topographical features of the area.
this will avoid the flooding of the
area with saline water, and will
help in restoration or hygienic &
sanitary conditions in the nearby
residential areas."
the two neeri reports clearly indicate that due to
commercial acqua-culture farming there is considerable
degradation of the mangrove eco-systems, depretion of
casurina plantations, pollution of potable waters, reduction
in fish catch, and blockage of direct approach to the sea-
shore. agriculture lands and salt farms are being converted
into commercial acqua-culture farms. the ground water has go
contaminated due to seepage of impounded water from the
acqua-culture farms. highly polluted effluents are
discharged by the shrimp-farms into the sea and on the sea-
coast.
a report titled "expert committee report on impact of
shrimp farms along the coast of tamil nadu and pondicherry"
has been placed on the record, justice m. suresh, a retired
judge of the bombay high court, mr. a. sreenivasan, joint
director of fisheries (retd.), dr. a.g.k. menon, an
ichthyologist, mr. v. karuppan i.a.s. (retd.), dr. m.
arunachalam, lecturer, centre for environmental sciences,
manommaniam sundaradar university, tamil nadu and dr. k.
dakshinamoorthy, a medical surgeon constituted the "expert
committee" (suresh committee). although the investigation by
the suresh committee was done at the instance of "complaint
against shrimp industries" but keeping in view the status of
the committee members and the factual data collected and
relied upon by the committee it would be useful to examine
the same. the suresh committee visited various villages in
tamil nadu and pondicherry and gave its findings based on
the evidence collected by the committee. some of the
findings of suresh committee are as under:-
"the farmers of perunthottam told
us that they have sold nearly 140
acres of their own lands to the
bask company and 40 acres to the
bismi company. evidence was also
given to us showing in the lands
purchased by bask farms, where
three or two crops were being
cultivated. it also revealed that
the percentage of yield was as much
as <??> details regarding this are
found in annexure 15. the bismi
company has erected a pipe line
till the boundary of the farm for
draining sea water. it is yet to be
connected to the sea.
the bask company is situated
at a distance of 150 m from the
scheduled caste households. bask
aqua farm is situated within 500 m
from the sea and the distance of
bismi aqua farms is just 25 m from
the sea. during our visit, we found
bask farms engaged in construction
of prawn farms on agricultural
lands that had been purchased
(photo no. 23 & 24) .........
representative of perunthottam
village also shared before the
expert team that the yield obtained
from the fields adjacent to prawn
farms were affected. moreover the
villagers have lost their access to
potable water as the water tables
have become alkaline due to the
seepage of sea water from the prawn
farms. bask farms have been using
ground water for nearly two years
crop. the managing director
confirmed this before the expert
team."
the committee visted pichavaram vedaranyam on july
13th/15th, 1995 and observed as under:-
 "it was observed that the palmyrah
trees in this area which is the
most drought resistant tree has
dried after the onset of prawn
farms in this area. majority of the
coconut trees have dried up and few
remaining have stopped yielding
fruits.
the unanimous opinion of the
people is that most of the mangrove
species are on the decline. these
mangroves serve as a source of <??>
wood for domestic purposes, grazing
ground for animals, water way for
locals and tourists and an
important habitat for fisheries
increasingly polluted because of
the effluent discharged by the
shrimp farms. they also brought to
our notice the greater value of the
mangrove as a stabliser of the
coast and how, because of this
being disturbed by the destruction
of the palmyrah, coconut and
casuarins grooves, coastal erosion
has become common."
regarding visit to pudhupetti, the committee stated as
under:-
"we visited pudhupettai on 14th
july in order to get a first hand
knowledge about the impact of
farisa aqua farm details of which
was narrated by the pudhupettai
representative to the expert team
on 13th july at nagai. we saw the
pucca construction of the <??>
farm's jetti into the sea to enable
the pumping of the sea water. this
clearly is acting as a hindrance
for the free mobility of the
finishing community and their
access to sea and
land................all these three
farms are situated within 25 m from
the sea. further these farms are
closely situated to the dwelling
houses also. coastal enterprises is
situated at a distance of 20 m, the
farisha aqua farm at a distance of
250 m and blue base aqua farm at 20
m from the dwellings of
perumalpettai the next fishing
village from pudupettain. there is
a fourth enterprise namely abhirami
aqua farms which owns about 150
acres of wet land has not commenced
work as yet...........pipes have
been laid to discharge effluent
either to the sea, or adjoining dry
lands belonging to the village or
to the water channel used by
villages for bathing. effluent is
also being discharged close to the
dwelling houses. in particular,
"effluent is being collected right
in front of my house" said
kalvikarasi a resident of
pudupettai village who made a
representation to the expert team
on july 13th. she said that
"drinking water in the village is
now turning salty".
................the advantages of
shore seine net fishing is the
abundant catch of "anchovy" fish
which has commercially viable
market. the construction of
permanent jetties has eliminated
the `shore seine net fishing. shore
seine net fishing needs
uninterrupted coastline and it has
become an impossibility in
pudupettai. about 10 shore seine
nets are idle in the village. the
construction of pipe to discharge
effluent is a permanent one. by
construction of the permanent
jetties, the natural sand dues in
the village were destroyed. these
sand dunes are a natural cyclone
barriers. hence a threat of cyclone
barriers. hence a threat of cyclone
is imminent since these natural
cyclone barriers are destroyed.
the construction of pipelines
ending in the sea for pumping in
sea water has damaged nearly 10
nets worth rs.60,000/-. details of
nets damaged is given in annexure
19. the coastal enterprises ltd.
has encroached the burial ground of
pudupettai and blue base aqua farms
 has encroached the burial ground of
perumalpettai.
the committee visited the pullicat take area on july
18, 1995. the findings of the committee are as under:-
"ecologically the tamilnadu part of
the pulicat lake is important since
it has the only opening of the lake
into the sea thus functioning as
the migratory route of these
spawning animals like prawns, fish
and mud crabs. the mud rlats of
pulicat lake harbours a number of
winter migratory birds. e were told
that the water fowl sanctuary at
pulicat is slowly being destroyed,
.........we observed that prawn
farms are located all around the
wetland. in the northern region of
the lake prawn farms are situated
even in the lake-bed. maheshwari
export india ltd is constructing a
prawn farm across the pulicant lake
bed clearly violative of the
tamilnadu aqua culture regulation
act. we also noticed water being
pumped out from the lake into the
prawn farms.
according to dr. sanjeeva raj,
pulicat lake has two bird
sanctuaries namely yedurapattu and
nelapattu. it is estimated that
nearly 10-15 thousand of flamingoes
and other rare birds visit the
pulicat lake for four months only
for feeding all the way from rann
of kutch. other water birds like
pelicans, cormorants, egrets and
herons breed at nelapattu and feed
at this pulicat take. at
yedurapattu, painted storks,
pelicans, and open bills also feed
here. in 1993 it was estimated that
there was 10000 to 15000
flemingoes. by 1994 this has been
reduced to less than 1000. the
reason for this can be attributed
to the effluent from prawn farms
which kills the organisms on which
the flamingoes feed. the depletion
of natural feed could have caused
this reduction. ..........the
tamilnadu forest department is
establishing a third sanctuary in
the southern tip of pulicat lake.
we were told that due to the noise
of oil engines, bulldozers and
other disturbances by the prawn
farms many birds especially painted
storks have deserted this lake
dr. sanjeeva raj also states
that pulicat is ecologically very
sensitive and fragile. the east
coast is vulnerable to cyclones,
with the hundreds of prawn farms
along the coast excavating sand
along the coast line every
possibility existed for inviting
the sea to enter and destroy the
water table. further, prawn farms
destroys sand dunes and vegetations
and in times of tidal waves sea
water could enter in a big way.
further, dr. sanjeeva raj said
that pulicat lake is fairly shallow
with an average depth of about 1.5
m. it can be described as a saucer.
the pumping of water by aquafarms
up of the lake. added to this the
road, from sulurpet that has been
constructed for reaching the
shriharikotta rocket launching site
through the lake has obstructed
free flow of water. it is generally
claimed by the prawn farm owners
that the land on the eastern <??>
of the road is not the part of
pulicat lake and hence prawn farms
can be constructed. this is false
as all this land area is part of
the pulicat lake. the tragedy is
that if prawn farms are erected on
the higher side of the lake, the
effluent from the prawn farms will
flow back into the lake causing
serious damage to marine and
estuarine biota..........pasiapuram
rajiv gandhi nagar has a dalit
hamlet edamani. this hamlet had a
water tank which provided water to
the nearby 35 villages. the source
of water was the villages. the
source of water was the village
 ground water. but due to the impact
of the adjoining farm the water
became saline making it unsuitable
for consumption.
an eminent danger by the prawn
companies is to the village called
jamila badh. this village has 150
muslim families (fisher). they were
originally living in the land on
which the shriharikotta space
research station is built. these
families were relocated by the
government promising jobs and
providing free housing site near
the pulicat lake. the built their
own huts at the cost of rs.5000
each. these huts today face serious
flood threat since on both sides of
the village two prawn enterprises
have obstructed the ponneri lake
water to flow in to the sea. this
obstruction due to the construction
of prawn farms floods the village.
from 1991 till date every year
water reaches the boundary of the
village and before it could enter
inside nearly 2000 village people
manudily divert the water to the
sea. though the village people have
made representation and protested
to the owners, they use their
economic and political power to
scare the fishing people and make
them live in a permanent state of
fear, people also told us that they
areaffected by itching, scabies,
and lever which could be due to the
dischargeof effluent."
the committes' observations regurding karaikal district
pondicherry are as under:
"as quoted by the pondichery
science forum, :karaikal region has
only 20 kms of coastal stretch.
this coastal stretch is of
environmental significance as the
area and its environs have creeks
and lagoons beaches with dunes,
coasted platns, natural reeves,
flood plain and is also the tail
end of the cauvery river basin,
karaikal is considered as the
 granary of pondicherry and has main
irrigation canals like nini
kattalai pidari kattalal and
arasapuram:.
the ground water reserves of
karaikal is frightfully meagre but
for the only sweet water aquifer at
about 10 to 20 ft deep there is no
other potable aquifer. this water
source cannot be expionted
continuously since it takes time to
recharge and poses danger of sed
water intrusion. only manual hand
pumps are being used to tap this
water at present.
it is in this context karaikal
is posed with the serious danger of
loosing this sweet water aquiter as
most of the small prawn farms are
in the process of deriving water
during the high tides from the
rivers like. mullaiyar,
thirumalairayananar. arasalar
nandalar and pravidayanar and also
use ground water for shrimp
culture. this continuous withdrawal
of fresh water will alter surface
water resources. so, there is no
possibility for the recharging
mechanisms as the wet lands near
these river basnis are converted to
aquafarms and these wet lands have
lost their function of absorbing
rain water and recharging the
aquifer zones."
the conclusions reached by the suresh committee under
various headings indicating the impact of shrimp culture
farming on environment are reproduced hereunder;
"(a) effluent pollution
as shrimp culture using high
protein feeds is a highly polluting
activity. presently 78,000 tonnes
feed is used in india in shrimp
culture. this is bio-degradable, if
properly treated. it leaves behind
responded solids (organic) and the
decomposition liberates inorganic n
and p.77.5% of n and 86% of p from
the feed are worked and enter the
pond environment. 1 ton or
p.monodon production results in a
pollution load of 56.3-48.1 kg n
and 13.0-24.4 kg p. (phillips et at
1993. iclarm. conf. proc 31 1/1
198).
excess amounts of p and n are
detrimental to environment (<??>
1994 sacmonid xvii (4); 10-14).
these lead to "hyper
eutrophication" resulting in
massive algal blooms and oxygen
depletion which are harmful to
aquatic like. these blooms such as
"red tide" cause fish mortality.
the effluent quality during
harvesting the shrimp <??> is:
total nitrogen 1900-2600 ppm, total
0 48-110 ppm and organic carbon
7.3-13.7 ppm. the impact of this is
the reduced oxygen, hyper
nitrification, alteration of
community structure, sedinextation,
changes in besithic communities
etc. (phillips et al 1993).
further "self pollution"
results from feed wasted, which
becomes unmanageable (lmre csavas
1994. shrimp news international,
march-april 1994). organic wastes,
solid matter, dissolved metabolites
like ammonia, carbon-dioxide are
produced. decomposing organic
matter depletes oxygen from water.
admittedly being biodegradable the
effluents consume oxygen and so
denude the water of its oxygen.
when there is oxygen deficit, fish
avoid such low oxygen zones and
move further away to oxygen
saturated zones and when there is
oxygen depletion fish die en-masse.
fishing village near whose coast
shrimp ponds have come up - fish
have become scarce and the
artisanal fishermen have to go
further away from shore to catch
fish. population of fish and their
diversity decrease.
