INDIAN COUNCIL FOR ENVIRO LEGAL�vs�UNION OF INDIA��AIR 1996 SC 1446

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BACKGROUND

• This writ petition filed by an environmentalist organization brings into light the woes of people living in the vicinity of chemical industrial plants in India.
• It highlights the contempt of law on the part of authorities.
• It brings into limelight the collective social action to fight for environmental protection.

FACTS

• Bichhri is a small village in Udaipur district of Rajasthan, and to its north a major industrial public establishment, Hindustan Zinc Limited was situated. That did not much affect Bichhri.
• The problem began in 1987 when Hindustan Agro Chemicals Limited (Respondent no. 4) started producing chemicals like oleum and single super phosphate.
• It’s sister concern, Silver Chemicals (Respondent no. 5) commenced production of ‘H’ acid in the same complex. H acid was meant for export whose manufacture gave rise to toxic effluents such as iron based and gypsum based sludge, posing a threat to the nature.
• Jyoti Chemicals (Respondent no. 8), another unit to produce H acid, besides some other chemicals.
• Respondent nos. 6 and 7 were units, established to produce fertilizers and a few other products.
• All the units of Respondent nos. 4 to 8 are situated in the same complex, controlled by same group of individuals and are to called “chemical industries”.

FACTS (Contd.)

• The units Silver & Jyoti chemicals have give birth to around 2500 MT of highly toxic sludge. Since the toxic untreated waste waters were allowed to flow out freely and toxic sludge was dumped in the open, these substances have percolated deep into the Earth, polluting the aquifers and ground water making it unfit for human and animal consumption.
• The soil was rendered unfit for cultivation, which spread disease and death in the village and surrounding areas.
• Villagers rose to action for the shutting down of these units, to which they averred that they have stopped manufacturing chemicals. However, the consequences of their action had long lasting effect.
• The present social action was initiated in August 1989 complaining about the above situation and requesting for appropriate remedial action. The petitioner enclosed a number of photographs illustrating the enormous damage caused.

COUNTER-AFFIDAVITS OF THE RESPONDENTS

• Counter affidavits have been filed by the Govt of Rajasthan, Rajasthan Pollution Control Board (R.P.C..B.) and Respondent nos 4 to 8.
• 1) R.P.C.B.: R-no. 4 was granted a ‘No Objection Certificate’ under water Act, 1974 and Air Act, 1981 for manufacturing oleum and super phosphate but they started manufacturing ‘H’ acid without consent. The sister concern was refused permission under Water and Air Act, still they carried on production. Govt was asked to cut off electricity and water supply but it failed in taking action. Other units were established without prior consent. The Board also submitted that the R-no. 4 to 8 were to dispose off the sludge in accordance with Hazardous Wastes (Management and Handling) Rules, 1989 in which they failed.
• 2) Govt of Rajasthan: The State Govt is now aware about the pollution of underground water caused by these units. Though water in most areas of this village had got contaminated, yet in some areas, water remains unaffected. While Silver Chemicals had approached the Govt with letter of intent, Jyoti chemicals did not even seek permission.
• 3) R-nos. 4 to 8: Filed separate counter affidavits submitting that they had received the No Objection Certificate from time to time. The fertilizer units submitted that since they were small scale industries, they did not cause pollution and also they shut down for want of funds. Hindustan Zinc Limited was impleaded as 9^th respondent, to which they submitted that they were situated far away from the village.

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ORDERS PASSED AND STEPS TAKEN (1989-95)

• The court after hearing the parties requested the National Environmental Engineering Research Institute (NEERI) to study the situation in and around Bichhri village and submit their report on available remedies. NEERI was requested to submit both short and long term measures to combat the hazard already caused.
• RPCB was also directed to submit the report concerning the village. The Respondents submitted before the Court that they have stopped the manufacturing process and will undertake the de-watering of wells.
• On failure to handle the waste management, they spread the wastes which heightened the problem of removal of sludge. The court directed the MoEF and Govt of India to inspect the area, direct the respondents for entombing the sludge and recover costs from them.
• The Court in 1993 directed that samples should be taken from entombed sludge and affected wells and sent for analysis and it was found that the water was contaminated due to the effluents of H acid.
• The Court ordered for closure of industries and the grievance of the respondents was that they were not even allowed to submit a report for the show cause notice.

FURTHER CONTENTIONS

• The petitioner relied on NEERI Report on “Restoration of Environmental Quality of the affected area surrounding village Bichhri due to past Waste Disposal Activities”, submitted in April, 1994 and other material on record. Also they relied on “Polluter Pays Principle” established in the Oleum Gas Leak case of 1987 according to which the Respondents were liable to pay for the damages caused.
• The respondents 4 to 8 contended to this by stating that they are private bodies and are not ‘State’ within A. 12 of the Constitution. Hence writ petition does not lie against them. Also R-no 9 existed long before, hence action should be taken against it.

RELEVANT STATUTORY PROVISIONS�&�CONSIDERATION OF SUBMISSIONS

• A.48A and 51A of the Directive Principles of State policy, which lays emphasis on the protection of environment have been emphasized.
• S.24 and 25 of Water (Prevention and Control of Pollution) Act, 1974 which lays down measures to discharge sewage and s.3 and 5 of Environment (Protection) Act, 1986 which confers responsibility on the Central Govt to issue directions to persons to protect the environment.
• Hazardous Wastes (Management and Handling) Rules, 1989 has been referred to which prescribes manner for collection, treatment, storage and disposal of hazardous wastes.
• As per A.21 of the Constitution, the right to life of the people of Bichhri village was getting jeopardized, hence the writ is maintainable while though R no.9 is also causing pollution but not in village Bichhri, hence they cannot be considered a party in this proceeding.
• The court directed that the Respondents should submit a reply to the show cause notice within 6 weeks from the Court’s order and the Central Government should determine the amount to be levied from the units for carrying out remedial measures. Respondents to pay litigation costs to the petitioner. Writ petition allowed.

CONCLUSION

• Various environmental legislations were referred to by the Court and reference was made to Directive Principles of State Policy and Constitutional provisions.
• NEERI Report played an important role in highlighting the hazards caused to the environment of Bichhri village along with providing remedies.
• Polluter pays principle (Absolute Liabilty) as established in the Oleum Gas Leak Case was relied upon.
• A successful collective action was achieved.