(1) I.A. NO.30915/2019 AND 153946/2019(APPLNS. FOR DIRECTIONS AND SEEKING LEAVE TO PLACE ON RECORD ADDL. DOCUMENTS ON B/O MIDEAST INTEGRATED STEELS LTD.)

(2) I.A. NO.186810/2019 (APPLICATION FOR DIRECTIONS) ON BEHALF OF M/S SARDA MINES PRIVATE LIMITED

(3) I.A. NO.157635/2019 (APPLICATION FOR DIRECTIONS) ON BEHALF OF ORISSA MINING CORPORATION LIMITED

“ONLY” IN W.P.(C) NO. 114/2014 ARE LISTED TODAY.

THE NAMES OF THE FOLLOWING ADVOCATES MAY BE TREATED TO HAVE BEEN SHOWN IN THE LIST:MR. HARISH N. SALVE, SR. ADVOCATE (A.C.) MS. APARAJITA SINGH, SR. ADVOCATE (A.C.) MR. A.D.N. RAO, ADVOCATE (A.C.) MR. SIDDHARTHA CHOWDHURY, ADVOCATE (A.C.)MR. PRASHANT BHUSHAN MR. B.K. PRASADMR. GURMEET SINGH MAKKER MS. KIRTI R. MISHRAMR. MR. L.R. SINGH, ADVOCATES. )

Date : 08-01-2020 These matters were called on for hearing today.

CORAM :
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE B.R. GAVAI
HON’BLE MR. JUSTICE SURYA KANT

Counsel for the parties
Mr. Harish N. Salve, Sr. Adv. (A.C.) (N.P.)
Ms. Aparajita Singh, Sr. Adv. (A.C.)
Mr. ADN Rao, Adv. (A.C.)
Mr. Siddhartha Chowdhury, Adv. (A.C.)
Mr. Prashant Bhushan, AOR
Mr. Pranav Sachedeva, Adv.
Mr. Hemanth Pothula, Adv.
Mr. B.K. Prasad, AOR
Ms. Pinky Anand, ASG
Ms. V. Mohna, Sr. Adv.
Mr. Atulesh Kumar, Adv.
Mr. Raj Bahadur, Adv.
Mr. R.R. Rajesh, Adv.
Mr. D.V. Rao, Adv.
Mr. Tarkeshwar Nath, Adv.
Ms. Saudimini Sharma, Adv.
Mr. Hemand Arya, Adv.
Mr. Mukesh Kumar Maroria, AOR
Mr. Atmaram N.S. Nadkarni, ASG
Ms. Chinmayee Chandra, Adv.
Mr. S.S. Rebello, Adv.
Ms. Arzu Paul, Adv.
Mr./Ms. Neeleshwar Pavani, Adv.
Ms. Riya Soni, Adv.
Ms. Shivikka Agrawal, Adv.
Mr. Gurmeet Singh Makker, AOR
Ms. Kirti R. Mishra, AOR
Ms. Apurva Upmanya, Adv.
Mr. Vikas Singh, Sr. Adv.
Mr. L.R. Singh, AOR
Mr. Satwik Misra, Adv.
Ms. Udita Singh, Adv.
Ms. Deepeika Kalia, Adv.
Ms. Shweta Priya, Adv.
Mr. Vivek Singh, Adv.
Mr. Mahesh Jethmalani, Sr. Adv.
Mr. Parag Tripathi, Sr. Adv.
Mr. Gopal Jain, Sr. Adv.
Mr. Navin Kumar, AOR
Mr. Manish Kharbanda, Adv.
Mr. Saurabh Ajay Gupta, Adv.
Ms. Natasha Sehrawat, Adv.
Mr. Pranav Sood, Adv.
Ms. Priya Singh, Adv.
Mr. Karanveer Singh, Adv.
Ms. Nikita Mehta, Adv.
Mr. Vineet Kumar, Adv.
Mr. Raj Kumar Mehta, AOR
Ms. Himanshi Andley, Adv.
UPON hearing the counsel the Court made the following

O R D E R

In the course of hearing, this Court on 16.01.2019 passed an order taking cognizance of the deleterious effect of mining on vegetation, after mining activities are over. In particular, it is observed that an area which is mined results in a complete elimination of grass which in turn denies fodder to the herbivores. The only solution can be re-grassing of such mined areas. It is not in dispute that re-grassing technology is available in this country.

We see no reason why the area which has been mined should not be restored so that grass and other vegetations including trees can grow in the mining area for the benefits of animals.

We are of the view that this can be achieved by directing the Union of India to impose a condition in the mining lease and a similar condition in the environmental clearance and the mining plan to the effect that the mining lease holders shall, after ceasing mining operations, undertake re-grassing the mining area and any other area which may have been disturbed due to their mining activities and restore the land to a condition which is fit for growth of fodder, flora, fauna etc.

The Union of India may devise appropriate methods for ensuring compliance of this condition after the mining activity is over at the cost of the mining lease holders. This condition shall be in addition to those conditions which have already been imposed for achieving the same purpose under the mine closure plan. This condition shall not be imposed in derogation of any conditions which are already in force.

Order accordingly.

The Union of India will report the action taken within a period of three weeks from today.

List the matter thereafter.

I.A. NOS.30915/2019 AND 153946/2019 (APPLNS. FOR DIRECTIONS AND SEEKING LEAVE TO PLACE ON RECORD ADDL. DOCUMENTS ON B/O MIDEAST INTEGRATED STEELS LTD.

Arguments concluded.

Orders reserved.

I.A. NO.186810/2019 (APPLICATION FOR DIRECTIONS) ON BEHALF OF M/S SARDA MINES PRIVATE LIMITED

Arguments concluded.

Orders reserved.

I.A. NO.157635/2019 (APPLICATION FOR DIRECTIONS) ON BEHALF OF ORISSA MINING CORPORATION LIMITED

Issue notice returnable after two weeks.

In the meantime, the respondent(s) may file their respective reply affidavits, if any.

(SANJAY KUMAR-II)
COURT MASTER (SH)

(INDU KUMARI POKHRIYAL)
ASSISTANT REGISTRAR

The post Common Cause vs. Union of India appeared first on B&B Associates LLP.

DATE: 20 January, 1987

Equivalent citations: AIR 1987 AP 171

Bench: P Choudary

ORDER

1. The broad question that falls for consideration is whether the Life Insurance Corporation of India and the Income-tax Department, Hyderabad, can legally use the land owned by them in a recreational zone within the city limits of Hyderabad for residential purposes contrary to the developmental plan published in G.O.Ms. No. 414 M.A. dt. 27-9-1975.

2. Although the City of Hyderabad was founded about 400 years ago in 1951 (sic) around the present area of the historic Charminar, its growth till recently was never regulated by settled laws. During these four centuries, the city had grown in all directions without any plan or design. Particularly after the formation of the State of Andhra Pradesh and in the aftermath of the second world war, this city had started growing wildly and almost as an uncultivated jungle. For the first time, its civic problems have, therefore, become unmanageable. Although by size and population, Hyderabad is today one of the country’s biggest cities, it is a city without any effective and satisfactory provision for elementary civic amenities to its inhabitants. Passers by praise it while its permanent residents curse it. Absence of a development plan coupled with the presence of an unimaginative and indifferent administration has been the cause of this malady. For too long a time rule of law is not fully enforced here. The city has been for long in the grip of several well known city landgrabbers. Being most of the time insensitive to the civil needs of the community and acting largely to the dictates of the power brokers, the Government has been often aiding and abetting this maladministration. Multi-storied buildings are allowed to be built up contrary to municipal bye-laws. Transgressings of municipal laws in general and the building bye-laws in particular are generally condoned. New areas are allowed to be developed even without any provision being made for the minimum civic needs. Today, on a rough estimate, the city has more than 100 slums spreading dirt, disease and squalor everywhere. Roaming herds of king size buffaloes and pale pathetic and hungry looking cows passing through the city thoroughfares and posing serious traffic hazards both to motorist and pedestrian are a regular sight of some of the city main roads. Probably nowhere else in India, the citizen’s fundamental right to move freely is so heavily trampled upon by the beast as it is done on the roads of this city. Regulation of city traffic is a neglected item of the traffic police. Much of traffic on the impossibly narrow roads of the city wends through when it moves at all on its own motion while the traffic police merrily watches and whistles aimlessly. The so-called local lorries occupy many a congested parts of the city roads without being charged for violation of laws and with the traffic police taking no preventive or prohibitive action. In most parts of the city drainage and sewerage systems even where they exist do not function well. Consequently, most of the city inhabitants are condemned to live in their houses without access to pure air or water and under unhygienic conditions. Spread over 120 square miles and having one hundred and above slum dwelling areas and not having enough of open spaces developed for the recuperation of the health of the city inhabitants, and going without bare minimum of civil amenities the city of Hyderabad is painfully dying a civic death. Large chunks of public land that could have been freely used and developed by the city corporation for the common purposes of the community are generally occupied and appropriated by the land grabbers, of late even Gods have joined this unwholesome game by establishing their abodes on the busy roads openly obstructing the free flow of traffic. Land grabbing makes the availability of public land for public purposes such as creation of recreational parks almost impossible. Notwithstanding the frequent claims made by the city corporation about Hyderabad city being a beautiful city, surely it is one of the ugliest cities of India.

3. It is in the above circumstances that a need for drawing a developmental plan was felt. Accordingly, a draft developmental plan, sometimes also called Master Plan, has been first conceived and published in the State Government gazette in G.O.Ms. No. 470 Municipal Administration, dated 6th Nov. 1973. The draft plan was published under the legal authority of the Hyderabad Municipal Corporation Act and the Developmental Rules made under that Act. That Draft Plan proposed and fixed the various uses to which each bit of the land situated in the Hyderabad city owned either privately or publicly could be put by the owners. For that purpose, the various parts of the city were divided into a residential, commercial, recreational or other areas. The approval of such a draft plan makes the plan final and legally binding. It would not then matter whether the land belongs to a private individual or to the State. The draft plan once approved would have the undoubted effect of restricting and curtailing even denying the rights of enjoyment of the land which otherwise belongs to the land owners. An approved draft plan can also affect the rights of the inhabitants of those areas to live in peacefully. The law, therefore, requires the draft plan to be published inviting objections or suggestions to those proposals. The draft plan published in the above G.O.Ms. No. 470 went through all these stages. After expiry of the time stipulated for receipt of objections and suggestions, if any, the Government, acting under S. 464(1) of the Hyderabad Municipal Corporation Act, 1955, gave its final approval to the above draft developmental plan. In G.O.Ms. No. 414 Municipal Administration dated 27th Sept., 1975, the Government gave its sanction to the developmental plan. The Map No. 2 and the explanatory reports that accompanied the plan had identified the areas and the specific uses to which the land in those areas could be put. Thus a final developmental plan restricting the user of the lands in city of Hyderabad by force of law has come into existence. We are here concerned with the user of a small bit of a land adjoining the tank bund area. According to the above developmental plan, land admeasuring Acs. 151.55 cents and situated below the Tank Bund and adjacent to Ram Gopal Mills on either side of Hussainsagar surplus nalla is reserved for laying a recreational park. Thereby the use of the above mentioned land of Acs. 151.55 cents were fixed. That land of Acs. 151.55 cents could be used under the above G.O.Ms. No. 414 only as a part of a recreational park. That land could not be used either as a residential area or commercial area or industrial area. In law an approved developmental plan operates both as a prohibition against the owners putting their land for any impermissible use. It also operates as a permission to use the lands for the purpose indicated in the developmental plan. As the above extent of Acs. 151.55 cents of land situated below the Tank Bund and adjacent to Ram Gopal Mills on either side of Hussainsagar nalla is shown as a part of the recreational park, the owners of those lands situated within that area, whether they be private owners or public owners cannot legally use that land except as a recreational park.