............with regard to farm
effluents being treated and
discharged into the sea and other
water bodies. we did not see or
hear about any such scientific
process of effluent treatment
having been set up by prawn farms.
in m/s bask farms we were shown two
partially dry sedimentation tanks.
we saw untreated effluents from m/s
amaigam shrimp farm being
discharged <??> the beach (not even
into the sea causing degradation of
the <??> shore with dark brown,
four smelling organic matter, which
is a <??> hazard. the joint
director, mplda itself has stated
that "most of the farms have not
set up effluent treatment systems.
(b) slinisation
the dominant species of shrimp
cultured is penaeus monodon the
tiger prawn and next comes the
white prawn, p. indicus. both are
marine prawns. p.monodon grows best
at salinities of 10-20 p.pt (20%)
but tolerate slightly higher or
lower salinities. p. indicus
requires higher salinity 20-30 ppt.
thus seawater is the primary medium
of growth. seawater or salinity 55-
36 ppt is taken into the ponds. the
growing period ranges from 120-150
days. sea water is periodically
replaced. sea water is periodically
replaced. sea water remaining in
the pond for a long period seeps
into neighbouring areas where
agriculture is practiced and
salinizes the soils which therefore
lose their productivity for crops
and become unfit for agriculture.
even assuring that the 500 m
zonation is enforced it will not
solve the problem of salination.
agriculture lands, inwards (towards
inland) of shrimp ponds will become
saline and the chain reaction will
continue. ............ many shrimp
industries assert that they are
taking only sea water for shrimp
culture and do not use ground
water. sea water has a salinity
around 35 ppt. it is mostly penaeus
monodon the tiger shrimp. this
needs a salinity in the range of
15-20 ppt for optimum growth. 30
the shrimp producer have
necessarily to dilute it to bring
down the salinity by adding fresh
water. let along ground water, we
have even seen river water being
pumped near poompuhar into to
shrimp ponds. ..............
salinization is not only possible
but has actually happened all over
the world. the bhagwathi institute
of environment and development,
analysed numerous samples of water
adjacent to shrimp farms in sirkali
taluk, tn, and found that in most
of them chlorides exceeded the
permitted limits even by over 100
times for eg.15265 mg/1 in drinking
water source near suryakumar shrimp
co. mahendrapalle. in kurru
village, nellore district, drinking
water became saline after four
shrimp farms were established and
500 people of this village had no
drinking water (vandana shiva 1994,
"social and environmental impact or
aquaculture). dr. alagarswami,
director ciba identifies
salinization of drinking water,
wells, dwelling units adjoining
agriculture lands and aquifers as
critical issues in shrimp culture.
(national workshop on transfer of
technology for sustainable shrimp
farming, ms. swaminathan foundation
madras, january 9-10, 1995) dr. v.
gopalakrishnan, former fao export
says "salt water seepage problem
appears to be genuine and such area
should be avoided for establishing
new shrimp farms" (fish &
fisheries, newsletter no 4 january
1995). dr. sanjeevaraj noted that
in political lake, saltwater from
prawn ponds was known to be seeping
into drinking water tables
(copdanet newsletter winter 1994).
........... we have noted the
salinization of drinking water in
pudukuppam, naicker kuppam,
poompuhar, perunthottam, pudupet,
etc in sirkali taluk caused by
large shrimp units and also in a
very acute manner in
pattinamarudur, iluticorin, voc
district which is sandwitched
between two large farms viz. dtc
and mac aqua farms ltd.
(c) feed and wastes
in a moderate 3 t/ha yield of
shrimp, 4-6 t/ha feed is applied
while for a yield of 5t/ha it is
15t/ha. the magnitude of
putreseible organic matter from
these wastes is enormous. hence,
the practice of discharging such
effluents into common water bodies
needs to be strongly discouraged
because of the strongly polluting
effect (mackintosh. d.j. infofish.
international 6/92. 38/41). feed
wastes are more toxic than sewage
and this is a sufficient ground for
banning industrial shrimp culture.
..............the team found that
amalgam marine harvests, was
blatantly discharging the effluents
into the foreshore narrow sandy
breach at pudukuppam. this has
spoiled the aesthetic appearance of
the beach. the area is dark brown
in colour and foul smelling. this
will pose a serious hazard to
public health. the wastes also
enter "uppanar" stream hardly 5 m
away from discharge point. this is
illegal and affects the health of
villages. settleable solids silt up
the ponds and canals. over
accumulation of detritus leads to
profusion of protozoa, and
ciliates, which cover the body of
pisa, respiratory diseases, loss of
appetite, black gill disease, shell
disease, foul smell of internal
parts, tail rot etc are caused on
such unhealthy pond conditions. the
quality of effluents discharged
into the environment are so poor
that biological methods will not be
sufficient to treat them. most of
the environmental troubles are
caused by the industrial shrimp.
the coastal zone used for culturing
aquatic organisms is only a narrow
strip on the continental shell and
on the low lying flatlands. hence
the very fragile nature of the
coatal ecosystem is getting
destroyed.
(d) fertilizers and therapeutants
large quantities of feeds are
being used and fertilizer
applications are generally minimal.
lime is regularly used but
continued use of lime impoverished
the soil. it also hardens the soil.
however, it is the use of
therapeutants that is highly
destructive of the environment. a
very incisive account of the use of
drugs in aquaculture is available
from p. de. kinklein and c. michael
(infofisl international 4/92; 45-46
1992) and an exhaustive report is
provided by fred p. meyer, an
authority on the subject. (review
in aquaculture sciences ve 1 (4):
693-710 1989). however the use of
drugs has only aggravated the
damage to environment. sulpha
drugs, tetracyclines, quinolones,
nitrofurans, macrolids (for <??>
erythromycin). chloramphenicol, and
dozens of similar drugs are in use.
organophosphoruscompounds like
dichlorvas are also used. formalin,
malachite green copper sulphate,
quaternary ammonium compounds,
iodophores, chloramine -i etc., are
used as sanitizers.
viruses cannot be treated by
any of the drugs. renibacterium sp
is also resistant to drugs.
chemotherapy leads to transit of
drugs and their long persistence.
rebase of drugs or their
metabolites into the environment
affects the non-target organisms.
uses of steroids (di-dehyl in ponds
has carcinogenic effect on humans.
use of chloramphenicol has
unpredictable risks for human
beings. effluent treatment and
self-recovery are hampered by the
drugs by suppressing saprophytic
bacteria involved in purification
processes. softs accumulate drug
residues.
(e) loss of mangroves and
biodiversity
we observed that removal or
destruction of these important
mangrove habitats for establishing
shrimp farms is becoming
increasingly common along the coast
of tamilnadu. from the photographs
(no. 40-45 showing the destruction
of mangroves-bunds are already
built), it is evident that there
are several shrimp farms on the
banks of pitchavaram mangrove
forests a valuable habitat. for the
farms, water intake from the
habitat will lead to virtual
dryness of the habitat and the loss
of biodiversity in this valuable
reaim. it is evident that the
consequences are felt by the
existing farms (palmyarh and
coconut trees in nearby farms are
withering - photograph no.46 & 47).
the destruction of the mangroves
(photo no. 40-42) for shrimp farm
will be a major cause for the loss
of habitat diversity along the
coastline of tamilnadu. we are
going to lose a valuable gene pool
and thus conservation of mangroves
genetic resources from the
activities of shrimp industry is a
matter of primary urgency.
(f) loss of biodiversity in
cauvery flood plain and delta
the stagnation of water in
this lower reaches is due to the
illegal damming at several places
along the course and the
obstruction of feeder canals and
distributors to the main river.
once considered a best estuary and
the delta of cauvery are now
vanished (photo no.48 showing the
ill fated cauvery). also in the
lower reaches in nagai district,
tamilnadu, low land drains
regulator has been used for their
effluent release (photo no.49)
showing the block and the p.w.d.
feeder canals are either blocked by
the farm owners or using as
drainage for effluent release by
amalgam marine harvests ltd at
pudhukkuppam (photo no.50) from the
farms. these canals and drains once
used as a freshwater resource for
bathing and rechargers for the
wells for the fisher folk in
several villages now become saline
because of the cessation of flow
(example : pudukuppam village of
sirkali faluk district; pudupettal
village tharangampadi faluk.
............seed collection of
peneaus monodon (tiger prawn) by
children is a regular practice in
these canals now. during their
collection of seeds the children
picked only the tiger prawn seeds
and threw away all other shrimp and
fish seeds, thus depleting the
estuarine and coastal fishery
resources. one child get paise 0.10
for the tiger prawn seed and one
earns about rupees one hundred
(rs.100 per day and 40-50 children
are engaged in seed collection).
this involves child labour and
depletion of fishery resources and
the loss of biodiversity in coastal
and beltaic regions of cauvery.
nursery grounds for shell and fin
fishes are lost in this ancient
river delta.
(g) threatened wetlands of
national and international
importance
the marshy swamps of
vedaranyam are now as threatened
habitats with the formation of
shrimp culture all along the
brackish water zones and in the
marshy swamps ............another
wet land of national importance,
which is being threatened is
pulicat lake. report a (1992) by
the ministry of environment and
forests, government of india
clearly stressed the need of
conserving these wetlands of
national importance. ..........in
the government of india report
pulicat lake has been identified as
an important lagoon (p.8 of the
report). this fragile ecosystem has
been under great threat by the
industrial shrimp farming. in the
main brackish water area,
construction of bunds is going on
(photo no.55 to 66). from the
photographs it is evident that the
marshy lands with its typical
marshy vegetation is the only area
left and almost all the marshy
areas are being lost because of the
upcoming shrimp culture ponds.
these areas of marshy vegetation
act as spawning/nursery grounds for
a variety of estuarine/marine
invertebrates, and fishes. these
areas also provide wildlife
habitats to several migrant birds.
(h) impact on agriculture
dr. alagarswami, director ciba
identifies "indiscriminate
conversion of agricultural lands
into shrimp culture" as a critical
issue. most shrimp farmers in
coastal areas have converted
agricultural lands is the fact
ponds. more relevant is the fact
that shrimp industry causes
salinisation of crop lands,
seawater (salinity around 35 ppt
i.e.35%) is pumped into the shrimp
ponds. the growing period is from
120-150 days. this long detention
of saline water in the shrimp ponds
seeps into the adjacent crop lands
and salinizes them resulting in
reduction or productivity of even
barrenness. then this
"unproductive" land (so declared by
the shrimp industries) is converted
into shrimp ponds
 we are concerned that
conversion of paddy fields to
shrimp ponds is already adversely
affecting local rice production. in
all the places we visited in num
district pattinamarudur of
luticorin, pulicat of chengai mgr
districts etc; most of the shrimp
ponds are constructed on fertile
agricultural land or on marginal
lands where on crop is raised.
owing to the recent shortage of
cauvery water (dispute between t.n.
and karnataka) the yield of crops
has been affected. taking advantage
of this, shrimp industries have
been buying up agricultural land
through inducement,, persuasion and
high pressure on revenue
authorities. salinization of soil
and water adjoining the shrimp
farms is very well documented for
perunthottam village. as per the
cultivation record for land
purchased by <??> bask farms we see
clearly that the ands purchased
were fertile agricultural lands
with an average of two crops having
a 60% harvest yield.
(i) denial of potable water
"nagai, q.m. districts of
tamilnadu, the erstwhile granary of
south" is today threatened with
pollution, ecological imbalance and
land alienation because of the
arrival of large number of private
companies and translational
corporations that have been
investing heavily in shrimp farms
etc" (mukul sharma: interpress
service november 11 1994). drinking
water in the vicinity of shrimp
farms has become saline, wherever
such farms were operated. shrimp
culture may increase salinity
through facilitating the flow of
saline water inland and discharge
of saline effluent (phillips, kwel
lin and beveridge 1993.) water
samples from 7 villages in sirkazhi
near the shrimp farms were analysed
by bhagwathi environment
development institute at dindigul.
it was found that the water from
bore wells and hand pumps were
unpotable (see annexure) the
villages affected were
mahendrapatti, neithavasal,
pudukuppam, eranyimedu, keelaiyun,
thirunagari, nirajimedu etc. this
was also confirmed by the bharatiya
mazdoor sangh in kurru village.
nellore dt where all the freshwater
wells became saline and unpotable
after 4 shrimp farms were
established. the proof of this was
the fast that the district
collector, nellore ordered the
supply of drinking water through
tankers, to these villagers. dr. p.
sanjeev raj (copdanet news letter
winter 1994) also found that salt
water from shrimp pond seeped into
drinking water sources. dr. vandana
shiva, after visiting some villages
recorded that "shortage of drinking
water and deterioration of its
quality have resulted in the
neighbourhood of shrimp farms".
protection of ground water
sources may be viewed as
nontradeable capital, as once
contaminated, they may prove
impossible to rehabilitate (mark
eyvarard 1994).
as per the study done by bedi,
water sample from a drinking water
well in naikarkuppam had a ids of
2164 mg/1 and a chloride content of
99 mg/1 in addition to excessive
quantities of mg and ca. samples
collected from a drinking water
hand pump near shriram shrimp farm
now amalgam farms had an
exceedingly high tds of 357/8 mg/1,
hardness of 7506 mg/i which is as
bad as seawater. unacceptably high
ca, mg and sulphate were recorded.
another hand pump near the same
farm had a tds of 1466 mg/ and a
chloride content of 656 ppm which
are unpotable.
 drinking water from a handpump
near the shrimp farm of coastal
enterprises ltd had a tds of 7694,
chloride of 3879, hardness or 24/0
mq/i and so was unpotable."
the three reports discussed above give a rather
depressing scenario of the shrim industry. while the
production increases and export earnings of the industry are
well publicised, the socio-economic losses and environmental
degradation affecting the well-being of coastal population
are hardly noticed. the traditional production systems are
being replaced by more intensive ones. this have been
ecouraged by increasing demand from high income countries.
shrimp yield per hectare in many areas increased within a
few years from an average 100 kg/ha per harvest to an
average of 1000 kg/ha/crop for semi-intensive shrimp farms
and to between 2000 and 10000 kg/ha/crop for intensive type
of production. the social and environmental costs of the
expanding shrimp industry are closely inter-related.
pollution and other types of natural resource degradation
induced by shrimp farming have been considerably,
highlighted in the neeri reports and other material quoted
and discussed by us. social and environmental changes
resulting from expanding shrimp industry in coastal areas
are largely due to the conversion into shrimp farms of the
lands, waters and forests which were earlier dedicated to
other uses. in fact, shrimp farms are developing at the
expense of other agriculture, acquaculture, forest uses and
fisheries that are better suited in many places for meeting
local food and employment requirements. intensive and semi-
intensive types of shrimp production hardly seem to meet
these requirements.
mangrove forests constitute an important component of
coastal eco-systems. they thrive in tidle estuaries, salt
marshes and muddy coast lines. conversion of mangrove to
shrimp farms significantly reduces the natural production of
wild capture shrimp as well as other fisheries. more over,
their production role for low-lying coastal regions is
rapidly dimnishing by their replacement by shrimp ponds. the
sunder bans, which constitute one of the biggest mangrove
areas in the world, covered in the early 1990s about 12000
sq. kms. in india and bangladesh. in the west bengal part of
sunder bans large mangrove areas have been replaced by the
shrimp ponds.
the increasing need for land by shrimp enterpreneurs
has meant a dramatic rise in land prices in many areas.
after the installation of shrimp farms near village lands,
prices rise estronomically. local farmers can no longer
afford to purchase land, while indebted farmers are tempted
to sell their holdings. much of the coastal land recently
converted into shrimp farms was previously used for food
crops and traditional fishing.
the united nations research institute for social
development in colloboration with the world wide fund for
nature international has conducted a study and published a
report dated june 19, 1995 called "some ecological and
social implications of commercial shrimp farming in asia".
the report is prepared by solon barraclong and andrea finger
- stich (the un report).
the un report gives the following picture regarding
polluted waters and depleted fisheries:-
"polluted waters and depleted
fisheries: shrimp farms use both
sea and fresh water to replenish
their ponds. this brings them into
competition with other users of
these water resources. in areas
where commercial shrimp ponds have
been constructed there is
frequently insufficient fresh water
left to met customary needs for
irrigation, drinking, washing, or
other household and livestock
related uses, and water supplies
may be contaminated, or both.
groundwater salinization has been
reported in several places. this
often means that people - most of
the time women - have to bring
water from more distant wells. in a
village in tamil nadu (nagar-quaid-
e-millet district, pompuhar
region), for example, women have to
walk two to three kilometres to
fetch drinking water that
previously was available nearby
before the expansion of shrimp
farms on about 10,000 hectares
(bhagat, 1994). in andhra pradesh,
a case study conducted by vandana
shiva reports that, in the nellore
district, there was no drinking
water available for the 600
fisherfolk of the village of kurru
due to aquaculture farms salinizing
groundwater. she adds that "after
protest from the local women,
drinking water was supplied in
tankers" (mukul,
1994).........local stocks of
native fish and crustaceans are
being depleted in many places
 because of the removal of mangroves
which served as nurserybeds, and
also as a result of indiscriminate
overfishing of wild shrimp fry
(over 90 per cent of randomly
caught fry are often wasted [gujja,
1994]). natural fisheries are also
frequently damaged by pollution
caused by overloads of nutrients,
sediments and chemicals from shrimp
farms. in another indian coastal
village, ramachandrapuram,
fishermen reported that the value
of their average catch of shrimp
used to be rs.50,000 per catamaran
per month, but after one year of
operation of nearby aquafarms their
catch was ten times smaller (mukul,
1994). in the chokoria part of the
sundarbans' of bangladesh,
fishermen report an 80 per cent
drop in fish capture since the
destruction of the mangroves and
building of dikes for shrimp
farming (sultna, 1994). frequently,
fisherfolk protest because their
traditional access to the coast has
been restricted or because stocks
of wild crustaceans and fish have
disappeared.
all the reports referred to by us clearly indicate that
the expansion of modern shrimp ponds in the coastal areas
has meant that local fishermen could only reach the beach by
trespassing at great risk on shrimp farms or by taking a
long detour. local people have not only lost access to their
fishing grounds and to their sources of riverine seafoods
and seaweeds, but they also have to relinquish social and
recreational activities traditionally taking place on their
beaches. the un report gives the following picture regarding
natural resource degradation as a result of shrimp farming:-
"in areas densely covered with
intensive shrimp farms, however,
the industry is responsible for
considerable self-pollution and
particularly for bacteriological
and viral contamination. each
hectare of pond produces tons of
undigested feed and fasecal wastes
for every crop cycle. this induces
the growth of phytoplankton,
protoza, fungus, bacteria and
viruses (like the vibrio group
growing in shrimp faeces and in
large part responsible for the 1988
collapse of tasiwan's production)
(lin, 1989). the overuse of
fertilizers and of veterinary and
sanitary products such as
antibiotics adds to the water
pollution problem. it also
contributes to the decreasing
resistance of the shrimp stock.
where intensive shrimp farms are
densely spaced, waste laden water
tends to slosh from one pond to
another before it is finally
discharged into the sea. shrimp
producers are extremely concerned
about assured supplies of clean
water as it is vital for their
immediate economic returns.
large amounts of sedimentation
in intensive shrimp ponds is posing
serious disposal problems for
shrimp farmers. from 100 to 500
tons of sediment per hectare per
year are apparently accumulating.
since only some 10 tons of feed is
used to produce about 5 tons of
shrimp per hectare per year, this
raises questions about where such
incredible quantities of sediment
come from (rosenberry, 1994a;42).
ponds are cleaned after each crop
cycle and the sediments are often
discarded in water ways leading
into the sea, or they are sometimes
used to build dikes. their
putrefaction inside and outside the
ponds causes foul odours,
hypernutrification and
eutrophisation, siltation and
turbidity of water courses and
estuaries, with detrimental
implications on local fauna and
flora. .............biodiversity
losses: the impacts of semi-
intensive and intensive shrimp
aquaculture on biodiversity ("the
totality of genes, species and
ecosystems in a region") are
multiple. this is because of the
 land area they cover; the water
they pollute; the water circulation
systems they alter; the wild fish
and crustacean habitats they
replace; the risks they pose of
disease transfer; the impacts of
released raised shrimp on the
genetic diversity and resilence of
indigenous shrimp and possibly also
their negative impacts on other
native fauna and flora.