4. So much cannot seriously be disputed. Yet the Life Insurance Corporation and the Income-tax Department are claiming rights to use a part of this very area for residential purposes contrary to the above plan on the basis of their ownership. What seems to have led these parties to this untenable position is the somewhat confusing history of acquisition of some of this land. Long prior to the issuance of the above G.O.Ms. No. 414 making a developmental plan providing for the creation of a recreational park in an area of Acs. 151.55 cents, Government planned for the creation of a much larger park extending over an extent of Acs. 200.00. For that purpose it had proposed to acquire the necessary extent of the land. In fact a Notification under S. 4(1) proposing to acquire the necessary extent of land for that purpose was even published. But in G.O.Rt. No. 725 dated 9-1-1969 published under S. 6 of the Land Acquisition Act, the Government declared its intention to acquire only a smaller extent of Acs. 99.10 guntas. Accordingly, only that extent of land was acquired. But on physical verification it was found that the land was measuring actually Acs. 101.19 guntas. What is, however, important to note is the fact that the above extent of Acs. 101.19 guntas is a part of the above mentioned Acs. 151.55 cents demarcated by the above developmental plan to be used as a recreational park. Subsequently, an extent of Acs. 37.00 and odd out of the above extent of Acs. 151.55 cents was acquired under the Land Acquisition Act for the purpose of enabling the Life Insurance Corporation of India to build houses. A small part of the above Acs. 37.00 was later sold by the Life Insurance Corporation of India to the Income-tax Department. The above are the facts which probably led the Life Insurance Corporation and the Income-tax Department to assert their right to build houses. But clearly the acquisition of the land by the Life Insurance Corporation of India or the Income-tax Department is of no relevance or significance for deciding the question that falls for consideration in this case. For the purpose of this writ petition all that is necessary and relevant to be noticed is that the entire extent of Acs. 37.00 above mentioned is a part of the area demarcated for recreational park by the developmental plan. It must be stressed that the purpose of compulsory acquisition proceedings which is to transfer compulsorily the title to private property from one owner to another owner does not in any way alter the binding nature of the developmental plan and its decision to create a recreational park. Whether a particular piece of land is compulsorily acquired or is sold voluntarily or is allowed to be in the hands of the previous owners, the direction of the developmental plan dictating the uses to which that particular piece of land could be put will prevail and will have to be honoured. Accordingly, the question of acquisition of the land can be omitted as irrelevant from our consideration.

5. Subsequent to the acquisition of Acs. 101.19 guntas the Hyderabad Municipality has developed an area of about Acs. 50.00 as a park called ‘Indira Park’. There can be no objection to this because that action of the Hyderabad Municipal Corporation is in conformity with the requirements of the developmental plan published in G.O.Ms. No. 414. It is also in conformity with the requirements of S. 112 of the Hyderabad Municipal Corporation Act. The developmental plan has thus been put into force in part. But thereafter the Hyderabad Municipality had not only failed and faltered in carrying out its statutory duties of developing the rest of the area into a recreational park but it has also started acting contrary to the dictates of the above mentioned S. 112 of the Hyderabad Municipal Corporation Act and also to the developmental plan. It has already allowed the Life Insurance Corporation of India to build a few residential houses in the above extent of Acs. 37.00 of land acquired by the Life Insurance Corporation of India. Now the Income-tax Department also wants to build houses in an extent of 10 acres and odd which it has recently acquired from the Life Insurance Corporation of India. Judicial notice may also be taken of the fact that there are several other structures built in this area. These clearly constitute contravention of the law laid down by developmental plan regarding the land uses in the area. Those contraventions gave rise to the filing of this writ petition.

6. The present writ petition has been filed by some of the residents and rate-payers of the Hyderabad Municipal Corporation who live around the abovementioned area demarcated by the developmental plan as a recreational park. Their complaint is that the balance of about Acs. 50.00 of land out of the aforementioned Acs. 151.55 cents which is shown by the developmental plan as a part of the recreational park ought not to be allowed to be used by the Life Insurance Corporation or Income-tax Department as a residential area. This writ petition is, therefore, filed to direct the Municipal Corporation of Hyderabad and the Bhagyanagar Urban Development Authority, Hyderabad, to develop the entire area comprising of the land bounded in the West by Tank Bund, in the East by Ashoknagar Colony, in the North by D. B. R. Mills and in the South Domalguda locality as a public park in accordance with the approved developmental plan.

7. The petitioners say that many residents of the twin cities are economically backward and poor people and are having insufficient accommodation to live in. According to the affidavit allegations, the majority of inhabitants of Hyderabad have no open spaces left in front of their houses to relax and recreate themselves and maintain their health. The petitioners additionally argue, though it is strictly not necessary for obtaining the relief in the writ petition, that as the above extent of Acs. 101.19 guntas of land has been acquired with the express object of developing that area into a park and for the purpose of promoting the well-being and welfare of the residents of the twin cities in general and of those belonging to the weaker sections of the society in particular, the Hyderabad Municipal Corporation is bound in law not to allow any part of that land to be used for any purpose other than the one the developmental plan had allocated to it. The petitioners referred to S. 112 of the Hyderabad Municipal Corporation Act, 1955, whereunder a mandatory duty is imposed on the Hyderabad Municipal Corporation to make adequate provision for public parks, gardens, playgrounds and recreational grounds. The petitioners say that the reservation of the above area under the developmental plan for recreational park renders the omission on the part of the Municipal Corporation to develop that area fully as a failure to carry out its duty both under S. 112 of the Hyderabad Municipal Corporation Act and under the developmental plan. Accordingly, they argue that it is the statutory obligation of the Hyderabad Municipal Corporation to develop the abovementioned area into a recreational zone.

8. To this writ petition as originally filed only the Hyderabad Municipal Corporation and the Bhagyanagar Urban Developmental Authority and the Life Insurance Corporation of India were added as party-respondents. By 14th of Oct. 1985, the Hyderabad Municipal Corporation had been asserting that the State Government had granted exemption from the above developmental plan to a portion of the above mentioned land of 101 and odd acres which was acquired from private owners for the specific purpose of developing it as a park. It was in these circumstances the State Government was impleaded as a party-respondent so as to find out the correctness of the assertion of the Municipal Corporation. The State Government, after taking several adjournments, had filed its counter into this Court on 22nd of April, 1986. Earlier the Hyderabad Municipal Corporation filed its counter on 21st of Feb., 1986. In the month of March, 1986, the Life Insurance Corporation of India had filed its counter. The Income-tax Commissioner had impleaded himself as a party-respondent on 8th July, 1986. While this writ petition is pending in this Court, he has purchased a small extent of land which is part of the area shown by the Developmental plan as a recreational park. He has filed his counter on 21st of July, 1986. The Bhagyanagar Urban Development Authority was the last to file its counter-affidavit on 17-9-1986.

9. There is no serious dispute that in the above developmental plan published under G.O.Ms. No. 414 an extent of Acs. 151.55 cents and situated within the abovementioned boundaries is shown as a recreational park. In para 2 of the counter-affidavit of the Hyderabad Urban Development Authority it was admitted that “The development plan was approved by the Municipal Corporation in its resolution No. 307 dt. 1-8-1970 and it was notified by the Government in G.O.Ms. No. 470 dated 6-11-1973 for public objection and suggestion, and after examining all suggestions and objections, the Government approved the plan under G.O.Ms. No. 414 dated 27-9-1975. It was notified and came into force from 1-10-1975.”

In the same para, the Hyderabad Urban Development Authority said.

“In the Master Plan of 1975 under planning division No. 3 the vacant land below Tank Bund adjacent to Ramgopal Mills on either side of Hussain Sagar surplus nalla to an extent of Acs. 151.55 is reserved for recreation purposes as park and open spaces. A major part of the land was acquired and Indira Park was developed therein.”

10. The State Government in its counter-affidavit also admits the above material facts. In para 2 of the counter-affidavit of the State Government, it is said that, “In G.O.Rt. No. 877 M.A., dated 17-10-1986, the Government approved the draft notification under S. 4(1) of the Land acquisition Act, 1894 submitted by the Joint Collector, Hyderabad, for acquisition of Acs. 231.00 of land in Daira, Ganganmahal, Bakaram and Lingampally villages of Hyderabad District, below tank bund for National Park. The draft notification was published at pages 19-24 in the Andhra Pradesh Gazatte No. 44-A, dated 10-11-1966.”

11. The State Government in para 3 of the same counter-affidavit said, “The Standing Committee of the Corporation recommended to the General Body of the Corporation to acquire only Acs. 100.00 out of those Acs. 231.00 by deleting certain areas in respect of which lay out plans were submitted. Thereupon the General Body in its Resolution No. 3 dated 6-11-1968 resolved to delete land covered by 16 survey numbers and sent proposals with plans for confining the acquisition to an extent of Acs. 100.00 only out of the already notified area…… The Government considered those objections and overruled them and issued G.O. Rt. No. 25, M.A. dated 9-1-1969 approving the draft declaration under S. 6 of the Land Acquisition Act which was sent by the Board of Revenue which was in existence at that time for an extent of Acs. 99.19 guntas and the same was published in the extraordinary issue of the Andhra Pradesh Gazette dated 10-1-1969. But on actual verification of the above land, it was found to be Acs. 101.19 guntas instead of Acs. 99.19 guntas.”

12. The Hyderabad Municipal Corporation in its counter-affidavit had admitted the above facts. In para 6 of the counter-affidavit of the Hyderabad Municipal Corporation there is a significant admission. There it is said, “I admit the averments in paras 5 to 10 of the affidavit to the extent that originally the Government in Master Plan has shown 231 acres of land as recreational zone.”

13. From the above extracted statements it is clear that the above extent of Acs. 101.19 guntas which was acquired by the Government is a part of Acs. 151.55 cents which the developmental plan allocated to be developed as a recreational park. The specifications and details of the developmental plan published in G.O.Ms. No. 414 Municipal Administration dated 27th September, 1975 clearly attest to this fact. It is, however, true that the Life Insurance Corporation of India had acquired an extent of nearly Acs. 37.00 in the villages of Gaganmahal, Daira and Bagh Lingampally for promoting housing schemes and took possession of it on 12th of March, 1974 and subsequently and extent of Acs. 10.95 out of the above extent of Acs. 37.00 acquired by the Life Insurance Corporation of India has been sold and conveyed to the Income-tax Department while this writ petition was pending. Possession of that land was also taken by the Income-tax Commissioner from the Life Insurance Corporation on 16-9-1986 and the Life Insurance Corporation had also constructed a few residential houses. But in my opinion these facts are of no legal significance for our purpose.

14. From the facts stated above, it is clear that Acs. 151.55 cents has been reserved, according to the developmental plan for purposes of recreational park and that a part of that land has been later acquired by the Life Insurance Corporation of India and the Income-tax Commissioner for building residential houses. Neither in the counter-affidavit of the Life Insurance Corporation norin the counter-affidavit of the Income-tax Commissioner the fact of publication of a draft and final developmental plan with respect to Acs. 151.55 is specifically denied. In fact, the various public documents including the maps make the taking of such a plea by any party almost impossible. What is, therefore, ascertained by these two respondents is their title to this land. The Life Insurance Corporation of India in its counter-affidavit has boldly asserted, “This Hon’ble Court has no jurisdiction or authority in law to issue any direction to the 1st respondent to encroach upon the land purchased by this respondent”. There is no doubt that the Life Insurance Corporation is greatly mistaken in making the above assertion. The question in this writ petition is not, who owns the land that is shown as a part of the recreational zone by the developmental plan but whether that land owned either by the Life Insurance Corporation of India or by the Income-tax Department or by any other person or body is covered by a developmental plan and is allocated to be used as a recreational park. As I have noticed above, the setting up of such a case is almost impossible in this case. As a fact neither of these respondents have set up such a case specifically in their counter-affidavits although there is a vague and unspecified assertion in the counter-affidavit of the Life Insurance Corporation of India. On the other hand, there is positive affidavit evidence in the respondents’ counter-affidavits admitting the preparation and publication of the developmental plan covering this very area of Acs. 151.55. In this connection a letter dated 3rd of July, 1981 written by the Special Officer, Municipal Corporation of Hyderabad and filed into the Court as a material exhibit by the Income-tax Commissioner himself should be noticed. Material part of that letter reads as follows :

“Moreover in the year 1975, the developmental plan for twin cities of Hyderabad and Secunderabad has come into force. In the developmental plan, the entire stretch of Land from lower Tank Bund Road to Hussain Sagar surplus nall has been earmarked for recreational zone wherein residential houses are not permitted in normal course.”

The above letter written in 1981 shows that the land of Acs. 37.00 acquired by the Life Insurance Corporation of India is a part of the Acs. 151.55 cents covered by the developmental plan published in G.O.Ms. No. 414.

15. From the above the conclusion that the land of Acs. 151.55 cents situated below the Tank Bund and adjacent to Ram Gopal Mills on either side of Hussain Sagar surplus nall is declared by the developmental plan published in G.O.Ms. No. 414 as a recreational park and that 3, 7 and odd acres which was acquired by the Life Insurance Corporation of India is a part of the above extent of Acs. 151.55 cents covered by the development plan becomes unavoidable and inevitable. There is overwhelming uncontradicted documentary evidence in support of that conclusion. Many parties admit the fact in their counter-affidavits.