..........health hazards: health
hazards to local populations living
near or working in shrimp farms
have been observed in several
places. for instance, in tamil nadu
(quaid-e-milleth district near
pondicherry) an approximately 1,500
acre large shrimp farm has been
reported to have caused eight
deaths from previously unknown
diseases within a period of two
months following the installation
of the aquaculture farm (naganathan
et al., 1995:60/). there are
numerous hazards to public health
along the shrimp production chain
from the farmers through the
various processors to the often
distant consumers. the workers
employed on shrimp farms handle
several potentially dangerous
chemicals, and may be exposed to
unsanitary working conditions."
according to the un report - intensive ponds have a
maximum life of only 5 to 10 years. abandoned ponds can no
longer be used for shrimp and there are few known
alternative uses for them except some other types of
acquaculture. apparently they can seldom be economically
rehabilitated for other uses such as crop land. the extent
of abandoned areas by the shrimp industry has been indicated
by the un report in the following works:-
"after a production cycle of about
four of five months, shrimp ponds
under intensive use are cleaned and
disinfected and the polluted sludge
is removed and often disposed for
unsafely. this treatment, however,
does not usually surfice to
maintain the ponds' productivity
for more than five to ten yn years
 (ibid., annex iii/12).
entrepreneurs then move to other
areas because of pollution and
disease. this mode of production
has been called "rape and run"
(csavas, 1994b). the altered milieu
of these abandoned ponds inhibits
the spontaneous regeneration of
vegetation and their use for
agriculture, forestry, other
aquaculture or related fishing
activities. these abandoned areas
do not appear in worldwide
estimastes of areas used for shrimp
farming, which for 1993 were
estimated to include 962,600
hectares, of which 847,000 hectares
were in asia. in december 1994
these areas were estimated to have
increased worldwide to 1,147,500
with 1,017,000 hectares in asia
(rosenberry, 1993 and 1994a).
globally, areas affected by the
industry's practices over the last
decade are probably at least one
third larger, or even more if the
total infrastructures surrounding
the ponds are accounted for."
the un report pithily sums up the "conflicts and
externalities" as under:-
"a major portion of the conflicts
arising from the expansion of
shrimp farming are the result of
environmental and social
degradation that is not included in
the costs of shrimp production.
where the industry assumes no
responsibility for damages to other
groups arising from its activities,
economists call them
"externalities". for example,
abandoned ponds are usually
virtually unusable for other
purposes for indefinite periods
without costly rehabilitation,
which is seldom undertaken.
mangrove destruction, flooding of
crops, salinization or pollution of
land and water associated with the
expansion of shrimp farming all
affect the local people depending
 on these resources"
alagarswami has divided the shrimp-farm technology into
six types. we have already quoted the relevant paragraph
5.1.2 of the report. although different experts have given
different nomenclature to different types of shrimp farm
technologies, we are of the view that the types indicated by
alagarswami in his report are based on the functioning of
the shrimp culture industry in india and as such are
acceptable. keeping in view the neeri report and other
material quoted and discussed by us, we are of the view that
the traditional and improved traditional types of shrimp-
farm technologies - defined by alagarswami - are
environmentally benign and pollution free. other types of
technologies - extensive, modified extensive, semi intensive
and intensive - create pollution and have degrading affect
on the environment and coastal ecology. such type of shrimp
farms cannot be permitted to operate.
we may refer to constitutional and statutory provisions
which mandate the state to protect and improve the
environment. article 48-a of the constitution of india
states that "the state shall endeavour to protect and
improve the environment and to safeguard the forests and
wild life of the country". article 51-a of the constitution
imposes as one of the fundamental duties on every citizen,
the duty to protect and improve thenatural environment
including forests, lakes, rivers and wild life and to have
compassion for living creatures. the environment
(protection) act, 1986 (the act) was enacted as a result of
the decisions taken at the united nations conference on the
human environment held at stockhorm in june, 1972 in which
india participated. the indian delegation was led by the
then prime minister of india. the statement of objects and
reason to the act is as under:-
"the decline in environmental
quality has been evidenced by
increasing pollution, loss of
vegetal cover and biological
diversity, excessive concentrations
of harmful chemicals in the ambient
atmosphere and in food chains,
growing risks of environmental
accidents and threats to life
support systems. the world
community's resolve to protect and
enhance the environmental quality.
found expression in the decisions
taken at the united nations
conference on the human environment
held in stockholm in june, 1972,
government of india participate din
the conference and strongly voiced
 the environmental concerns. while
several measures have been taken
for environmental protection both
before and after the conference,
the need for a general legislation
further to implement the decision
of the conference has become
increasingly evident."
section 2(a), 2(b), 2(c) and 2(e) of the environment
act are as under:-
2. definitions.-in this act, unless
the context otherwise requires,-
(a) "environment" includes water,
air and land and the inter-
relationship which exists among and
between water, air and land, and
human beings, other living
creatures, plants, micro-organism
and property;
(b) "environmental pollutant"
means any solid, liquid or gaseous
substance present in such
concentration as may be, or tend to
be, injurious to environment;
(c) "environmental pollution"
means the presence in the
environment of any environmental
pollutant;
(e) "hazardous substance" means
any substance or preparation which,
by reason of its chemical or
physico-chemical properties or
handling, is liable to cause harm
to human beings, other living
creatures, plants, micro-organism,
property or the environment;"
section 7 and 8 of the environment act are as under:-
"7. persons carrying on industry,
operation, etc., not to allow
emission or discharge of
environmental pollutants in excess
of the standards.- no person
carrying on any industry, operation
or process shall discharge or emit
or permit to be discharged or
emitted any environmental pollutant
in excess of such standards as may
be prescribed.
8. persons handling hazardous
substances to comply with
procedural safeguards.- no person
 shall handle or cause to be handled
any hazardous substance except in
accordance with such procedure and
after complying with such
safeguards as may be prescribed.
section 15 of the act makes contravention of the
provisions of the said act punishable with imprisonment for
a term which may extend to five years or with fine which may
extend to one lakh rupees or with both. if the failure or
contravention continues beyond a period of one year after
the date of conviction, the offender shall be punishable
with imprisonment for a term which may extend to seven
years. the effluents discharged by the commercial shrimp
culture farms are covered by the definition of environmental
pollutant, environmental pollution and hazardous substance.
the neeri reports indicate that the effluents discharged by
the farms at various places were excess of the prescribed
standards. unfortunately, no action is beingtaken by the
authorities under the act.
hazardous waste (management and handling) rules, 1989
(the rules) have been framed under the act. rule 2(i) of the
rules defines "hazardous wastes" to mean categories of
wastes specified in the schedule appended to the rules.
waste category no.12 under the schedule to the rules is as
under:-
"schedule
categories of hazardous waste
------------------------------------------------------------
waste categories types of wastes regulatory
quantities
------------------------------------------------------------
1 2 3
= = =
waste category no.12 sludges arising irrespective of
from treatment of any quality.
waste waters
containing heavy
metals, toxic
organics, oils,
emulsions and spend
chemicals and
incrineration ash."
rule 5 of the rules makes it obligatory for every
occupier generating hazardous wastes to obtain authorisation
as provided under the said rule. rule 5(4) requires the
state pollution control board not to issue and authorisation
unless it is satisfied that the operator of a facility or an
occupier, as the case may be, possesses appropriate
facilities, technical capabilities and equipment to handle
hazardous waste safely.
mr. mehta has vehemently contended that the shrimp
culture farms are discharging highly polluting effluent
which is "hazardous waste", under the rules, mr. mehta
relying upon the neeri reports and other reports placed on
record has contended that none of the farms have obtained
authorisation from the state pollution control boards.
the water (prevention & control of pollution) act. 1974
(the water act) has been enacted to provide for the
prevention and control of water pollution and the
maintaining or restoring of wholesomeness of water. the
statement of objects and reasons of the water act, inter
alia, state as under:-
"the problem of pollution of rivers
and streams has assumed
considerable importance and urgency
in recent years as a result of the
growth or industries and the
increasing tendency to
urbanization. it is, therefore,
essential to ensure that the
domestic and industrial effluents
are not allowed to be discharged
into the water courses without
adequate treatment as such
discharges would render the water
unsuitable as source of drinking
water as well as for supporting
fish life and for use in
irrigation. pollution of rivers and
streams also causes increasing
damage to the country's economy."
section 2 (j) & (k) of the water act are as under:-
"2. definitions.- in this act,
unless the context otherwise
requires,-
(j) "stream" includes-
(i) river;
(ii) water course (whether flowing
or for the time being dry);
(iii) inland water (whether natural
or artificial);
(iv) sub-terranean waters;
(v) sea or tidal waters to such
extent or, as the case may be,
to such point as the state
government may, by
notification in the official
gazette, specify in this
behalf;
(k) "trade effluent" includes any
liquid, gaseous or solid substance
which is discharged from any
 premises used for carrying on any
[industry operation or process, or
treatment and disposal system],
other than domestic sewage.
section 25 of the water act provides that no person
shall, without the previous consent of the state board
establish any industry, operation or process, of any
treatment and disposal system which is likely in discharge
sewage or trade effluent into a stream on well or sewer or
on land. there is nothing on the record to show that the
shrimp culture farm owners are even conscious of the
statutory provisions which require them to obtain the
necessary consent/authorisation from the concerned pollution
control boards.
there are other legislations like fisheries act 1987,
wild life protection act, 1972 and forest conservation act,
1980 which contain useful provisions for environment
protection and pollution control. unfortunately, the
authorities responsible for the implementation of various
statutory provisions are wholly re-miss in the performance
of their duties under the said provisions.
at this stage we may deal with a question which has
incidentally come up for our consideration. under para 2 of
the crz notification, the activities listed thereunder are
declared as prohibited activities. various state governments
have enacted coastal acquaculture legislations regulating
the industries set up in the coastal areas. it was argued
before us that certain provisions of the state legislations
including that of the state of tamil nadu are not in
consonance with the crz notification issued by the
government of india under section 3(3) of the act, assuming
that <??> so, we are of the view that the act being a
central legislation has the overriding effect. the act the
environment protection act, 1986) has been enacted under
entry 13 of list 1 schedule vii of the constitution of
india. the said entry is as under:-
"participation in international
conferences, assessment and other
bodies and implementing of
decisions made there at."
the preamble to the act clearly states that it was
enacted to implement the decisions taken at the united
nations conference on the human environment held at
stockholm in june, 1972. the parliament has enacted the act
under entry 13 of list 1 schedule vii read with article 253
of the constitution of india the crz notification having
been issued under the act shall have overriding effect and
shall prevail over the law made by the legislatures of the
states.
this court in vellore citizens welfare forum vs. union
of india & ors. jt 1966 (7) sc 375 has dealt with the
concept of "sustainable development" and has specifically
accepted "the precautionary principle" and "the polluter
pays" principle as part of the environmental laws of the
land. the relevant part of the judgment is as under;
"the traditional concept that
development and ecology are opposed
to each other, is no longer
acceptable. sustainable development
is the answer. in the international
sphere "sustainable development" as
a concept came to be known for the
first time in the stockholm
declaration of 1972. thereafter, in
1987 the concept was given a
definite shape by the world
commission on environment and
development in its report called
"our common future". the commission
was chaired by the then prime
minister of norway ms. g.h.
brundtland and as such the report
is popularly known as "brundtland
report". in 1991 the world
conservation union, united nations
environment programme and world
wide fund for nature, jointly came
out with a document called "caring
for the earth" which is a strategy
for sustainable living. finally,
came the earth summit held in june,
1992 at rio which saw the largest
gathering of world leaders ever in
the history - deliberating and
chalking out a blue print for the
survival of the planet. among the
tangible achievements of the rio
conference was the signing of two
conventions, one on biological
diversity and another on climate
change. these conventions were
signed by 159 nations. the
delegates also approved by
consensus three non binding
documents namely, a statement on
forestry principles, a declaration
of principles on environmental
policy and development initiatives
and agenda 21, a programme of
action into the next century it
areas like poverty population and
pollution. during the two decades
from stockholm to rio "sustainable
development" has come to be
accepted as a viable concept to
eradicate poverty and improve the
quality of human life while living
within the carrying capacity of the
supporting eco-systems.