16. On the basis of the above conclusion it cannot be seriously contended that the Life Insurance Corporation or the Income-tax Department can use the land which they have acquired and which is presently under their occupation for the purpose of constructing residential quarters or for any other purpose except for the purpose of a recreational park.

17. It is undoubted that under the common law ownership which is a bundle or rights carries with it the right to put the property to any use the owner chooses. Under the common law, therefore, the Life Insurance Corporation as well as the Income-tax Department could not have been restrained from constructing residential quarters on the above 37 acres plot. Those bodies, would have been well within their legal powers as owners of their properties to build residential houses. But that ownership right is now curtailed by a statutory provision contained in the developmental plan. Putting the above 37 acres to residential use would be clearly contrary to the restrictions which the developmental plan had imposed on the above land. Developmental plan had forbidden any user of that land except as recreational zone, the common law rights of the owners must give in to the statutory restrictions. The common law use and enjoyment of these ownership rights should, therefore, be subject to the requirements of the statutory law of the developmental plan. Municipal laws are the earliest examples of statutory laws restricting the use of property rights. Chapter XIII of the Hyderabad Municipal Corporation Act, 1955 and more particularly S. 464 of that Act which is now repealed and replaced by the provisions of the Andhra Pradesh Urban Areas (Development) Act, 1975 are of that nature. They provide in the interests of the general welfare of the community for the preparation and enforcement of development plans. Those laws require conducting of elaborate survey of the civil needs of the inhabitants and feasibility and practicability of the various land uses and the prospective growth of the city before demarcating the land for different purpose. According to that law the developmental plans should define the various zones into which the area sought to be developed may be divided and should also indicate the manner in which the land in each zone is proposed to be used. The dominant intention of these statutory provisions is to plan for the present and future development of the whole area by restricting and regulating the ownership rights of the landlords under the common law. Those owners can no longer enjoy their unrestricted right available to them under common law to use their lands as they desire. Once a developmental plan has been prepared and published in accordance with law, the owners of the area concerned can only use their property in accordance with and in conformity with the provisions of the developmental plan. Once the developmental plan has been legally and finally published, no one in the area can use the land contrary to the provisions of the developmental plan. In this case, it has already been shown that the developmental plan has been published in accordance with law in the abovementioned G.O.Ms. No. 414. We have also seen that the entire extent of Acs. 151.55 cents of land abutting the Tank Bund and situated adjacent to Ram Gopal Mills on either side of Hussain Sagar surplus nalla was reserved in the above G.O.Ms. No. 414 by the developmental plan for the purpose of recreational park. In view of the above, the assertion of the Life Insurance Corporation of India or that of the Income-tax Department that they have a legal right to build residential houses on the land they own because they own that land should be rejected as being contrary to all accepted principles of law. In using or attempting to use the land which they have acquired within the recreational zone as residential area, these bodies or authorities are clearly violating the provisions of the developmental plan and are acting contrary to law. Because the developmental plan is law, it should also be held that the State Government and the Municipal Corporation of Hyderabad and the Hyderabad Urban Development Authority are equally bound to implement and enforce the developmental plan. Rule of law requires these authorities to implement the developmental plan. These legal authorities cannot, therefore, permit either the Life Insurance Corporation of India or the Income-tax Department to use any part of the abovementioned Acs. 151.55 cents of land for any purpose other than the one indicated in the developmental plan. It may be noted that the Special Officer of the Hyderabad Municipal Corporation in his letter of 1981 written to the State Government had shown long time back complete awareness of this plain legal position. His objection to use of the above land by the Income-tax Department for residential purposes is based solely on the ground that the use of this land in the developmental plan is shown as recreational park and that would not be permissible to use such a land as a residential area. It is as well that I make it clear that the declarations regarding demarcations of Land user contained in a developmental plan published under statutory authority are neither pious aspirations nor empty promises. Such declarations are legally enforceable. Those declarations impose legal obligations on the land owners and the public authorities. The public authorities should enforce those obligations. If they do not, it becomes the solemn duty of this Court to compel those authorities to perform their mandatory obligations. Law should not be allowed to be mocked by the haughty and the mighty. I, therefore, declare that the use of the above area for the construction of residential houses by the Life Insurance Corporation of India or the Income-tax Department, is quite clearly illegal and contrary to law.

18. The argument that the above land of 37 acres and odd had been acquired for a public purpose of building houses by the Life Insurance Corporation of India and that, therefore, the Life Insurance Corporation or its transferee can build houses on that land even acting contrary to the developmental plan has no merit or meaning. An element of public purpose is a necessary condition for the exercise of that inherently unjust powers of eminent domain, but is otherwise irrelevant for deciding the question whether the Life Insurance Corporation can disregard or ignore a developmental plan. It is relevant only for validating a compulsory transfer of title. It has the least relevance in the context of the restrictions to be imposed on the land user in accordance with the terms of the developmental plan. That a transferee cannot have greater rights than the original owner is too plain a proposition to require elaboration.

19. Acting in utter contempt of rule of law, the State Government under G.O.Rt. No. 449, Municipal Administration, dated 18-3-1986 relaxed the provisions of R. 10(1) of the layout Rules with respect to the maintenance of the width of the roads. Acting similarly the State Government also relaxed the provisions of bye-laws 34(2) and 70 of the Building bye-laws, 1972 with respect to the maintenance of the height of the kitchen and bed-rooms etc. But those relaxations would be wholly ineffective and inoperative in an area reserved to be used by the developmental plan solely for recreational purposes. Such relaxations made by the State Government would have been fruitful if made with respect to lands outside the recreational zone where it is permissible to build residential buildings. The above relaxation orders could not be construed as an amendment to the developmental plan either. Once approved, the developmental plan can only be altered by the well settled statutory method mentioned in S. 12 of the A.P. Urban Areas (Development) Act, 1975. Under that section, the A.P. Urban Areas Development Authority can make modification without affecting important alterations in the character of the developmental plan. Similarly, the Government’s power to make modifications to the developmental plan in hedged by several limitations. In either case, a prior notice should be published inviting objections and suggestions from all with respect to any amendments proposed to be made to a developmental plan. The objections so received should be considered by the proposer of the draft amendments. This statutory obligation to hear and dispose of the objections shows that the law treats the alteration of a developmental plan as affecting the rights and valuable interests of the city inhabitants. There is thus a lis present which can be dispose of only by applying judicial norms. Modifications to the approved developmental plan cannot, therefore, be made except for substantial reasons. In such a scheme of things policy considerations and personal predilections and intention to favour powerful bodies like Life Insurance Corporation or Income-tax Department can have no place. Further every modification to the developmental plan validly approved should be published in a reasonable manner. It is nobody’s case here that the Government has ever published any draft modification or invited any objections or otherwise followed the procedure dictated by S. 11 of the A.P. Urban Areas (Development) Act, 1975 or it published a finally modified developmental plan. Thus it must be held that the developmental plan published in G.O.Ms. No. 414 still holds the field even to this day. Inasmuch as the abovementioned G.O.Rt. No. 449 dated 18th March, 1976 was not even remotely connected with the scheme of S. 11 of the A.P. Urban Areas (Development) Act, that G.O. cannot be considered to be valid or efficacious to alter the land uses fixed by the developmental plan. Relaxing the Layout rules and the Building bye-laws has no relevance to the enforcement of developmental plans. Such a relaxation as the one made by the Government in G.O.Rt. No. 449 can only apply to the lands which are permitted to be used by the developmental plan as residential areas. Where there is a legal prohibition regarding the use of certain areas except as a recreational park, the relaxations granted under the Layout Rules and the Building bye-laws cannot lift those prohibitions. They do not apply at all because the layout rules and the building bye-laws would not apply to areas where there is no (sic) legal prohibition to build residential houses.

Law of Ecology and Environment :

20. The matter may be examined from the view point of our legal and constitutional obligation to preserve and protect our ecology and environment.

21. Under the common law, ownership denotes the right of the owner to possess the thing which he owns and his right to use and enjoy the thing he owns. That right extends even to consuming, destroying or alienating the thing. Under the doctrine of right to choose the uses to which a owner can put his land belongs exclusively to his choice. The right of use thus becomes inseparable from the right of ownership. The thrust of this concept of individual ownership is to deny communal enjoyment of individual property. This private law doctrine of ownership is comparable in its width and extent to the public law doctrine of sovereignty.

22. Into the domain of this doctrine of ownership, it is the collectivist jurisprudence of municipal administration that has made its first in roads. But in the recent past the law of ecology and environment has even more seriously shaken its roots. Under the powerful impact of the nascent but the vigorously growing law of environment, the unbridled right of the owner to enjoy his piece of land granted under the common law doctrine of ownership is substantially curtailed.

23. The objective of the environmental law is to preserve and protect the nature’s gifts to man and woman such as air, earth and atmosphere from pollution. Environmental law is based on the realisation of mankind of the dire ophysical necessity to preserve these invaluable and none too easily replenishable gifts of mother nature to man and his progeny from the reckless wastage and rapacious appropriation that common law permits. It is accepted that pollution “is a show agent of death and if it is continued the next 30 years as it has been for the last 30, it could become lethal”. (See Krishna Iyer’s Pollution and Law). Stockholm declaration of United Nations on Human Environment evidences this human anxiety :-

“The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystem, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate. . . . . . . Nature conservation including wildlife must therefore receive importance in planning for economic development.”

Similarly, the African Charter on Human and People’s rights declares that “all peoples shall have the right to a general satisfactory environment favourable to their development”. Judicially responding to this situation, Justice Douglas has suggested that environmental issues might be litigated in the name of “the inanimate object about to be… deposited” with those who have an “intimate relation” with it recognised as its legitimate spokemen. Common law being basically blind to the future and working primarily for the alienated good of the individual and operating on the cynical theory that because posterity has proved its utter inadequacy to achieve the urgent task of preservation and protection of our ecology and environment. Roscoc Pound blamed the common law for its serious social shortfalls. He wrote :-

“Men have changed their views as to the relative importance of the individual and of society; but the common law has not. Indeed, the common law knows individuals only….. It tries questions of the highest social import as mere private controversies between John Deo and Richard Deo. And this compels a narrow and one sided view.”

Rejecting these individualistic legal theories of common law that are found to be incompatible with the basic needs and requirements of the modern collective life environmental laws all over the world lay down rules for the preservation of environment and prevention of pollution of our atmosphere, air, earth and water. Our Parliament has recently enacted the Environment (Protection) Act (Act No. 29 of 1986) for the purpose of protecting and improving our environment. It widely distributed powers on all those who are traditionally classified as not aggrieved persons to take environmental disputes to Courts. This is clearly in harmony with our Constitutional goals which not only mandate the State to protect and improve the environment and to safeguard the forests and wildlife of the Country (Art. 48A); but which also hold it to be the duty of every one of our citizens to protect and improve the natural environement including forests, lakes, rivers and wildlife and to have compassion for living creatures (Art. 51-A(g)).

24. From the above it is clear that protection of the environment is not only the duty of the citizen but it is also the obligation of the State and all other State organs including Courts. In that extent, environmental law has succeeded in unshackling man’s right to life and personal liberty from the clutches of common law theory of individual ownership. Examining the matter from the above constitutional point of view, it would be reasonable to hold that the enjoyment of life and its attainment and fulfilment guaranteed by Art. 21 of the Constitution embraces the protection and preservation of nature’s gifts without life cannot be enjoyed. There can be no reason why practice of violent extinguishment of life alone should be regarded as violative of Art. 21 of the Constitution. The slow poisoning by the polluted atmosphere caused by environmental pollution and spoilation should also be regarded as amounting to violation of Art. 21 of the Constitution. In R. L. & E. Kendra, Dehradun v. State of U. P., , the Supreme Court has entertained environmental complaints alleging that the operations of lime-stone quarries in the Himalayan range of Mussoorie resulted in depredation of the environment affecting ecological balance. In R. L. & E. Kendra, Dehradun v. State of U. P., the Supreme Court in an application under Art. 32 has ordered the closure of some of these quarries on the ground that their operations were upsetting ecological balance. Although Art. 21 is not referred to in these judgments of the Supreme Court, those judgments can only be understood on the basis that the Supreme Court entertained those environmental complaints under Art. 32 of the Constitution as involving violation of Art. 21’s right to life.

25. It, therefore, becomes the legitimate duty of the Courts as the enforcing organs of Constitutional objectives to forbid all action of the State and the citizen from upsetting the environmental balance. In this case the very purpose of preparing and publishing the developmental plan is to maintain such an environmental balance. The object of reserving certain area as a recreational zone would be utterly defeated if private owners of the land in that area are permitted to build residential houses. It must, therefore, be held that the attempt of the Life Insurance Corporation of India and the Income-tax Department to build houses in this area is contrary to law and also contrary to Art. 21 of the Constitution.