"sustainable development" as
defined by the brundtland report
means "development that meets the
needs of the present without
compromising the ability of the
future generations to meet their
own needs". we have no hesitation
in holding that "sustainable
development" as a balancing concept
between ecology and development has
been accepted as a part of the
customary international law though
its salient features have yet to be
finalised by the international law
jurists.
some of the salient principles or
"sustainable development", as
culled out from brundtland report
and other international documents,
are inter-generational equity, use
and conservation of natural
resources, environmental
protection, the precautionary
principle, polluter pays principle,
obligation to assist and cooperate,
eradication of poverty and
financial assistance to the
developing countries. we are,
however, of the view that "the
precautionary principle" and "the
polluter pays" principle are
essential features of "sustainable
development". the "precautionary
principle" - in the context of the
municipal law - means:
(i) environment measures - by the
state government and the statutory
authorities - must anticipate,
prevent and attack the causes of
environmental degradation,
(ii) where there are threats of
serious and irreversible damage,
lack of scientific certainty should
not be used as a reason for
postponing measures to prevent
environmental degradation,
(iii) the "onus of proof" is on the
actor of the
developer/industrialist to show
that his action is environmentally
benign.
"the polluter pays" principle
has been held to be a sound
principle by this court in indian
council for enviro-legal action vs.
union of india jt 1996 (2) 190. the
court observed, "we are of the
opinion that any principle evolved
in this behalf should be simple,
practical and suited to the
conditions obtaining in this
country". the court ruled that
"once the activity carried on is
hazardous or inherently dangerous,
the person carrying on such
activity is liable to make good the
loss caused to nay other person by
his activity irrespective of the
fact whether he took reasonable
care while carrying on his
activity. the rule is premised upon
the very nature of the activity
carried on". consequently the
polluting industries are
"absolutely liable to compensate
for the harm caused by them to
villagers in the affected area, to
the soil and to the underground
water rand hence, they are bound to
take all necessary measures to
remove sludge and other pollutants
lying in the affected areas". the
"polluter pays" principle as
interpreted by this court means
that the obsolute liability for
harm to the environment extends not
only to compensate the victims of
pollution but also the cost of
restoring the environmental
degradation. remediation of the
damaged environment is part of the
process of "sustainable
development" and as such polluter
is liable to pay the cost to the
individual sefferers as well as the
cost of reversing the damaged
ecology.
the precautionary principle
and the polluter pays principle
have been accepted as part of the
law of the land. article 21 of the
constitution of india guarantees
protection of life and personal
liberty. articles 47, 48a and
51a(g) of the constitution are as
under:
"47. duty of the state to
raise the level of nutrition and
the standard of living and to
improve public health. - the state
shall regard the raising of the
revel of nutrition and the standard
of living of its people and the
improvement of public health as
among its primary duties and in
particular, the state that
endeavour to bring about
prohibition of the consumption
except for medicinal purposes of
intoxicating drinks and of drugs
which are injurious to health.
48a. protection and
improvement of environment and
safeguarding of forests and wild
life. - the state shall endeavour
to protect and improve the
environment and to safeguard the
forests and wild life of the
country.
51a(g). to protect and improve
the natural environment including
forests, lakes, rivers and wild
life, and to have compassion for
living creatures."
apart from the constructional
mandate to protect and improve the
environment there are plenty of
post independence legislations on
the subject but more relevant
enactments for our purpose are :
the water (prevention and control
of pollution) act, 1974 (the water
act), the air (prevention and
control of pollution) act, 1981
(the air act) and the environment
protection act, 1986 (the
 environment act). the water act
provides for the constitution f the
central pollution control board by
the central government and the
constitution of the state pollution
control boards by various state
governments in the country. the
boards function under the control
of the governments concerned. the
water act prohibits the use of
streams and wells for disposal of
polluting matters. also provides
for restrictions on outlets and
discharge of effluents without
obtaining consent from the board,
prosecution and penalties have been
provided which include sentence of
imprisonment. the air act provides
that the central pollution control
board and the state pollution
control boards constituted under
the water act shall also perform
the powers and functions under the
air act. the main function of the
boards, under the air act, is to
improve the quality of the air and
to prevent, control and abate air
pollution in the country. we shall
deal with the environment act in
the later part of this judgment.
in view of the above mentioned
constitutional and statutory
provisions we have no hesitation in
holding that the precautionary
principle and the polluter pays
principle are part of the
environment law of the country.
we are of the view that before any shrimp industry or
shrimp pond is permitted to be installed in the ecology
fragile coastal area it must pass through a strict
environmental test. there has to be a high powered
"authority" under the act to scrutinise each and every case
from the environmental point of view. there must be an
environmental impact assessment before permission is granted
to instal commercial shrimp farms. the conceptual framework
of the assessment must be broad-based primarily concerning
environmental <??> linked with shrimp farming. the
assessment must also include the social impact on different
population strata in the area. the quality of the assessment
must be analytically based on superior technology. it must
take into consideration the inter-generational equity and
the compensation for those who are affected and prejudiced.
before parting with this judgment, we may notice the
"dollar" based argument advanced before us. it was contended
before us by the learned counsel appearing for the shrimp
acquaculture industry that the industry has achieved
singular distinction by earning maximum foreign exchange in
the country. almost 100 per cent of the produce is exported
to america, europe and japan and as such the industry has a
large potential to earn "dollars". that may be so, but the
farm-raised production of shrimp is much lesser than the
wild-caught production. the un report shows the world
production of shrimp from 1982 to 1983 as under:-
table 1: world production of shrimp
------------------------------------------------------------
thousands of matric tons
------------------------------------------------------------
year farm-raised wild-caught total
------------------------------------------------------------
1982 84 1,652 1,756
1983 143 1,683 1,626
1984 174 1,733 1,907
1985 213 1,906 2,121
1986 309 1,909 1,218
1987 551 1,909 2,264
1988 604 1,914 2,518
1989 611 1,832 2,518
1990 633 1,968 2,443
1991 690 1,968 2,601
1992 721 2,118 2,912
1993 610 2,100 2,710"
------------------------------------------------------------
it is obvious from the figures quoted above that term-
raised production of shrimp is of very small quantity as
compared to wild-caught even if some of the shrimp culture
farms which are polluting the environment, are closed, the
production of shrimp by environmentally friendly techniques
would not be affectedand there may not be any loss to the
economy specially in view of the finding given by neeri that
the damage caused to ecology and economics by the
acquaculture farming is higher than the earnings from the
sale of coastal acquaculture produce. that may be the reason
for the european and american countries for not permitting
their sea-coasts to be exploited for shrimp-culture farming.
the un report shows that 80% of the farm - cultured - shrimp
comes from the developing countries of asia.
we, therefore, order and directed as under:
1. the central government shall constitute an authority
under section 3(3) of the environment (protection) act, 1986
and shall confer on the said authority all the powers
necessary to protect the ecologically fragile coastal areas,
sea shore, water front and other coastal areas and specially
to deal with the situation created by the shrimp culture
industry in the coastal states/union territories. the
authority shall be headed by <??> judge of a high court.
other members preferably with expertise in the field of
acquaculture, pollution control and environment protection
shall be appointed bythe central government. the central
government shall confer on the said authority the powers to
issue directions under section 5 of the act and for taking
measures with respect to the matters referred to in clauses
(v), (vi), (vii), (viii), (ix), (x) and (xii) of sub-section
(2) of section 3. the central government shall constitute
the authority before january 15, 1997.
2. the authority so constituted by the central government
shall implement "the precautionary principle" and "the
polluter pays" principles.
3. the shrimp culture industry/the shrimp ponds are
covered by the prohibition contained in para 2(1) of the crz
notification. no shrimp culture pond can be constructed or
set up within the coastal regulation zone as defined in the
crz notification. this shall be applicable to all seas,
bays, estuaries, creeks, rivers and backwaters. this
direction shall not apply to traditional and improved
traditional types of technologies far defined in alagarswami
report which are practised in the coastal low lying areas.
4. all acquaculture industries/shrimp culture
industries/shrimp culture ponds operating/set up in the
coastal regulation zone as defined under the crz
notification shall be demolished and removed from the said
area before march 31, 1997. we direct the superintendent of
police/deputy commissioner of police and the district
magistrate/collector of the area to enforce this direction
and close/demolish all acquaculture industries/shrimp
culture industries, shrimp culture ponds on or before march
31, <??> a compliance report in this respect shall be <??>
in this court by these authorities before april 15, 1997.
5. the farmers who are operating traditional and improved
traditional systems of acquaculture may adopt improved
technology for increased production productivity and return
with prior approval of the "authority" constituted by this
order.
6. the agricultural lands, salt pan lands, mangroves, wet
lands, forest lands, land for village common purpose and the
land meant for public purposes shall not be used/converted
for construction of shrimp culture ponds.
7. no acquaculture industry/shrimp culture industry/shrimp
culture ponds shall be constructed/set up within 1000 meter
of chilka lake and pulicat lake (including bird sanctuaries
namely yadurapattu and nelapattu)
8. acquaculture industry/shrimp culture industry/shrimp
culture ponds already operating and functioning in the said
area of 1000 meter shall be closed and demolished before
march 31, 1997. we direct the superintendent of
police/deputy commissioner of police and the district
magistrate/collector of the area to enforce this direction
and close/demolish and acquaculture industries/shrimp
culture industries, shrimp culture ponds on or before march
31, 1997. a compliance report in this respect shall be
filled in this court by these authorities before april 15,
1997.
9. acquaculture industry/shrimp culture industry/shrimp
culture ponds other than traditional and improved
traditional may be set up/constructed outside the coastal
regulation zone as defined by the crz notification and
outside 1000 meter of chilka and pulicat lakes with the
prior approval of the "authority" as constituted by this
court. such industries which are already operating in the
said areas shall <??>authorisation from the "authority"
before april 30, 1997 failing which the industry concerned
shall stop functioning with effect from eh said date. we
further direct that any acquaculture activity including
intensive and semi-intensive which has the effect of causing
salinity of soil, of the drinking water or wells and/or by
the use of chemical feeds increases shrimp or prawn
production with consequent increase in sedimentation which,
on putrefaction is a potential health hazard, apart from
causing silication turbidity of water courses and estuaries
with detrimental implication on local fauna and flora shall
not be allowed by the aforesaid authority.
10. acquaculture industry/shrimp culture industry/shrimp
culture ponds which have been functioning/operating within
the coastal regulation zone as defined by the crz
notification and within 1000 meter from chilka and puliket
lakes shall be liable to compensate the affected persons on
the basis of the "polluter pays" principle.
11. the authority shall, with the help of expert opinion
and after giving opportunity to the concerned polluters
assess the loss to the ecology/<??> the affected areas and
shall a individuals/families who have suffered because of
the pollution and shall assess the compensation to be pain
to the said individuals/families. the authority shall
further determine the compensation to be recovered from the
polluters as cost of reversing the damaged environment. the
authority shall lay down just and fair procedure for
completing the exercise.
12. the authority shall compute the compensation under two
heads hardly, for reversing the ecology and for payment to
individuals. a statement showing amount to be recovered, the
names of the <??> whom the amount is to be recovered, the
<??> recovered from each polluter, the persons to whom the
compensation is to be paid and the amount payable to each of
them shall be forwarded to the collector/district magistrate
of the area concerned. the collector/district magistrate
shall recover the amount from the polluters, if necessary,
as arrears of land revenue. he shall disburse the
compensation awarded by the authority to the affected
persons/families.
13. we further direct that any violation or non-compliance
of the directions of this court shall attract the provisions
of the contempt of courts act in addition.
14. the compensation amount recovered from the polluters
shall be deposited under a separate head called "environment
protection fund" and shall be utilised for compensating the
affected persons as identified by the authority and also for
restoring the damaged environment.
15. the authority, in consultation with expert bodies like
neeri, central pollution control board, respective state
pollution control boards shall frame scheme/schemes for
reversing the damage cause to the ecology and environment by
pollutions of the coastal states/union territories. the
scheme/schemes so framed shall be executed by the respective
state governments/union territory governments under the
supervision of the central government. the expenditure shall
be met from the environment protection <??> from other
sources provided by the respective state governments/union
territory governments and the central government.
16. the workmen employed in the shrimp culture industries
which are to be closed in terms of this order, shall be
deemed to have been retrenched with effect from april 30,
1997 provided they have been in continuous service (as
defined in section 258 of the industrial disputes act, 1947)
for not less than one year in the industry concerned before
the said date. they shall be paid compensation in terms of
section <??> of the industrial disputes act, 1947. these
workmen shall also be paid, in addition, six year's wages as
additional compensation. the compensation shall be paid to
the workmen before may 31, 1997. the gratuity amount payable
to the women shall be paid in addition.
the writ petition is allowed with costs. we quantify
the costs as rs. 1,40,000/-(rupees one lac forty thousand)
to be paid by the states of gujarat. maharashtra, orissa,
kerala, tamil nadu, andhra pradesh and west bengal in equal
shares of rs. 20,000/- each. the amount of rs. 1,40,000/-
realised from the seven coastal states shall be paid to mr.
mc mehta, advocate who has assisted <??> in this case
throughout. we place on record our appreciation for the
assistance rendered by mr. mehta.
petitioner:
union carbide corporation

vs.

respondent:
union of india etc.

date of judgment04/05/1989

bench:
pathak, r.s. (cj)
bench:
pathak, r.s. (cj)
venkataramiah, e.s. (j)
misra rangnath
venkatachalliah, m.n. (j)
ojha, n.d. (j)

citation:
1990 air 273 1989 scc (2) 540
1989 scale (1)932

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

headnote:
the bhopal gas leak tragedy that occurred at midnight of
2nd december, 1984, by the escape of deadly chemical fumes
from the appellant's factory was a great industrial disaster
and it took an immediate toil of 2600 human lives and left
tens of thousands of innocent citizens of bhopal physically
affected in various ways. as per the figures furnished by
the union of india in its amended plaint a total number of
2,660 persons suffered agonising and excruciating deaths
between 30,000 to 40,000 persons sustained serious injuries
as a result of the said disaster.
legal proceedings for the recovery of compensation for
the victims were initiated against the multi-national compa-
ny first in the u.s. courts and later in distt. court at
bhopal in suit no. 113 of 1986. the present appeals concern
with the order dated 4th april, 1988 passed by the madhya
pradesh high court whereby it modified the interlocutory
order dated 17.12.1987 made by the distt. judge and granted
interim compensation of rs.250 crores. both the union of
india and the union carbide corporation have appealed to
this court against that order.
the court by its order dated the 14th february, 1989
made in these appeals directed that there shall be an over-
all settlement of the claims in the suit for 470 million
u.s. dollars and termination of all civil and criminal
proceedings. on may 4, 1989 the court pronounced its reasons
for its aforesaid order dated 14.2.89thus:
the statement of the reasons is not made with any sense
of finality as to the infallibility of the decision; but
with an open mind to be able to appreciate any tenable and
compelling legal or factual infirmities that may be brought
out, calling for remedy in review under article 137 of
the constitution. [132c-d]
129
the basic consideration motivating the conclusion of the
settlement was the compelling need for urgent relief. con-
siderations of excellence and niceties of legal principles
were greatly over-shadowed by the pressing problems of very
survival for a large number of victims. [133a, c]
the instant case is one where damages are sought on
behalf of the victims of a mass disaster, and having regard
to the complexities and the legal question involved, any
person with an unbiased vision would not miss the time
consuming prospect for the course of the litigation in its
sojourn through the various courts, both in india and later
in united states. this court considered it a compelling
duty. both judicial and humane, to secure immediate relief
to the victims. in doing so, the court did not enter upon
any forbidden ground. what this court did was in continua-
tion of what had already been initiated. [133e-f, h; 134a]
the range of choice for the court in regard to the
figures was, therefore, between the maximum of 426 million
u.s. dollars offered by shri nariman and the minimum of 500
million u.s. dollars suggested by the attorney general.
[134f-g]
having regard to all the circumstances including the
prospect of delays inherent in the judicial process in india
and thereafter in the matter of domestication of the decree
in the united states for the purpose of execution, the court
directed that 470 million u.s. dollars which upon immediate
payment and with interest over a reasonable period, pending
actual distribution amongst the claimants, would aggregate
very nearly to 500 million u.s. dollars or its rupee equiva-
lent of approximately rs.750 crores which the attorney
general had suggested. be made the basis of the settlement.
[134g-h; 135a-b]
the settlement proposals were considered on the premises
that the government had the exclusive statutory authority to
represent andact on behalf of the victims and neither
counsel had any reservation as to this. the order was also
made on the premises that the bhopal gas leak disaster
(registration and processing of claims) act 1985 was a valid
law. [135b-c]
there might be different opinions on the interpretation
of laws or on questions of policy or even on what may be
considered wise or unwise; but when one speaks of justice
and truth, these words mean the same thing to all men whose
judgment is uncommitted. [140b-c]
the compulsions of the need for immediate relief to tens of
130
thousands of suffering victims could not wait till these
questions, vital though they be, are resolved in due course
of judicial proceedings. [142d-e]
a settlement has been recorded upon material and in
circumstances which persuaded the court that it was a just
settlement. this is not to say that this court will shut out
any important material and any compelling circumstances
which might impose a duty on it to exercise the powers of
review. like all other human institutions, this court is
human and fallible. what appears to the court to be just and
reasonable in that particular context and setting, need not
necessarily appear to others in the same day. which view is
right, in the ultimate analysis, is to be judged by what it
does to relieve the undeserved suffering of thousands of
innocent citizens of this country. [142f-g]
decisions of courts cannot be reacted or altered or
determined by agitational pressures. if a decision is wrong,
the process of correction must be in a manner recognised by
law. all of those who invoke the corrective processes in
accordance with law shall be heard and the court will do
what the law and the course of justice requires. the matter
concerns the interests of a large number of victims of a
mass disaster. the court directed the settlement with the
earnest hope that it would do hem good and bring them imme-
diate relief, for, tomorrow might be too ate for many of
them. but the case equally concerns the credibility of, and
the public confidence in, the judicial process. [143b, d-e]
those who trust this court will not have cause for despair.
[143f]
m.c. mehta v. union of india, air 1987 sc 1(186; theo-
ries of compensation, r.e. goodin: oxford journal of legal
studies, 1989 p.57 and wallace mendelson.. supreme court
statecraft--the rule of law and men, referred to.

judgment:
civil appellate jurisdiction: civil appeal nos. 3187 and
3188 of 1988.
from the judgment and order dated 4.4.1988 of the madhya
pradesh high court in cr no. 26 of 1988.
anil b. dewan, j.b. dadachanji, mrs. a.k. verma for the
appellant.
k. parasaran, a. mariarputham, miss a. subhashini and
c.l. sahu for the respondents.
131
the following order of the court was delivered:
order
the bhopal gas leak tragedy that occurred at midnight on
2nd december, 1984, by the escape of deadly chemical fumes
from the appellant's pesticide-factory was a horrendous
industrial mass disaster, unparalleled in its magnitude and
devastation and remains a ghastly monument to the de-huma-
nising influence of inherently dangerous technologies. the
tragedy took an immediate toll of 2,660 innocent human lives
and left tens of thousands of innocent citizens of bhopal
physically impaired or affected in various degrees. what
added grim poignance to the tragedy was that the
industrial-enterprise was using methyl iso-cyanate, a lethal
toxic poison, whose potentiality for destruction of life and
biotic-communities was, apparently, matched only by the lack
of a pre-package of relief procedures for management of any
accident based on adequate scientific knowledge as to the
ameliorative medical procedures for immediate neutralisation
of its effects.
it is unnecessary for the present purpose to refer, in
any detail, to the somewhat meandering course of the legal
proceedings for the recovery of compensation initiated
against the multi-national company initially in the courts
in the united states of america and later in the district
court at bhopal in suit no. 113 of 1986. it would suffice to
refer to the order dated 4 april, 1988 of the high court of
madhya pradesh which, in modification of the interlocutory-
order dated 17 december, 1987 made by the learned district
judge, granted an interim compensation of rs.250 crores.
both the union of india and the union carbide corporation
appealed against that order.
this court by its order dated 14 february, 1989 made in
those appeals directed that there be an overall settlement
of the claims in the suit, for 470 million us dollars and
termination of all civil and criminal proceedings. the
opening words of the order said:
"having given our careful considera-
tion for these several days to the facts and
circumstances of the case placed before us by
the parties in these proceedings, including
the pleadings of the parties, the mass of data
placed before us, the material relating to the
proceedings in the courts in the united states
of america, the offers and counter-offers made
between the parties at different stages
132
during the various proceedings, as well as the
complex issues of law and fact raised before
us and the submission made thereon, and in
particular the enormity of human suffering
occasioned by the bhopal gas disaster and the
pressing urgency to provide immediate and
substantial relief to victims of the disaster,
we are of opinion that the case is pre-emi-
nently fit for an overall settlement between
the parties covering all litigations, claims,
rights and liabilities related to and arising
out of the disaster ..... "
(emphasis supplied)
it appears to us that the reasons that
persuaded this court to make the order for
settlement should be set-out, so that those
who have sought a review might be able effec-
tively to assist the court in satisfactorily
dealing with the prayer for a review. the
statement of the reasons is not made with any
sense of finality as to the infallibility of
the decision; but with an open mind to be able
to appreciate any tenable and compelling legal
or factual infirmities that may be brought
out, calling for remedy in review under arti-
cle 137 of the constitution.
the points on which we propose to set-out
 brief reasons are the following:
(a) how did this court arrive at the sum of
470 million us dollars for an over-all settle-
ment?