26. Accordingly, I allow this writ petition and direct a mandamus to issue forbidding the Life Insurance Corporation of India and the Income-tax Department, Hyderabad, from raising any structures or making any constructions or otherwise using the land referred to above for residential purposes. I also direct the State Government of Andhra Pradesh, the Hyderabad Municipal Corporation and the Bhagyanagar Urban Development Authority, Hyderabad, to enforce the law as contained in the developmental plan in G. O. Ms. No. 414 and to prevent and forbid the Life Insurance Corporation of India and the Income-tax Department, Hyderabad, from using the above land for residential purposes. I also direct the State Government of A. P., the Hyderabad Municipal Corporation and the Bhagyanagar Urban Development Authority, Hyderabad, to remove within sixty days any structures that might have been raised by the Life Insurance Corporation of India or the Income-tax Department, Hyderabad, during the pendency of this writ petition in this Court. I, however, make it clear that any residential houses or structures which have been built prior to the filing of this writ petition will not be covered by the judgment.

27. The writ Petition is accordingly allowed with costs. Advocate’s fee Rs. 500/-.

28. Petition allowed.

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SUBHASH KUMAR …PETITIONER
Vs.
STATE OF BIHAR AND ORS. …RESPONDENT

DATE OF JUDGMENT: 09/01/1991

BENCH: SINGH, K.N. (J) OJHA, N.D. (J)

CITATION:
1991 AIR 420 1991 SCR (1) 5
1991 SCC (1) 598 JT 1991 (1) 77
1991 SCALE (1)8

ACT:

Water (Prevention and Control of Pollution)Act, 1974:

Sections 17, 24, 25 and 26.

Constitution of India, 1950: Article 21-Right to live includes right to enjoyment of pollution free water and air- A citizen has a right to invoke Article 32 for removing pollution.

Article 32- Writ petition in public interest-Allegation that West Bokaro Collieries and Tata Iron and Steel Company are polluting the river Bokaro by discharging slurry from their washeries into the river-No material to substantiate the allegations-Held petition is not in public interest but for personal interest.

Public Interest Litigation-Should be resorted to by a person genuinely interested in the protection of society- Personal interest cannot be enforced in the garb of public interest litigation-Entertainment of petitions satisfying personal grudge is abuse of process of the Court Duty of the court is to discourage such petitions.

HELD: 1. Article 32 is designed for the enforcement of Fundamental Rights of a citizen by the Apex Court. It provides for an extra-ordinary remedy to safeguard the fundamental rights of a citizen. Right to life is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life. A petition under Article 32 for the prevention of pollution is maintainable at the instance of affected persons or even by a group of social workers or journalists. But recourse to proceeding under Article 32 of the Constitution should be taken by person genuinely interested in the protection of society on behalf of the community. Public interest litigation cannot be invoked by a person or body of persons to satisfy his or its personal grudge and enmity. If such petitions under Article 32 are entertained it would amount to abuse of process of the Court, preventing speedy remedy to other genuine petitioners from this Court. Personal interest cannot be enforced through the process of this Court under Article 32 of the Constitution in the garb of a public interest litigation. Public interest litigation contemplates legal proceeding for vindication or enforcement of fundamental rights of a group of persons or community which are not able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law. A person invoking the jurisdiction of this Curt under Article 32 must approach this Court for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity. It is duty of this Court to 7 discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extra-ordinary jurisdiction of this Court for personal matters under the garb of the public interest litigation. [13C-H; 14A] Bandhua Mukti Morcha v. Union of India, [1983] INSC 206; [1984] 2 SCR 67; Sachindanand Pandey v. State of West Begal, [1987] INSC 43; [1987] 2 SCC 295; Ramsharan Autyanuprasi & Anr. v. Union of India & Ors., [1989] Suppl. 1 SCC 251; Chetriya Pardushan Mukti Sangharsh Samiti v. State of U.P. & Ors., [1990] INSC 231; [1990] 4 SCC 449, referred to.

2. The present petition is not filed in public interest instead the petition has been made by the petitioner in his own interest. Infact there is intrinsic evidence in the petition itself that the primary purpose of filing this petition is not to serve any public interest instead it is in self-interest. The petitioner has been purchasing slurry from the respondents for the last several years. With the passage of time he wanted more and more slurry but the Company refused to accept his request. He removed the Company’s slurry in an unauthorised manner for which criminal cases are pending against him and his brother. Since the respondent company refused to sell additional slurry he entertained a grudge against the company and in order to feed fat his personal grudge he resorted to several proceedings against the company including the present one. The prayer for the interim relief made by the petitioner i.e. permitting him to arrest/collect sludge/slurry flowing out of the washeries of the respondents with a direction to the State of Bihar, its officers and other authorities for not preventing him from collecting the sludge/slurry and transporting the same also collecting the sludge/slurry and transporting the same clearly indicates that he is interested in collecting the slurry and transporting the same for the purposes of his business. Therefore, there is no good reason to accept the petitioner’s allegation that the water of the river Bokaro is being polluted by the discharge of sludge or slurry into it form the washeries of the respondent-company. On the other hand it is evident from records that the State Pollution Control Board has taken effective steps to check the pollution. [14B;12F-G] Kundori Labours Cooperative Society Ltd. & etc. etc. v.

State of Bihar & Ors., AIR 1986 Patna 242; Bharat Cokin Coal Ltd. v. State of Bihar & Ors. [1990] INSC 238; [1990] 3 SCR 744= Judgments Today, vol. 3, 1990 SCC 533, referred to.

ORIGINAL JURISDICTION: Writ Petition (C) No. 381 of 1998.

8 (Under Article 32 of the Constitution of India).

S.K. Sinha for the Petitioner.

D. Goburdhan, Ms. A. Subhashini, K.K. Lahiri, Ms. Lira Goswami and D.N. Misra for the Respondents.

The Judgement of the Court was delivered by SINGH,J. We heard the arguments in detail on 13.12.

1990 and dismissed the petition with costs amounting to Rs.

5,000 with the direction that the reasons shall be delivered later on. We are, accordingly, delivering our reasons.

This petition is under Article 32 of the Constitution by Subhash Kumar for the issue of a writ or direction directing the director of Collieries, West Bokaro Collieries at Ghatotand, District Hazaribagh in the State of Bihar and the Tata from & Steel Co. Ltd. to stop forthwith discharge of slurry/sludge from its washeries at Ghatotand in the District of Hazaribagh into Bokaro river. This petition is by way of public interest litigation for preventing the pollution of the Bokaro river water from the sludge/slurry discharged form the washeries of the Tata Iron & Steel Co.

Ltd. The petitioner has alleged that the Parliament has enacted the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as `the Act’) providing for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment of Board for the prevention and control of water pollution. Under the provisions of the Act the State Pollution Control Board constituted to carry out functions prescribed under Section 17 of the Act which among other things provide that the Board shall inspect sewage or trade effluents and plants for the treatment of sewage and trade effluents and to review plans, specifications or other data set up for the treatment of water and to lay down standards to be complied with by the persons while causing discharge of sewage or sullage. Section 24 of the Act provides that no person shall knowingly cause or permit any poisonous, noxious or polluting matter to enter into any stream or well, which may lead to a substantial aggravation of pollution. The petitioner has asserted that Tata Iron and Steel Co-respondent No.5 carries on mining operation in coal mines/washeries in the town of Jamshedpur. These coal mines and collieries are known as West Bokaro Collieries and the Collieries have two coal washeries where the coal after its extraction from the mines is brought and broken into graded pieces and there- 9 after it is processed for the purpose of reducing its ash contents. A chemical process is carried out which is known as `froth floatation process’. Under this process the graded coal is mixed with diesel oil, pine oil and many other chemical ingredients and thereafter it is washed with the lacs of gallons of water. The end water is washed coal with reduced quantity of ash content fit for high graded metallurgical process for the purposes of manufacture of steel. In the process of washing large quantity of water is discharged through pipes which carry the discharged water to storage ponds constructed for the purpose of retaining the slurry. Along with the discharged water, small particles of coal are carried away to the pond where the coal particles settle down on the surface of the pond, and the same is collected after the pond is de-watered. The coal particles which are carried away by the water is called the slurry which is ash free, it contains fine quality of coal which is used as fuel.

The petitioner has alleged that the surplus waste in the form of sludge/slurry is discharged as an effluent from the washeries into the Bokaro river which gets deposited in the bed of the river and it also gets settled on land including the petitioner’s land bearing Plot No.170. He was further alleged that the sludge or slurry which gets deposited on the agricultural land, is absorbed by the land leaving on the top a fine carbonaceous product or film on the soil, which adversely affects the fertility of the land.

The petitioner has further alleged that the effluent in the shape of slurry is flown into the Bokaro river which is carried out by the river water to the distant places polluting the river water as a result of which the river water is not fit for drinking purposes nor it is fit for irrigation purposes. The continuous discharge of slurry in heavy quantity by the Tata Iron & Steel Co. from its washeries posing risks to the health of people living in the surrounding areas and as a result of such discharge the problem of pure drinking water has became acute. The petitioner has asserted that inspite of several representations, the State of Bihar and State Pollution Control Board have failed to take any action against the Company instead they have permitted the pollution of the river water. He has further averred that the State of Bihar instead of taking any action against the Company has been granting leases on payment of royalty to various persons for the collection of slurry. He has, accordingly, claimed relief for issue of direction directing the respondents which include the State of Bihar, the Bihar Pollution Control Board, Union of India and Tata Iron & Steel Co. to take immediate steps prohibiting the pollution of Bokaro river water from the discharge of slurry into the Bokaro river and to take further action under provisions of the Act against the Tata Iron & Steel Co.

10 The respondents have contested the petition and counter-affidavits have been filed on behalf of the respondent Nos. 2, 4 and 5-State of Bihar, State Pollution Board, Directors of Collieries and Tata Iron & Steel Co.

Ltd. In the counter-affidavits filed on behalf of the respondents, the petitioner’s main allegation that the sludge/slurry is being discharged into the river Bokaro causing pollution to the water and the land and that the Bihar State Pollution Board has not taken steps to prevent the same is denied. In the counter-affidavit filed on behalf of the Bihar State Pollution Board it is asserted that the Tata Iron & Steel Co. operates open case and underground mining. The Company in accordance to Sections 25 and 26 of the Water (Prevention Control of Pollution) Act, 1974 applied for sanction from the Board of discharge their effluent from their outlets. The Board before granting sanction analysed their effluent which was being watched constantly and monitored to see that the discharges does not affect the water quality of the Bokaro river adversely. In order to prevent the pollution the Board issued direction to the Director of the Collieries to take effective steps for improving the quality of the effluent going into the Bokaro river. The State Pollution Board imposed conditions requiring the Company to construct two settling tanks for settlement of solids and rewashing the same. The Board directed for the regular samples being taken and tested for suspended solids and for the communication of the results of the tests to the Board each month. The State Board has asserted that the Company has constructed four ponds ensuring more storing capacity of effluent. The Pollution Board has been monitoring the effluent. It is further stated that on the receipt of the notice of the instant writ petition the Board carried out an inspection of the settling tanks regarding the treatment of the effluent from the washeries on 20th June, 1988. On inspection it was found that all the four settling tanks had already been completed and work for further strengthening of the embankment of the tanks was in progress, and there was no discharge of effluent from the washeries into river Bokaro except that there was negligible seepage from the embankment. It is further stated that the Board considered all the aspects and for further improvement it directed the management of the collieries for removal of the settle slurry from the tanks. The Board has directed that the washeries shall perform desludging of the settling tanks at regular intervals to achieve the proper required retention time for the separation of solids and to achieve discharge of effluents within the standards prescribed by the Board.

It is further asserted that at present there is no discharge from any of the tanks of the Bokaro river and there is no question of pollution of the river water of affecting the fertility of land. In their affidavits files on behalf of the respondent- 11 Nos. 4 and 5, they have also denied the allegations made in the petition. They have asserted that the effective steps have been taken to prevent the flow of the water discharge from the washeries into the river Bokaro. it is stated that infact river Bokaro remains dry during 9 months in a year and the question of pollution of water by discharge of slurry into the river does not arise. However, the management of the washeries have constructed from different ponds to store the slurry. The slurry which settles in the pounds is collected for sale. The slurry contains highly carbonaceous materials and it is considered very valuable for the purpose of fuel as the ash contents are almost nil in the coal particles found in the slurry. Since, it has high market value, the Company would not like it to go in the river water. The Company has taken effective steps to ascertain that no slurry escapes from its ponds at the slurry is highly valuable. The Company has been following the directions issued by the State Pollution Control Board constituted under the 1974 Act.