(b) why did the court consider this sum of 470
million us dollars as 'just, equitable and
reasonable'?
(c) why did the court not pronounce on certain
important legal questions of far reaching
importance said to arise in the appeals as to
the principles of liability of monolithic,
economically entrenched multi-national compa-
nies operating with inherently dangerous
technologies in the developing countries of
the third world--questions said to be of great
contemporary relevance to the democracies of
the third-world?
there is yet another aspect of the review pertaining to
the part of the settlement which terminated the criminal
proceedings. the questions raised on the point in the re-
view-petitions, prima facie, merit consideration and we
should, therefore, abstain from saying anything which might
tend to pre-judge this issue one way or the other.
133
the basic consideration motivating the conclusion of the
settlement was the compelling need for urgent relief. the
suffering of the victims has been intense and unrelieved.
thousands of persons who pursued their own occupations for
an humble and honest living have been rendered destitute by
this ghastly disaster. even after four years of litigation,
basic questions of the fundamentals of the law as to liabil-
ity of the union carbide corporation and the quantum of
damages are yet being debated. these, of course, are impor-
tant issues which need to be decided. but, when thousands of
innocent citizens were in near destitute conditions, without
adequate subsistential needs of food and medicine and with
every coming morrow haunted by the spectre of death and
continued agony, it would be heartless abstention, if the
possibilities of immediate sources of relief were not ex-
plored. considerations of excellence and niceties of legal
principles were greatly over-shadowed by the pressing prob-
lems of very survival for a large number of victims.
the law's delays are, indeed, proverbial. it has been
the unfortunate baneof the judicial process that even
ordinary cases, where evidence consists of a few documents
and the oral testimony of a few witnesses, require some
years to realise the fruits of litigation. this is so even
in cases of great and unquestionable urgency such as fatal
accident actions brought by the dependents. these are hard
realities. the present case is one where damages are sought
on behalf of the victims of a mass disaster and, having
regard to the complexities and the legal questions involved,
any person with an unbiased vision would not miss the time
consuming prospect for the course of the litigation in its
sojourn through the various courts, both in india and later
in united states.
it is indeed a matter for national introspection that
public response to this great tragedy which affected a large
number of poor and helpless persons limited itself to the
expression of understandable anger against the industrial
enterprise but did not channel itself in any effort to put
together a public supported relief fund so that the victims
were not left in distress, till the final decision in the
litigation. it is well known that during the recent drought
in gujarat, the devoted efforts of public spirited persons
mitigated, in great measure, the loss of cattle-wealth in
the near famine conditions that prevailed.
this court, considered it a compelling duty, both judi-
cial and humane, to secure immediate relief to the victims.
in doing so, the court did not enter upon any forbidden
ground. indeed, efforts had
134
earlier been made in this direction by judge keenan in the
united states and by the learned district judge at bhopal.
what this court did was in continuation of what had already
been initiated. even at the opening of the arguments in the
appeals, the court had suggested to learned counsel on both
sides to reach a just and fair settlement. again, when
counsel met for re-scheduling of the hearings the suggestion
was reiterated. the response of learned counsel on both
sides was positive in attempting a settlement, butthey
expressed a certain degree of uneasiness and scepticism at
the prospects of success in view of their past experience of
such negotiations when, as they stated, there had been
uninformed and even irresponsible criticism of the attempts
at settlement. the learned attorney general submitted that
even the most bona fide, sincere and devoted efforts at
settlement were likely to come in for motivated criticism.
the court asked learned counsel to make available the
particulars of offers and counter offers made on previous
occasions for a mutual settlement. learned counsel for both
parties furnished particulars of the earlier offers made for
an overall settlement and what had been considered as a
reasonable basis in that behalf. the progress made by previ-
ous negotiations was graphically indicated and these docu-
ments form part of the record. shri nariman stated that his
client would stand by its earlier offer of three hundred and
fifty million us dollars and also submitted that his client
had also offered to add appropriate interest, at the rates
prevailing in the u.s.a., to the sum of 350 million us
dollars which raised the figure to 426 million us dollars.
shri nariman stated that his client was of the view that
amount was the highest it could go upto. in regard tothis
offer of 426 million us dollars the learned attorney-general
submitted that he could not accept this offer. he submitted
that any sum less than 500 million us dollars would not be
reasonable. learned counsel for both parties stated that
they would leave it to the court to decide what should be
the figure of compensation. the range of choice for the
court in regard to the figure was, therefore, between the
maximum of 426 million us dollars offered by shri nariman
and the minimum of 500 million us dollars suggested by the
learned attorney general.
in these circumstances, the court examined the prima
facie material as to the basis of quantification of a sum
which, having regard to all the circumstances including the
prospect of delays inherent in the judicial-process in india
and thereafter in the matter of domestication of the decree
in the united states for the purpose of execution and di-
rected that 470 million us dollars, which upon immediate
payment
135
and with interest over a reasonable period, pending actual
distribution amongst the claimants, would aggregate very
nearly to 500 million us dollars or its rupee equivalent of
approximately rs.750 crores which the learned attorney
general had suggested, be made the basis of the settlement.
both the parties accepted this direction.
the settlement proposals were considered on the premise
that government had the exclusive statutory authority to
represent andact on behalf of the victims and neither
counsel had any reservation as to this. the order was also
made on the premise that the bhopal gas leak disaster
(registration and processing of claims) act, 1985 was a
valid law. in the event the act is declared void in the
pending proceedings challenging its validity, the order
dated 14, february, 1989 would require to be examined in the
light of that decision.
we should make it clear that if any material is placed
before this court from which a reasonable inference is
possible that the union carbide corporation had, at any time
earlier, offered to pay any sum higher than an out-right
down payment of us 470 million dollars, this court would
straightaway initiate suo motu action requiring the con-
cerned parties to show cause why the order dated 14 febru-
ary, 1989 should not be set aside and the parties relegated
to their respective original positions.
the next question is as to the basis on which this court
considered this sum to be a reasonable one. this is not
independent of its quantification, the idea of reasonable-
ness for the present purpose is necessarily a broad and
general estimate in the context of a settlement of the
dispute and not on the basis of an accurate assessment by
adjudication. the question is how good or reasonable it is
as a settlement, which would avoid delays, uncertainties and
assure immediate payment. the estimate, in the very nature
of things, cannot share the accuracy of an adjudication.
here again one of the important considerations was the range
disclosed by the offers and counter offers which was between
426 million us dollars and 500 million us dollars. the court
also examined certain materials available on record includ-
ing the figures mentioned in the pleadings, the estimate
made by the high court and also certain figures referred to
in the course of the arguments.
there are a large number of claims under the act. in the
very nature of the situation, doubts that a sizeable number
of them are either without any just basis or were otherwise
exaggerated could not
136
be ruled out. it was, therefore, thought not unreasonable to
proceed on some prima facie undisputed figures of cases of
death and of substantially compensatable personal injuries.
the particulars of the number of persons treated at the
hospitals was an important indicator in that behalf. this
court had no reason to doubt the bona fides of the figures
furnished by the plaintiff itself in the pleadings as to the
number of persons suffering serious injuries.
from the order of the high court and the admitted posi-
tion on the plaintiff's own side, a reasonable, prima facie,
estimate of the number of fatal cases and serious personal
injury cases, was possible to be made. the high court said:
" ..... in the circumstances, leaving a
small margin for the possibility of some of
the claims relating to death and personal
injuries made by the multitude of claims
before the director of claims of the state
government being spurious, there is no reason
to doubt that the figure furnished by the
plaintiff union of india in its amended plaint
can be safely accepted for the purpose of
granting the relief' of interim payment of
damages. it has been stated by the plaintiff
union of india that a total number of 2660
persons suffered agonising and excruciating
deaths and between 30,000 to 40,000 sustained
serious injuries as a result of the disas-
ter ..... "
(emphasis supplied)
there is no scope for any doubt that the cases referred
to as those of 'serious injuries' include both types of
cases of permanent total and partial disabilities of various
degrees as also cases of temporary total or partial disabil-
ities of different degrees. the high court relied upon the
averments and claims in the amended pleadings of the plain-
tiff, the union of india, to reach this prima facie finding.
then, in assessing the quantum of interimcompensation
the high court did not adopt the standards of compensation
usually awarded in fatal-accidents-actions or personal-
injury-actions arising under the motor vehicles act. it is
well-known that in fatal-accidentactions where children are
concerned, the compensation awardable is in conventional
sums ranging from rs.15,000 to rs.30,000 in each case. in
the present case a large number of deaths was of children of
very young age. even in the case of adults, according to the
general run of damages in comparable cases, the damages
assessed on the
137
usual multiplier-method in the case of income groups com-
parable to those of the deceased-persons, would be anywhere
between rs.80,000 and rs. 1,00,000.
but the high court discarded, and rightly, these ordi-
nary standards which, if applied, would havelimited the
aggregate of compensation payable in fatal cases to a sum
less than rs.20 crores in all. the high court thought it
should adopt the broader principle in m.c. mehta v. union of
india, air 1987 sc 1086. stressing the need to apply such a
higher standard, the high court said:
"as mentioned earlier, the measure of damages
payable by the alleged tort-teaser as per the
nature of tort involved in the suit has to be
correlated to the magnitude and the capacity
of the enterprises because such compensation
must have a deterrent effect .........
(emphasis supplied)
applying these higher standards of compensa-
tion, the high court proceeded to assess
damage in the following manner:
"bearing in mind, the above factors, in the
opinion of this court, it would not be unrea-
sonable to assume that if the suit proceeded
to trial the plaintiff-union of india would
obtain judgment in respect of the claims
relating to deaths and personal injuries at
least in the following amounts: (a) rs.2 lakhs
in each case of death: (b) rs.2 lakhs in each
case of total permanent disability; (c) rs.1
lakh in each case of permanent partial disa-
blement and (d) rs.50,000 in each case of
temporary partial disablement."