On the facts as appearing from the pleadings and the specific averments contained in the counter-affidavit filed on behalf of the State Pollution Control Board of Bihar, prima facie we do not find any good reason to accept the petitioner’s allegation that the water of the river Bokaro is being polluted by the discharged of sludge or slurry into it from the washeries of the respondent-company. On the other hand we find that the State Pollution Control Board has taken effective steps to check the pollution. We do not consider it necessary to delve into greater detail as the present petition does not appear to have been filed in public interest instead the petition has been made by the petitioner in his own interest.

On a perusal of the counter-affidavit filed on behalf of the respondent Nos. 4 and 5 it appears that the petitioner has been purchasing slurry from the respondent Nos. 4 and 5 for the last several years. With the passage of time he wanted more and more slurry, but the respondent- company refused to accept his request. The petitioner is an influential businessman, he had obtained a licence for coal trading, he tried to put pressure through various sources on the respondent-company for supplying him more quantity of slurry but when the Company refused to succumb to the pressure, he started harassing the Company. He removed the Company’s slurry in an unauthorised manner for which a Criminal Case No., 173 of 1987 under Sections 379 and 411 of the Indian Penal Code read with Section 7 of the Essential Commodities Act was registered against the petitioner and Pradip Kumar his brother at Police Station Mandu, which is pending before- 12 the Sub-Judge, Hazaribagh. One Shri Jugal Kishore Jayaswal also filed a criminal complaint under Section 379 and 411 of the IPC against the petitioner and his brother Pradip Kumar in the Court of Judicial Magistrate, First Class, Hazaribagh, which is also pending before the Court of Judicial Magistrate, 2nd Class Hazaribagh. The petitioner initiated several proceedings before the High Court of Patna under Article 226 of the constitution for permitting him to collect slurry from the Raiyati land. These petitions were dismissed on the ground of existence of dispute relating to the title of the land. The petitioner filed a writ petition C.W.J.C. No. 887 of 199o in the High Court of Patna for taking action against the Deputy Commissioner, Hazaribagh for implementing the Full Bench judgment of the Patna High Court in Kundori Labours Cooperative Society Ltd. & etc.

etc. v. State of Bihar & Ors., AIR 1986 Patna 242 wherein it was held that the slurry was neither coal nor mineral instead it was an industrial waste of coal mine, not subject to the provisions of the Mines and Mineral (Regulation and Development) Act, 1957. Consequently the collection of slurry which escaped from the washeries could be settled by the State Government with any person without obtaining the sanction of the Central Government. The petitioner has been contending before the High Court that the slurry which was discharged from washeries did not belong to the Company and he was entitled to collect the same. Since the respondent- company prevented the petitioner from collecting slurry from its land and as it further refused to sell any additional quantity of slurry to him, he entertained grudge against the respondent-company. In order to feed fat his personal grudge he has taken several proceedings against the respondent-company including the present proceedings. These facts are quite apparent from the pleadings of the parties and the documents placed before the Court. Infact,there is intrinsic evidence in the petition itself that the primary purpose of filling this petition is not to serve any public interest instead it is in self-interest as would be clear from the prayer made by the petitioner in the interim stay application. The petitioner claim interim relief from this Court permitting him to arrest/collect sludge/slurry flowing out of the washeries of the respondent Nos. 4 and 5 and with a direction to the State of Bihar, its officers and other authorities for not preventing him from collecting the sludge/slurry and transporting the same. The prayer for the interim relief made by the petitioner clearly indicates that he is interested in collecting the slurry and transporting the same for the purposes of his business. As already state a Full Bench of the Patna High Court held that the slurry was not coal and the provisions of the Mines and Mineral (Regulation and Development) Act, 1957 were not applicable, the State Government was tree to settle the same- 13 and the Tata Steel & Iron Co. had no right to collect the slurry which escaped from its washeries. The respondent-company filed an appeal before this Court.

During the pendency of the aforesaid appeal, the petitioner filed the present petition. The appeal preferred by the Tata Iron & Steel Co. Ltd. and Bharat Coking Coal Ltd. was allowed by this Court and judgment of Patna High Court was set aside. The judgment of this Court is reported in Judgments today Vol. 3 1990 SC 533 wherein it has been held that the slurry/coal deposited on any and continues to be coal and the State Government has no authority in law to deal with the same and the slurry deposited on the Company’s land belongs to the Company and no other person had authority to collect the same.

Article 32 is designed for the enforcement of Fundamental Rights of a citizen by the Apex Court. It provides for an extraordinary procedure to safeguard the Fundamental Rights of a citizen. Right to live is a fundamental right under Art 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Art, 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life. A petition under Art. 32 for the prevention of pollution is maintainable at the instance of affected persons or even by a group of social workers or journalists. But recourse to preceeding under Art. 32 of the Constitution should be taken by a person genuinely interested in the protection of society on behalf of the community. Public interest litigation cannot be invoked by a person or body or person to satisfy his or its personal grudge and enmity. if such petitions under Article 32, are entertained it would amount to abuse of process of the Court, preventing speedy remedy to other genuine petitioner from this Court. Personal interest cannot be enforced through the process of this Court under Art. 32 of the Constitution in the garb of a public interest litigation. Public interest litigation contemplates legal proceeding for vindication or enforcement of fundamental rights of a group of persons or community which are not able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law. A person invoking the jurisdiction of this Court under Art. 32 must approach this Court for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity. It is duty of this Court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extraordinary jurisdiction of this Court for personal matters under the garb- 14 of the public interest litigation see Bandhua Mukti Morcha v. Union of India, [1983] INSC 206; [1984] 2 SCR 67; Pandey v. State of West Bengal, [1987] INSC 43; [1987] 2 SCC 295 at 331; Ramsharan Autyanuprasi & Anr. v. Union of India & Ors., [1989] Suppl. 1 SCC 251 and Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P. & Ors.[1990] INSC 231; , [1990] 4 SCC 449.

In view of the above discussion we are of the opinion that this petition has been filed not in any public interest but for the petitioner’s personal interest and for these reasons we dismissed the same and directed that the petitioner shall pay Rs. 5,000 as costs. These costs are to be paid to the respondent Nos. 3,4 & 5.

The post Subhash Kumar Vs. State of Bihar & Ors appeared first on B&B Associates LLP.

S. JAGANNATH …PETITIONER
Vs.
UNION OF INDIA & ORS. …RESPONDENT

DATE OF JUDGMENT: 11/12/1996
BENCH: KULDIP SINGH, S. SAGHIR AHMAD.

J U D G M E N T

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 of land 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 intensive and 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 Tamil Nadu 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 major rivers 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 February 19, 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 Para 2 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 mentioned that 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 included as 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:- “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.

Organophosphorus compounds 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 the natural 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 being taken 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 affected and 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 by the 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.

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P.A. Jacob …Appellant
Appellant Advocate : P.C. Chacko and; Roy Chacko, Advs.
Vs
The Superintendent of Police, Kottayam and anr. …Respondent
Respondent Advocate : Augustine Joseph, Government Pleader

Judge Chettur : Sankaran Nair, J.
Reported in : AIR 1993 Ker 1
Acts : Constitution of India – Articles 14, 19, 19(1) and 21; Kerala Police Act, 1961 – Sections 19 and 23; Code of Criminal Procedure (CrPC) , 1974 – Sections 133
Cases Referred : West Virginia State Board v. Barnette

1. Claiming a fundamental right to use a loud speaker at public meetings to voice his views, petitioner seeks to restrain respondents from interfering with the use of a loud speaker by him.

2. Petitioner belongs to a denomination of Christianity, known as ‘Knanaya’ Christians. Thomas of Cana came to India from Mesopottomia in 344 A.D. and organised the south eastern church of Syrian Christians, as St. Thomas organised the north eastern church in A.D. 52. The followers of Thomas of Cana, came to be known as ‘Knanaya’ Christians. Some of the Knanaya Christians follow the rites of the Catholic Church, while others follow the Marthomite rites. Members of ‘Knanaya’ denomination do not marry outside that denomination, it is said — with a view to preserve the purity of stock. This practice is denounced by petitioner. In his view, a Knanaya Christian should be free to marry anyone, professing the faith of Christianity. To propagate his views in this regard, petitioner sought permission to hold meetings using sound amplifiers. Second respondent– Sub-Inspector of Police, granted permission (Ext. P1), but withdrew the permission later, apprehending that views of petitioner may incite to violence the conservatives in the Church. Incidentally, this apprehension or misapprehension, has been proved wrong, as a meeting could be held pursuant to interim orders of this Court, admittedly without any disturbance.

3. Petitioner submits that freedom of speech and expression imply freedom to use amplifying devices and cited the decision of the Gujarat High Court in Indulal v. State, AIR 1963 Guj 259 : (1963 (2) Cri LJ 502) in support of his contention. The Gujarat High Court relied on the opinion of the Judicial Committee in Francis v. Chief of Police, (1973) 2 AER 251 to hold that freedom of speech included freedom to circulate one’s views, in any manner. The Allahabad High Court however took a contrary view, in Rajnikant v. State, AIR 1958 All 360 : (1958 All LJ 56). H.M. Seervai (Constitutional Law (I) 3rd Edn. page 504) prefers the view of the Gujarat High Court. There is also a decision of this Court in D. Ananda Prabhu v. District Collector, 1974 KLT 291 : (AIR 1975 Ker 117) following the view of the Gujarat High Court. But this Court did riot consider the question whether a fundamental right was involved in the matter of using a loud speaker. The learned Judge assumed that there was a fundamental right, and proceeded to consider the reasonableness of a restriction imposed. After referring to the decision of the Gujarat High Court, the learned Judge observed:

‘It appears to me that the right conferred by Article 19(1)(a)…….have to be understood inthe same way (as in Francis’s case). I do notpropose to examine this aspect, any further.’

No decision of the Apex Court on this aspect was brought to my notice.

4. The core question is whether the Constitution guarantees a right to use a soundamplifying device, or whether use of such a device is part of the right to freedom of speech. Freedom of speech and expression are rights cherished by all free societies. That freedom implies not only freedom to express the thought we approve of, but freedom to express the thought, we hate. A debate of ideas is essential in any free society. No one can forbid legitimate efforts to change the mind of society by expression of views, or advocating different persuasions or even by questioning the existing order. J.S. Mill said :

‘If we never hear questions, we will forget the answers.’

Maintenance of opportunity for free political discussion is thus a cardinal principle of our Constitutional system. History bears witness to this process. Debate, brought in its wake, new thoughts and new ethoes. Time has upset many fighting faiths. What was once regarded blasphemy, became the truth of another generation. P2p15. As observed in Abrams v. U.S. (250US616):

‘Men may come to believe, even more than they believe the very foundations of their own conduct, that the ultimate good desired is better reached by a free trade in ideas that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely may be carried out. That is the theory of our Constitution.’

(Holmes, J.)

This was reiterated in U.S. v. Schiwmmer (297 US 644):

‘Every idea is an incitement…….elequencemay set fire to reason. If in the long run the belief expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance to have their way.’

6.But, there are frontiers even to freedoms. Liberty is not the right toperpetuate licentiousness. Free speech does not protect sedition, libel or obscenity. It does not sanction intrusion into rights of others.

To be let alone, is as much a freedom, as the freedom to be heard. Right to silence or solitude, is as much a right, as right to expression is. What is negatively the right to silence, is positively freedom from injury by noise.

7. The amplitude of the right of free speech in its various facets enshrined in Article 19 of the Constitution, has been considered by the Supreme Court of India in Romesh Thappar v. The State of Madras, AIR 1950 SC 124 : ((1950) 51 Cri LJ 1514); Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, AIR 1986 SC 515 : (1985 Tax LR 2451); Hamdard Dawakhana v. The Union of India, AIR 1960 SC 554: (1960 Cri LJ 735); Reliance Petrochemicals Ltd. v. Proprietors, Indian Expresss, Bombay (P) Ltd., AIR 1989 SC 190 : (1989 Tax LR 66) and other cases.

8. Likewise, the right to free speech, embodied in the First Amendment in the American Constitution, has come for consideration of the United States’ Supreme Court time and time again (Schenck v. United States, 249 US 47; Abrams v. U.S., 250 US 616; Gitlow v. New York, 268 US 652; Whitney v. California, 274 US 357; De Jonge v. State of Oregon, 299 US 353; West Virginia State Board v. Barnette, 319 US 624; Brandenburg v. State of Ohio, 395 US 444; Hess v. Indiana, 414 US 105; Lehman v. City of Shaker Heights, 418 US 298, Breard v. City of Alexandria, 341 US 622).

9. In Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India, AIR 1986 SC 515, the Supreme Court of India highlighted the free speech content of Article 19 and its parameters. The right is not absolute. For that matter, under the First Amendment, restrictions are not alien to the constitutional . scheme. In Roth v. U.S. (354 US 746), the Supreme Court held that obscenity is not a protected right. In Mear v. Minnesota (283 US 697) and Times Film Corporation v. Chicago (365 US 43), the United States’ Supreme Court held that restraints on free speech were constitutionally permissible. Chaplinsky v. New Hampshire (315 US 568); Feiner v. New York (340 US 315); Dennis v. U.S. (341 US 494), Niemotko v. Maryland(340 US 268), Poulos v. New Hampshire (345 US 395), Cox v. Louisiana (379 US 536), Public Utilities Commission v. Pollak (343 US 451), Adderley v. Florida (385 US 39) and Grayned v. City of Rockford (408 US 104) are also authorities for the same proposition.

10. However wide a right is, it cannot be as wide, as to destroy similar or other rights in others.

Jefferson said ;

‘ No one has a natural right to commit aggression on the equal rights of another.’

J.S. Mill said:

‘If all mankind minus one were of one opinion, and if only one person was of contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.’

Freedom or right, is not an exclusive matter between the State and a citizen. One man’s freedom, may destroy another man’s freedom. A community of rights, not always synchronizing with each other, have to be harmonised, if any freedom is to be real. In Abrams v. U.S. (250 US 616) the United States’ Supreme Court said :

‘Nobody can be compelled to accept any idea… not even of national unity.’

Again in Breard v. City of Alexandria (341 US 622), the Court highlighted the rights of the recipient or captive audience:

‘Freedom of speech or press, does not mean that one can talk or distribute where, when and how one chooses. Rights of those, other than the advocates, are involved. By adjustment of rights we can have, both liberty of expression and an orderly life.’

In this area, there are no prophets who can commend attention, and for that matter, not all propagandists and pamphleteers, are prophets.

11. The right to speech implies, the right to silence. It implies freedom, not to listen, and not to be forced to listen. The rightcomprehends freedom to be free from what one desires to be free from. What could be more basic, to the concept of freedom than this? Justice Douglas articulated this freedom as:

‘…….right to be let alone is the beginning ofall freedoms..,.. When we force people to listen to another’s ideas, we give the propagandist a powerful weapon. One man’s lyric may be another’s vulgarity.’

12. Free speech is not to be treated is a. promise to everyone with opinions and beliefs, to gather at any place and at any time and express their views in any manner. The right is subordinate to peace and order. Referring to the natural limits of liberty, J.S. Mill said:

‘Liberty of an individual must be thus far limited — he must not make himself a nuisance to other.’

13. In this background, the question whether use of a loud speaker is a fundamental right, or part of the complements of a fundamental right, has to be viewed.

14. With great respect, I find it difficult to agree with thp view of the Gujarat High Court in Indulal v. State (AIR 1963 Guj 259), that freedom of Speech includes freedom to use sound amplifiers. In Francis v. Chief of Police (1973 (2) All England Reports 251), relied pn by the Gujarat High Court to find an absolute freedom, Pearson L.J. pointed out that:

‘Some regulation of the use of loud speaker is required in order that citizens who do not wish to hear what is being said may be protected.’

This limitation was noticed by A.L. Goodhart (69 Law Quarterly Review 317). If an absolute right is conceded in this behalf, it will be an unlimited charter for aural aggression. If a sound amplifier is accepted as an attribute of freedom of expression, then on principle, use of a Radio Transmitter also cannot be denied. There can be other extensions, pernicious in their effect on national security, public order or morality.

15. Even the First Amendment did notacknowledge use of a loud sjpcaker as part of the right of free speech. In Kuvacks v. Cooper (336 US 77), the majority of seven Judges held that sound amplification in public places, is not part of the right of free speech. Novacks was convicted under an Ordinance, prohibiting use of sound amplifiers in a public street. He challenged the conviction, as violative of First Amendment protection. The Court held that restrictions on free speech, imposed by the Ordinance, were constitutionally permissible. Frankfurter and Jackson (JJ) held that sound trucks in streets, can be absolutely prohibited, without violating the constitutional right of free speech. Police power of State extends beyond health and morals, and comprehends the duty to protect the well-being and tranquillity of a community. The Court observed:

‘Such distractions would be dangerous to traffic at all hours….the quiet and tranquillity, so desirable for city dwellers, would be at the mercy of advocates of particular religious, social or political persuasions, we cannot believe that the right of free speech compel a Municipality, to allow such mechanical voice amplification on any of its streets. The right of free speech is guaranteed to every citizen so that he may reach the minds of willing listeners and to do so, there must be opportunity to win the attention…….Opportu nity to gain the public ear, is not by objectionably amplified sound on the streets. The preferred position of freedom of speech in asociety that cherishes liberty for all, docs noi require legislators to be insensible to claims by citizens to comfort and convenience. To enforce freedom of speech in disregard of the rights of others, would be harsh and arbitraryin itself.’

Justice Jackson, concurring with Frankfurter, J. said:

‘I believe that operation of mechanicalsound amplifying devices conflicts with quietenjoyment of home and park, and with safeand legitimate use of streets and marketplaces…. Freedom of speech for Kovacks.does not in my view, include freedom to usesound amplifiers to drown out natural speechof others.’

16. Kovacks v. Cooper (336 US 77) marked a sharp dissent, from the view then prevailing. The Court overturned the law in Saia v. New York (334 US 558) and held that the right to be heard, is no more important, than the right to be let alone. In Public Utilities Commission v. Pollak (343 US 451), the Court ruled that use of a radio to beam commercial broadcasts in a street-car, was not protected by the First Amendment. The Court observed:

‘……the right to be let alone is the beginning of all freedoms. The present case involves a coercion to make people listen.’

The same view was reiterated in Lehman v. City of Shaker Heights (418 US 298):

‘While petitioner clearly has a right toexpress his views to those who wish to listen,he has no right to force his message upon anaudience incapable of declining to receive it.In my view, the right of the commuters to befree from forced intrusions on their privacy,precludes the city from transforming itsvehicles of public transportation, into forumsof disemanation of ideas upon a captiveaudience.’

17. A person can decline to read a publication, or switch off a radio or television set. But, he cannot prevent the sound from a loud speaker reaching him. He could be forced to hear what, he wishes not, to hear. That will be an invasion of his right to be let alone, to hear what he wants to hear, or not to hear, what he does not wish to hear. One may put his mind or hearing to his own uses, but not that of another. No one has a right to trespass on the mind or ear of another and commit auricular or visual aggression. Limits, must be drawn for liberties, lest they turn into licence, and the antithesis of liberty in its true sense.

18. It is useful in this context, to refer to the opinion of Jackson, J. in Arther Terminiello v. City of Chicago (337 US 1). Terminiello was convicted and sentenced to a fine of 100 Dollars, for making a speech stirring the public to anger, unrest and disturbance. He challenged the conviction, as violating the protection of free speech. The Court said:

‘Underneath a little issue of Terminiello and his 100 Dollar fine, lurks some of the most far reaching constitutional questions, that can confront a people who value both liberty and order……an old proverb warns usto take heed, lest we walk into a well looking at the stars…… civil liberties imply theexistence of an organised society maintaining law and order, without which liberty would be lost…….. Terminiello’s right to speak itselfwill be in jeopardy, if Chicago withdrew its police officers, or if they should look some other way, when the crowd threatened Terminiello …… In the long run, maintenance offree speech will be more endangered if the population can have no protection from the abuses which lead to violence. No liberty — is more secure, by holding that its abuses are inseparable from its enjoyment. We must not forget that it is the free democratic communities that ask us to trust them to maintain peace with liberty, and that factions engaged in the battle are not interested permanently in either. What would it matter to Terminiello if police batter up some communities, or on the other hand, if the communities batter up some policemen?……. The choice is not betweenorder and liberty. It is between liberty with order, and anarchy without either. There is a danger that if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional bill of rights into a suicidal fact.’

19. Professions of rights, distanced from realities of life, would make liberties unreal. The liberties of some, could prove to be the end of the liberties of others. The loquacious may silence the meek. The State must protect the mute, the unorganised and inarticulate, against onslaught of enthusiasm of the vocal or the vociferous. It is no use saying hosannas to freedom, unless such freedom is real. Real they will be, only if there is an ordered society. Order to liberty, is what oxygen to life is. There is no basis to think that freedom and order are not compatible. They are complementary. Liberty will be lost in excess of anarchy, if there is no order. Regulation and suppression are not the same in purpose or result. Time it is to think, whether undisguised assertions of rights by some, havenot imperilled rights of others. If one were to recognise right to protest by blocking roads and railways, it is recognition of a right, to deny rights of the peaceful citizens. Acorns of today, will grow into oaks of tomorrow.

20. As observed by Latham C.J. in Adelaide Co. v. The Common Wealth (67 CLR 116), the Court should lake a commonsense view, and be actuated by considerations of practical necessity. A similar view finds expression in Shamsher Singh v. State of Punjab, AIR 1974 SC 2192 : (1974 Lab IC 1380):

‘The Court true to its function, must try to reflect the gloss by balancing its ruling……denying judicial aid to undermining the substance…. A coup can be constitutionallyenvisioned by an erroneously literal interpretation…. We cannot allow a confusion ofvision_ to creep into our constitutional interpretation ……..’

Rights cannot be viewed as axioms in a book of Mathematics or applied without the risk of generating, ‘a constitutionally envisioned coup’, making a ‘suicide pact with the bill of rights’. Social dimensions, group realities of life, the great trusts of history and experiences of life, must set the tone and nuances, and modulate views. The pitfall counselled against by Hughes, C.J. must be heeded. The Chief Justice said:

‘Many of our decisions are emotional. The rational part of us supplies the reasons for supporting our predilections.’

21. That apart, freedom guaranteed is freedom of expression of ideas; not freedom of modes of expression. Freedom of press means not so much the freedom to put ink on newsprint, as it is the freedom to circulate ideas or thoughts. Where it otherwise, even a tax on newsprint may be constitutionally impermissible. It is not so, as held in Indian Express case (AIR 1986 SC 515). Likewise, freedom to express one’s views to an audience, is not freedom to stand where one likes, or in the middle of a road or to use a loud speaker. There may be matter incidental to the exercise of a right. But, they are not rights, in themselves. Not all matters peripheral to the exercise of a fundamental right, are part of that right. In Smt. Maneka Gandhi’s case AIR 1978 SC 597, the Court held that going abroad is not part of the right under Article 19. In the words of Rajagopala lyengar (J) in All India Bank Employees’ case, AIR 1962 SC 171, recognition of a series of ever expanding concentric circles in the shape of rights, concomitant to concomitant rights and so on, will lead to a grotesque situation.

22. A loud speaker is a mechanical device, and it has no mind or thought process in it. Recognition of the right of speech or expression is recognition accorded to a human faculty. A right belongs to human personality, and not to a mechanical device. One may put his faculties to reasonable uses. But, he cannot put his machines to any use he likes. He cannot use his machines to injure others. Intervention with a machine, is not intervention with, or invasion of a human faculty or right. No mechanical device can be upgraded to a human faculty. A computer or a robot cannot be conceded the rights under Article 19 (though they may be useful to man to express his faculties). No more, a loud speaker. The use of a loud speaker may be incidental to the exercise of the right. But, its use is not a matter of right, or part of the right. I am in no way, not in the least way, narrowing down free speech, nor, attempting to cabin, confine and crib a cherished right, while holding that a mechanical aid is not a complement of human faculty, or its use the extension of a constitutional right. But, 1 consider that any measure of cosmetic surgery on the face of a aggressive act of aural aggression or trespass on the mind of another, will not make it resemble a right.