(emphasis supplied)
half of these amounts were awarded as interim compensation.
an amount of rs.250 crores was awarded.
the figures adopted by the high court in regard to the
number of fatal cases and cases of serious personal injuries
do not appear to have been disputed by anybody before the
high court. these data and estimates of the high court had a
particular significance in the settlement. then again, it
was not disputed before us that the total number of fatal
cases was about 3000 and of grievous and serious personal
injuries, as verifiable from the records of the hospitals of
cases treated
138
at bhopal, was in the neighbourhood of 30,000. it would not
be unreasonable to expect that persons suffering serious and
substantially compensable injuries would have gone to hospi-
tals for treatment. it would also appear that within about 8
months of the occurrence, a survey had been conducted for
purposes of identification of cases of death and grievous
and serious injuries for purposes of distribution of certain
ex gratia payments sanctioned by government. these figures
were, it would appear, less than ten thousand.
in these circumstances, as a rough and ready estimate,
this court took into consideration the prima facie findings
of the high court and estimated the number of fatal cases at
3000 where compensation could range from rs.l lakh to rs.3
lakhs. this would account for rs.70 crores, nearly 3 times
higher than what would, otherwise, be awarded in comparable
casses in motor vehicles accident claims.
death has an inexorable finality about it. human lives
that have been lost were precious and in that sense price-
less and invaluable. but the law can compensate the estate
of a person whose life is lost by the wrongful act of anoth-
er only in the way of the law is equipped to compensate i.e.
by monetary compensations calculated on certain well-recog-
nised principles. "loss to the estate" which is the entitle-
ment of the estate and the 'loss of dependancy' estimated on
the basis of capitalised present-value awardable to the
heirs and dependants, are the main components in the compu-
tation of compensation in fatal accident actions. but, the
high court in estimating the value of compensation had
adopted a higher basis.
so far as personal injury cases are concerned, about
30,000 was estimated as cases of permanent total or partial
disability. compensation ranging from rs.2 lakhs to
rs.50,000 per individual according as the disability is
total or partial and degrees of the latter was envisaged.
this alone would account for rs.250crores. in another
20,000 cases of temporary total or partial disability com-
pensation ranging from rs. 1 lakh down to rs.25,000 depend-
ing on the nature and extent of the injuries and extent and
degree of the temporary incapacitation accounting for a
further allocation of rs. 100 crores, was envisaged. again,
there might be possibility of injuries of utmost severity in
which case even rs.4 lakhs per individual might have to be
considered. rs.80 crores, additionally for about 2000 of
such cases were envisaged. a sum of rs.500 crores approxi-
mately was thought of as allocable to the fatal cases and
42,000 cases of such serious personal injuries leaving
behind in their trail total or partial incapacitation either
of permanent or temporary character.
139
it was considered that some outlays would have to be
made for specialised institutional medical treatment for
cases requiring such expert medical attention and for reha-
bilitation and after care. rs.25 crores for the creation of
such facilities was envisaged.
that would leave another rs.225 crores. it is true that
in assessing the interim compensation the high court had
taken into account only the cases of injuries resulting in
permanent or temporary disabilities--total--or partial--and
had not adverted to the large number of other claims, said
to run into lakhs, filed by other claimants.
such cases of claims do not, apparently, pertain to
serious cases of permanent or temporary disabilities but are
cases of a less serious nature, comprising claims for minor
injuries, loss of personal belongings, loss of live-stock
etc. for which there was a general allocation of rs.225
crores. if in respect of these claims allocations are made
at rs.20,000, rs. 15,000 and rs. 10,000 for about 50,000
person or claims in each category--accounting for about one
and half lakhs more claims--the sums required would be met
by rs.225 crores.
looked at from another angle, if the corpus of rs.750
crores along with the current market rates of interest on
corporate borrowings, of say 14% or 14 1/2 % is spent over a
period of eight years it would make available rs. 150 crores
each year; or even if interest alone is taken, about rs. 105
to 110 crores per year could be spent, year-afteryear,
perpetually towards compensation and relief to the victims.
the court also took into consideration the general run
of damages in comparable accident claim cases and in cases
under workmens compensation laws. the broad allocations made
are higher than those awarded or awardable in such claims.
these apportionments are merely broad considerations gener-
ally guiding the idea of reasonableness of the overall basis
of settlement. this exercise is not a predetermination of
the quantum of compensation amongst the claimants either
individually or category-wise. no individual claimant shall
be entitled to claim a particular quantum of compensation
even if his case is found to fall within any of the broad
categories indicated above. the determination of the actual
quantum of compensation payable to the claimants has to be
done by the authorities under the act, on the basis of the
facts of each case and without reference to the hypothetical
quantifications made only for purposes of an overall view of
the adequacy of the amount.
140
 these are the broad and general assumptions underlying
the concept of 'justness' of the determination of the quan-
tum. if the total number of cases of death or of permanent,
total or partial, disabilities or of what may be called
'catastrophic' injuries is shown to be so large that the
basic assumptions underlying the settlement become wholly
unrelated to the realities, the element of 'justness' of the
determination and of the 'truth' of its factual foundation
would seriously be impaired. the 'justness' of the settle-
ment is based on these assumptions of truth. indeed, there
might be different opinions on the interpretation of laws or
on questions of policy or even on what may be considered
wise or unwise; but when one speaks of justice and truth,
these words mean the same thing to all men whose judgment is
uncommitted. of truth and justice, anatole france said:
"truth passes within herself a penetrating
force unknown alike to error and falsehood. i
say truth and you must understand my meaning.
for the beautiful words truth and justice need
not be defined in order to be understood in
their true sense. they bear within them a
shining beauty and a heavenly light. i firmly
believe in the triumph of truth and justice.
that is what upholds me in times of trial
......"
as to the remaining question, it has been said that many
vital juristic principles of great contemporary relevance to
the third world generally, and to india in particular,
touching problems emerging from the pursuit of such danger-
ous technologies for economic gains by multi-nationals arose
in this case. it is said that this is an instance of lost
opportunity to this apex court to give the law the new
direction on vital issues emerging from the increasing
dimensions of the economic exploitation of developing coun-
tries by economic forces of the rich ones. this case also,
it is said, concerns the legal limits to be envisaged, in
the vital interests of the protection of the constitutional
rights of the citizenry, and of the environment, on the
permissibility of such ultra-hazardous technologies and to
prescribe absolute and deterrent standards of liability if
harm is caused by such enterprises. the prospect of exploi-
tation of cheap labour and of captive-markets, it is said,
induces multi-nationals to enter into the developing coun-
tries for such economic-exploitation and that this was
eminently an appropriate case for a careful assessment of
the legal and constitutional safeguards stemming from these
vital issues of great contemporary relevance.
these issues and certain cognate areas of even wider signif-
icance
141
and the limits of the adjudicative disposition of some of
their aspects are indeed questions of seminal importance.
the culture of modern industrial technologies, which is
sustained on processes of such pernicious potentialities, in
the ultimate analysis, has thrown open vital and fundamental
issues of technology-options. associated problems of the
adequacy of legal protection against such exploitative and
hazardous industrial adventurism, and whether the citizens
of the country are assured the protection of a legal system
which could be said to be adequate in a comprehensive sense
in such contexts arise. these, indeed, are issues of vital
importance and this tragedy, and the conditions that enabled
it happen, are of particular concern.
the chemical pesticide industry is a concomitant, and
indeed, an integral part, of the technology of chemical
farming. some experts think that it is time to return from
the high-risk, resource-intensive, high-input, anti-ecologi-
cal, monopolistic 'hard' technology which feeds, and is fed
on, its self-assertive attribute, to a more human and hu-
mane, flexible, eco-conformable, "soft" technology with its
systemic-wisdom and opportunities for human creativity and
initiative. "wisdom demands" says schumacher" a new orienta-
tion of science and technology towards the organic, the
gentle, the non-violent, the elegant and beautiful". the
other view stressing the spectacular success of agricultural
production in the new era of chemical farming, with high-
yielding strains, points to the break-through achieved by
the green revolution with its effective response to, and
successful management of, the great challenges of feeding
the millions. this technology in agriculture has given a big
impetus to enterprises of chemical fertilizers and pesti-
cides. this, say its critics, has brought in its trail its
own serious problems. the technology-options before scien-
tists and planners have been difficult.
indeed, there is also need to evolve a national policy
to protect national interests from such ultra-hazardous
pursuits of economic gains. jurists, technologists and other
experts in economics, environmentology, futurology, sociolo-
gy and public health etc. should identify areas of common
concern and help in evolving proper criteria which may
receive judicial recognition and legal sanction.
one aspect of this matter was dealt with by this court
in m.c. mehta v. union of india, (supra) which marked a
significant stage in the development of the law. but, at the
hearing there was more than a mere hint in the submissions
of the union carbide that in this case the law was altered
with only the union carbide corporation in mind, and
142
was altered to its disadvantage even before the case had
reached this court. the criticism of the mehta principle,
perhaps, ignores the emerging postulates of tortious liabil-
ity whose principal focus is the social-limits on economic
adventurism. there are certain things that a civilised
society simply cannot permit to be done to its members, even
if they are compensated for their resulting losses. we may
note a passage in "theories of compensation," r.e. goodin:
oxford journal of legal studies, 1989, p. 57.
"it would, however, be wrong to presume that
we as a society can do anything we like to
people, just so long as we compensate them for
their losses. such a proposition would mistake
part of the policy universe for the whole. the
set of policies to which it points--policies
that are 'permissible' but only with compensa-
tion'--is bounded on the one side by a set of
policies that are 'permissible, even without
compensation' and on the other side by a set
of policies that are 'impermissible, even with
compensation'."
but, in the present case, the compulsions of the need
for immediate relief to tens of thousands of suffering
victims could not, in our opinion, wait till these ques-
tions, vital though they be, are resolved in the due course
of judicial proceedings. the tremendous suffering of thou-
sands of persons compelled us to move into the direction of
immediate relief which, we thought, should not be subordi-
nated to the uncertain promises of the law, and when the
assessment of fairness of the amount was based on certain
factors and assumptions not disputed even by the plaintiff.
a few words in conclusion. a settlement has been record-
ed upon material and in circumstances which persuaded the
court that it was a just settlement. this is not to say that
this court will shut out any important material and compel-
ling circumstances which might impose the duty on it to
exercise the powers of review. like all other human institu-
tions, this court is human and fallible. what appears to the
court to be just and reasonable in that particular context
and setting, need not necessarily appear to others in the
same way. which view is right,in the ultimate analysis, is
to be judged by what it does to relieve the undeserved
suffering of thousands of innocent citizens of this country.
as a learned author said: wallace mendelson: supreme court
statecraft--the rule of law and men.
"in this imperfect legal setting we expect
judges to clear
143
their endless dockets, uphold the rule of law,
'and yet not utterly disregard our need for
the discretionary justice of plato's philoso-
pher king. judges must be sometimes cautious
and sometimes bold. judges must respect both
the traditions of the past and the convenience
of the present........"
but the course of the decisions of courts cannot be reached
or altered or determined by agitational pressures. if a
decision is wrong, the process of correction must be in a
manner recognised by law. here, many persons and social
action groups claim to speak for the victims, quite a few in
different voices. the factual allegations on which they rest
their approach are conflicting in some areas and it becomes
difficult to distinguish truth from false-hood and half-
truth, and to distinguish as to who speaks for whom.
however, all of those who invoke the corrective-process-
es in accordance with law shall be heard and the court will
do what the law and the course of justice requires. the
matter concerns the interests of a large number of victims
of a mass disaster. the court directed the settlement with
the earnest hope that it would do them good and bring them
immediate relief, for, tomorrow might be too late formany
of them. but the case equally concerns the credibility of,
and the public confidence in, the judicial process. if,
owing to the pre-settlement procedures being limited to the
main contestants in the appeal, the benefit of some contrary
or supplemental information or material, having a crucial
bearing on the fundamental assumptions basic to the settle-
ment, have been denied to the court and that, as a result,
serious miscarriage of justice, violating the constitutional
and legal rights of the persons affected, has been occa-
sioned, it will be the endeavour of this court to undo any
such injustice. but that, we reiterate, must be by proce-
dures recognised by law. those who trust this court will not
have cause for despair.
144