23. Apart from the right to be let alone, — freedom from aural aggression — Article 21 guarantees freedom from tormenting sounds. What is negatively the right to be let alone, is positively the right to be free from noise. Exposure to high noise, is a known risk and it is proved to cause bio-chemical changes in man, elevating levels of blood catecholamine, cholesterol, white cell counts and lymphocytes. Laboratory studies made by monitoring electroencephalographic (EEG) responses and changes in neurovegetative reactions during sleep, show that disturbance of sleep becomes increasingly apparent as ambient noise levels exceed about 35 db (A) Leq. Noise produces different reactions along the hypothalamohypophyseal-adrenal axis, including an increase in adenocorti-cotropic hormone (ACTH), affecting sympathetic division of the autonomic nervous system. Eye dilation, bradycardia, and increased skin conductance are proportional to the intensity of noise above 70 dB. SPL. Incidence of peptic ulcer is high among noise exposed groups. Noise causes contraction of the flexor muscles of the limbs and the spine, and is reckoned as an environmental stress that could lead to non-specific health disorders. Exposure to high noise in every day life may contribute to eventual loss of hearing (socioacusis), and this in turn can affect speech communication. Vasoconstriction or vasodilation of blood vessels also is induced by high levels of noise during acute exposures (Rose-crans et al (1966)). Complaints of nystagmus (rapid involuntary side to side movements), Vertigo (dizziness) and balance problems have also been reported due to noise exposure. ‘WHO’ criteria 12 and Indian Standards 1 — S — 4954 indicate tolerance levels. J.E. Park and K. Park Text Book of Preventive and Social Medicine’, 7th Edn. page201, also specifies tolerance limits of noise.

24. Sound levels generally caused by loud speakers transgress safe limits by a wide margin. Loud speakers have become part of political, social, religious and cultural life of this country. To allow advocates of various persuasions to commit unlimited aural aggression on unwilling listeners, would be to allow them to subjugate the right of life of unwilling listeners, to their aggressions. Protests made by sufferers like the student community or sick, generally fall on heedless ears. Very recently, the ‘Malayala Manorama’ (5-5-1992) came out with an editorial against noise pollution. The Indian Medical Association is reported to have protested against high noise output through loud speakers, pointing out the risks…………… (Malayala Manorama21-5-1992, Mathrubhumi dt. 21-5-1992). Compulsory exposure of unwilling persons to dangerous and disastrous levels of noise, would amount to a clear infringement of their constitutional guarantee of right to life under Article 21. Right to life, comprehends right to a safe environment, including safe air quality, safe from noise.

25. But, that is not the end of the matter. There are amenities available outside fundamental rights. The spirit often protects what the language does not. One may enjoy certain amenities or common law rights, independent of fundamental rights. These would include the amenity of using a loud speaker (without committing aural aggression), to the extent of reaching a willing audience. One may exercise that amenity in a hall or area reasonably required to accommodate a willing audience. There is no right to any amenity beyond this.

26. Besides, use of a loud speaker cannot be arbitrarily denied, only because a fundametal right is not involved. By reason of Article 14, the State and its agencies cannot act arbitrarily. They must adhere to fair play in action. For instance, even when a person may not have a fundamental right to, enter into a contract with the State, the State cannot act arbitrarily in the matter of awarding a contract. Likewise, in the matter of denying the use of a loud speaker, Police cannot act arbitrarily. All State action is amenable to Article 14. To quote Jackson, J. in West Virginia State Board v. Barnette (319 US 624), again:

‘There are village Hampdens and village tyrants, but none who acts under colour of law, is beyond the reach of the Constitution.’

If the authority charged with the power to regulate use of loud speakers under the Kerala Police Act, acts beyond the authority law confers upon him, his action is liable to be interdicted.

27. Back to the facts. Permission was denied to petitioner to use a loud speaker on the ground that holding of meetings with loud speakers would lead to a law and order situation, on account of the displeasure that it may cause to another group. This reasonappears to be an after-thought. At the time of granting permission initially, no such hazard was envisioned. Nothing suggests that there had been a change of circumstances, between the time permission was granted, and the time it was cancelled. Quite apart from that, an apprehension that one may interfere with a lawful act done by another, will be no reason to deny the exercise of that lawful right. If obstruction is offered unlawfully or unreasonably, the responsibility of Police is to remove it, instead of stopping someone from doing what he may legitimately do. For a fact, the hazards imagined by the Sub-Inspector of Police (2nd respondent), are unreal. By reason of interim orders made by this Court, petitioner held meetings, using loud speakers and admittedly, no law and order problem arose. In the absence of any valid ground, cancellation of the permission granted under Ext. F1 is arbitrary. While petitioner has no fundamental right to use a loud speaker, he will be free to avail of the amenity of using a loud speaker in a reasonable manner. Second respondent Sub-Inspector of Police, will permit petitioner to hold meetings with the use of loud speakers of a box type, for purposes of holding meetings as indicated in the writ petition. But, the output from the loud speaker, shall not exceed the range, necessary to reach a willing audience, confined in a reasonable area. If it exceeds such limits, Police will be free to stop the use of loud speakers.

The writ petition is disposed of as above. No costs.

I express appreciation of the help rendered by Shri S.V. Balakrishna Iyer as Amicus Curiae.

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MURLI S. DEORA ….PETITIONER
Vs
UNION OF INDIA AND ORS. …RESPONDENT

DATE OF JUDGMENT: 02/11/2001
BENCH: M.B. SHAH & R.P. SETHI

JUDGMENT

2001 Supp(4) SCR 650

The following Order of the Court was delivered :

Heard the learned counsel for the parties.

Fundamental right guaranteed under Article 21 of Constitution of India, inter alia, provides that none shall be deprived of his life without due process of law. Then – why a non-smoker should be afflicted by various diseases including lung cancer or of heart, only because he is required to go to public places? Is it not indirectly depriving of his life without any process of law? The answer is obviously – ’yes’. Undisputedly, smoking is injurious to health and may affect the health of smokers but there is no reason that health of passive smokers should also be injuriously affected. In any case, there is no reason to compel non-smokers to be helpless victims of air pollution.

The statement of objects and reason of (The) Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975, inter alia, provides,
“Smoking of cigarettes is a harmful habit and, in course of time, can lead to grave health hazards. Researches carried out in various parts of the world have confirmed that there is a relationship between smoking of cigarettes and lung cancer, chronic bronchitis; certain diseases of the heart and arteries; cancer of bladder, prostrate, mouth pharynx and oesophagus; peptic ulcer etc., are also reported to be among the illeffects of cigarette smoking.”

Similarly, the statement of objects and reasons of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Bill, 2001, pro-vides, “Tobacco is universally regarded as one of the major public health hazards and is responsible directly or indirectly for an estimated eight lakh deaths annually in the country. It has also been found that treatment of tobacco related diseases and the loss of productivity caused therein cost the country almost Rs. 13,500 crores annually, which more than offsets all the benefits accruing in the form of revenue and employment generated by tobacco indus-try”.

In this view of the matter, when this petition under Article 32 of the Constitution of India came for orders on 31st August, 2001, we have passed order for implementing 1975 Act. At that time of hearing, learned Attorney General as well as counsel for the parties submitted that considering harmful effect of smoking, smoking in public places is required to be prohibited. On this submisstion, we sought response of the Central Government. As no affidavit was filed during the stipulated time by the Central Government, on 28th September, 2001, we were required to adjourn the matter. Today also, when the matter came up for hearing no response is filed on behalf of the Central Government. However, learned Attorney General with all emphasis at his command submitted that appropriate order banning smoking in public places be passed. Learned counsel for the petitioner also submitted to the aforesaid effect. Counsel appearing for other respondents also supported the same.

In the petition, it is pointed out that tobacco smoking contains harmful contents including nicotine, tar, potential carcinogens, carbon monoxide, irri-tants, asphyxiates and smoke particles which are the cause of many diseases including the cancer. It is alleged that three million people die every year as a result of illness related to the use of tobacco products of which one million people belong to developing countries like India. The World Health Organisa-tion is stated to have estimated that tobacco related deaths can rise to a whopping seven million per year. According to this organisation, in the last half century in the developing countries alone smoking has killed more than sixty million people. Tobacco smoking also adds to the air pollution. Besides cancer, tobacco smoking is responsible for various other fatal diseases to the mankind.

It is further submitted that statutory provisions are being made for prohibiting smoking in public places and the Bill introduced in the Parliament is pending consideration before a Select Committee. The State of Rajasthan has claimed to have passed Act No. 14 of 2000 to provide for prohibition of smoking in place of public work or use and in public service vehicles for that State. It is stated that in Delhi also there is prohibition of smoking in public places.

Learned Attorney General for India submits and all the counsel appear-ing for the other parties agree that considering the adverse effect of smoking in public places, it would be in the interests of the citizens to prohibit the smoking in public places till the statutory provision is made and implemented by the legislative enactment. The persons not indulging in smoking cannot be compelled to or subjected to passive smoking on account of acts of the smok-ers.

Realising the gravity of the situation and considering the adverse effect of smoking on smokers and passive smokers, we direct and prohibit smoking in public places and issue directions to the Union of India, State Goverments as well as the Union Territories to take effective steps to ensure prohibiting smoking in public places, namely :
1. Auditoriums
2. Hospital Buidings
3. Health Institutions
4. Educational Institutions
5. Libraries
6. Court Buildings
7. Public Office
8. Public Conveyances, including Railways.

Learned Attorney General for India assured the court that Union of India shall take necessary effective steps to give wide publicity to this order by electronic as well as print media to make the general public aware of this order of prohibition of smoking.

We further direct the Registrar General to intimate the State Govern-ments Union Territories as well as the Commissioners of Police as mentioned in our orders dated 31st August, 2001 and 28th September, 2001 of this Court with directions for submission of their compliance report in this Court within five weeks from today. Union of India shall also file its response at the earliest.
List after six weeks.

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M.C. MEHTA ETC. ETC. …PETITIONER
Vs.
UNION OF INDIA AND OTHERS ETC. ETC. …RESPONDENT

DATE OF JUDGMENT15/05/1992

BENCH: MISRA, RANGNATH (CJ) KANIA, M.H. KULDIP SINGH (J)

CITATION:
1991 SCR (1) 866 1991 SCC (2) 353
JT 1991 (1) 620 1991 SCALE (1)427

ACT:

Constitution of India, 1950:

Article 32-Environmental and air pollution-Control of- Operation of mechanical crushers-Stoppage of-Allotment of sites in the newly set-up crushing zone-Directions issued.

HELD : 1. Environmental changes are the inevitable consequence of industrial development in our country, but, at the same time the quality of environment cannot be permitted to be damaged by polluting the Air, Water and Land to such an extent that it becomes a health-hazard for the residents of the area. The authorities concerned in the Union Territories of Delhi have been wholly re-miss in the performance of their statutory duties and have failed to protect the environment and control air-pollution in the Union Territory of Delhi. Utter disregard to environment has placed Delhi in unenviable position of being the world’s third grubbiest, most polluted and unhealthy city as per a study conducted by the World Health Organisation.

Needless to say that every citizen has a right to fresh air and to live in pollution-free environment. [359 F-H, 360 A]

2. It is, therefore, directed that (a) the mechanical stone crushers 358 established/operating in Lal Kuan, Anand Parbat, Rajokri, Tughlakabad and in any other area of Union territory of Delhi and also in Suraj Kund, Lakhanpur, Lakkarpur, Kattan, Gurukul, Badkhal, Pallinangla, Saraikhaja, Anangpur and Ballabgarh areas of Haryana should stop operating/functioning with effect from August 15, 1992 and no stone crusher will operate in the above said areas from August 15, 1992 onward; (b) the stone crushers in the Union territory of Delhi/Faridabad-Ballabgarh Complex which do not have valid licences from the Authorities under the Delhi Municipal Corporation Act, 1957/Faridabad Complex Administration (Regulations and Development) Act, 1971 or from any other authority which the law requires, and the stone crushers, in respect of which closure- orders/directions have been issued by the Central Pollution Control Board under Section 31A of Air (Prevention and Control of Pollution) Act, 1981 or by the Central Government under Section 5 of the Environment (Protection Act, 1956, should stop functioning/operating with immediate effect; (c) the authorities concerned should ensure compliance of these order; and (d) the authorities concerned of the State of Haryana should demarcate, and allot the sites to the aforesaid stone crushers in the newly approved ‘crushing zone’ at village Pali – set up with the object of rehabilitating the existing stone-crushers who are being stopped from functioning as a result of the orders of this Court – by draw of lots or by any other fair and equitable method, and also to provide additional land in or around the “crushing zone” if there is not sufficient land in the said zone to accommodate all the stone crushers affected by this Court’s orders within a period of six months. A progress report in this respect should be sent to the Registry of this Court before July 31, 1992. [360 B-C, E-H, 361 A-G]

3. Some Writ Petitions, which were filled by the owners/proprietors of stone-crushers in the Delhi High Court and which have been directed to be transferred to this Court are dismissed. [360 E]

ORIGINAL JURISDICTION : Writ Petition (C) No.4677 of 1985.

(Under Article 32 of the Constitution of India).

WITH
T.C.(C) No. 75-89/91 W.P.(C) No.521/87 T.P.(C) No.245- 50/91.

M.C. Mehta Petitioner-in-person.

359 Satish Chander, Hardev Singh, P.N. Duda, B.R.L.

Iyengar, P.P. Rao, V.C. Mahajan, S.S. Chadha, R. Mohan, Ms.

Rekha Pandey, K.B. Rohtagi, S.K. Dhingra, Shashank Shekhar, Vishnu Mathur, Vijay Pandita, Randhir Jain, N.S. Bisht, Ms.

Seema Midha, K.R.R. Pillai, R.S. Suri, R.B. Misra, C.V.

Subba Rao, Kailash Vasdev, V.B. Saharya, Ranjit Kumar, R.

Sridharan, Ms. Indu Malhotra, P.K. Jain, I.S. Goyal, Dr.

A.M. Singhvi, R. Sasiprabhu, Ms. Anil Katiyar and B.Y.

Kulkarni for the appearing parties.

The following Order of the Court was delivered:

We reserved judgment in these matters on April 24, 1992. We heard learned counsel for the parties at considerable length for several days. We have been taken through the provisions of Delhi Development Act 1957, Master Plan for Delhi published in the Gazette of India dated August 1, 1990, Delhi Development Authority (Zoning) Regulations, 1983, Delhi Municipal Corporation Act 1957, Faridabad Complex Administration (Regulations and Development) Act, 1971, The Development Plan for the Faridabad-Ballabgarh Controlled Areas published in the Haryana Government Gazette dated December 17, 1991, Air (Prevention and Control of Pollution) Act 1981, The Environment (Protection Act) 1986, National Health Policy, 1985, Ancient Monuments Act, 1958, National Capital Region Planning Board Act, 1985 and various other documents including reports of the Experts on Air Pollution and environments. The parties have submitted detailed written arguments which we have taken into consideration. We have given our thoughful consideration to the various arguments advanced by the learned counsel for the parties.

We are conscious that environmental changes are the inevitable consequence of industrial development in our country, but at the same time the quality of environment cannot be permitted to be damaged by polluting the Air, Water and Land to such an extent that it becomes a health- hazard for the residents of the area. We are constrained to record that Delhi Development Authority, Municipal Corporation of Delhi, Central Pollution Control Board and Delhi Pollution Control Committee have been wholly re-miss in the performance of their statutory duties and have failed to protect the environments and control air-pollution in the Union Territory of Delhi. Utter disregard to environment has placed Delhi in an unenviable position of being the world’s third grubbiest, most polluted and unhealthy city as per a study conducted by the World Health Organisation.

Needless 360 to say that every citizen has a right to fresh air and to live in pollution-free environments.

For the reasons to be recorded and pronounced at a later stage we order and direct as under:- (1) The mechanical stone crushers established/operating in Lal Kuan, Anand Parbat, Rajokri, Tughlakabad and in any other area of Union territory of Delhi shall stop operating/functioning with effect from August 15, 1992. No stone crusher shall operate in the Union territory of Delhi from August 15, 1992 onward.

(2) The mechanical stone crushers established/operating in Suraj Kund, Lakhanpur, Lakkarpur, Kattan, Gurukul, Badkhal, Pallinangla, Saraikhaja, Anangpur and Ballabgarh areas of Haryana shall stop operating/functioning with effect from August 15, 1992. No stone crusher shall operate in the above said area form August 15, 1992 onward.

(3) The writ petitions filed by the owners/proprietors of stone crushers in Delhi High Court which have been transferred to this Court shall stand dismissed with no order as to costs.

(4) The Stone crushers in the Union territory of Delhi/Faridabad-Ballabgarh Complex which do not have valid licences from the Authorities under the Delhi Municipal Corporation Act 1957/Faridabad Complex Administration (Regulations and Development) Act 1971 or from any other authority which the law requires, shall stop functioning and operating with immediate effect.

(5) The stone crushers, in respect of which closure-orders/directions have been issued by the Central Pollution Control Board under Section 31A of Air (Prevention and Control of Pollution) Act, 1981 or by the Central Government under Section 5 of the Environment (Protection) Act 1956, shall stop functioning/operation with immediate effect.

(6) The Delhi Development Authority through its Vice Chairman and Commissioner (Planning), the Delhi Municipal Cor- 361 poration through its Commissioner, Faridabad Complex Administration through its Chief Administrator, Director Town and Country Planning Department, Haryana Deputy Commissioner, Faridabad, Haryana Urban Development Authority through its Commissioner/Chief Executive, Central Pollution Control Board through its Member Secretary, Central Government under the Environment (Protection Act) 1986 and the Commissioner Police Delhi are directed to ensure the compliance of our above orders.

(7) The officers of the Town and Country Planning Department, Government of Haryana, who were present in Court, informed us that a new “crushing zone” has been approved at village Pali and the lay out Plan has been prepared and is in the process of demarcation by the Haryana Urban Development Authority. The said “crushing zone” has been set up with the object of rehabilitating the existing stone crushers who are being stopped from functioning as a result of our orders. We, therefore, direct the State of Haryana through the Director, Town and Country Planning Department, Haryana, Chandigarh, the Chief Administrator, Faridabad Complex Administration, the Deputy Commissioner, Faridabad and the Haryana Urban Development Authority to demarcate, and allot the sites to the stone crushers mentioned in paras 1,2,4 and 5 above by draw of lots or by any other fair and equitable method. We further direct these authorities to provide additional land in or around the “crushing zone” if there is not sufficient land in the said zone to accommodate all the stone crushers affected by our orders. This exercise shall be completed and plots offered to the stone crushers within a period of six months from today.

The Director, Town and Country Planning Department, Haryana, Chandigarh is further directed to send a progress report to the Registry of this Court before July 31, 1992 in this respect.

(8) We make it clear that our orders contained in paras 1,2,4 and 5 above are in absolute terms and are not dependent or consequential to our directions in para 7 above.

362 We are not finally disposing of the writ petition at this stage and we keep it pending for the purposes of monitoring the above directions. To be listed on August 5, 1992.

The copies of this order be sent to all the Authorities mentioned in paras 6 and 7 above within two days.

N.P.V. Reasons to follow.

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IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
IA NO.36 AND IA NO.44
IN
WRIT PETITION (C) No.967 OF 1989

Indian Council for Enviro-Legal Action … Petitioners
Versus
Union of India & Others … Respondents

JUDGMENT

Dalveer Bhandari, J.

1. This is a very unusual and extraordinary litigation where even after fifteen years of the final judgment of this court (date of judgment 13th February, 1996) the litigation has been deliberately kept alive by filing one interlocutory application or the other in order to avoid compliance of the judgment. The said judgment of this Court has not been permitted to acquire finality till date. This is a classic example how by abuse of the process of law even the final judgment of the apex court can be circumvented for more than a decade and a half. This is indeed a very serious matter concerning the sanctity and credibility of the judicial system in general and of the apex court in particular.

2. An environmentalist organisation brought to light the sufferings and woes of people living in the vicinity of chemical industrial plants in India. This petition relates to the suffering of people of village Bichhri in Udaipur District of Rajasthan. In the Writ Petition No.967 of 1989, it was demonstrated how the conditions of a peaceful, nice and small village of Rajasthan were dramatically changed after respondent no. 4 Hindustan Agro Chemicals Limited started producing certain chemicals like Oleum (concentrated form of sulphuric acid) and Single Super Phosphate. Respondent numbers 4 to 8 are controlled by the same group and they were known as chemical industries. The entire chemical industrial complex is located within the limits of Bichhri village, Udaipur, Rajasthan. Pursuit of profit of entrepreneurs has absolutely drained them of any feeling for fellow human beings living in that village.

3. The basic facts of this case are taken from the judgment delivered in the Writ Petition No.967 of 1989. In the beginning of the judgment of this court delivered on February 13, 1996, it is observed as under:

“It highlights the disregard, nay, contempt for law and lawful authorities on the part of some among the emerging breed of entrepreneurs, taking advantage, as they do, of the country’s need for industrialisation and export earnings. Pursuit of profit has absolutely drained them of any feeling for fellow human beings – for that matter, for anything else. And the law seems to have been helpless. Systemic defects? It is such instances which have led many people in this country to believe that disregard of law pays and that the consequences of such disregard will never be visited upon them -particularly, if they are men with means. Strong words indeed – but nothing less would reflect the deep sense of hurt, the hearing of this case has instilled in us.”

4. It seems that the court was prophetic when it made observation that at times men with means are successful in avoiding compliance of the orders of this court. This case is a classic illustration where even after decade and a half of the pronouncement of the judgment by this court based on the principle of `polluter pays’, till date the polluters (concerned industries in this case) have taken no steps to ecologically restore the entire village and its surrounding areas or complied with the directions of this court at all. The orders of this court were not implemented by keeping the litigation alive by filing interlocutory and interim applications even after dismissal of the writ petition, the review petition and the curative petition by this court.

5. In the impugned judgment, it is mentioned that because of the pernicious wastes emerging from the production of ‘H’ acid, its manufacture is stated to have been banned in the western countries. But the need of ‘H’ acid continues in the West and that need is catered to by the industries like the Silver Chemicals and Jyoti Chemicals in this part of the world.

6. In the impugned judgment, it is also mentioned that since the toxic untreated waste waters were allowed to flow out freely and because the untreated toxic sludge was thrown in the open in and around the complex, the toxic substances have percolated deep into the bowels of the earth polluting the aquifers and the sub-terrain supply of water. The water in the wells and the streams has turned dark and dirty rendering it unfit for human consumption. It has become unfit for cattle to drink and for irrigating the land. The soil has become polluted rendering it unfit for cultivation, which is the main source of livelihood for the villagers. The resulting misery to the villagers needs no emphasis. It spreads disease, death and disaster in the village and the surrounding areas. This sudden degradation of earth and water had an echo in Parliament too and the concerned Minister said that action was being taken, but nothing meaningful was done on the spot. The villagers then rose in virtual revolt leading to the imposition of Section 144 of the Criminal Procedure Code by the District Magistrate in the area and the closure of Silver Chemicals in January, 1989. It is averred by the respondents that both the units, Silver Chemicals and Jyoti Chemicals have stopped manufacturing ‘H’ acid since January, 1989 and are closed. We may assume it to be so, yet the consequences of their action remain – the sludge, the long-lasting damage to earth, to underground water, to human beings, to cattle and the village economy.

7. The Rajasthan State Pollution Control Board (for short “R.S.P.C.B.”) in pursuance of the show cause notice filed a counter affidavit and stated the following averments: (a) Re.: Hindustan Agro Chemicals Limited (respondent for short) [R-4]: The unit obtained ‘No-Objection Certificate’ from the R.S.P.C.B. for manufacturing sulphuric acid and Aluminum sulphate. The Board granted clearance subject to certain conditions. Later ‘No-Objection Certificate’ was granted under the Water [Prevention and Control of Pollution] Act, 1974 [Water Act] and Air (Prevention and Control of Pollution) Act, 1981 [Air Act], again subject to certain conditions. However, this unit changed its product without clearance from the Board. Instead of sulphuric acid, it started manufacturing Oleum and Single Super Phosphate [S.S.P.]. Accordingly, consent was refused to the unit on February 16, 1987. Directions were also issued to close down the unit. (b) Re.: Silver Chemicals [R-5]: This unit was promoted by the fourth respondent without obtaining ‘No-Objection Certificate’ from the Board for the manufacture of ‘H’ acid. The waste water generated from the manufacture of ‘H’ acid is highly acidic and contains very high concentration of dissolved solids along with several dangerous pollutants. This unit was commissioned in February, 1988 without obtaining the prior consent of the Board and accordingly, notice of closure was served on April 30, 1988. On May 12, 1988, the unit applied for consent under Water and Air Acts which was refused. The Government was requested to issue directions for cutting off the electricity and water to this unit but no action was taken by the Government. The unit was found closed on the date of inspection, viz., October 2, 1989. (c) Re.: Rajasthan Multi Fertilizers [R-6]: This unit was installed without obtaining prior ‘No- Objection Certificate’ from the Board and without even applying for consent under Water and Air Acts. Notice was served on this unit on February 20, 1989. In reply thereto, the Board was informed that the unit was closed since last three years and that electricity has also been cut off since February 12, 1988. (d) Re.: Phosphates India [R-7]: This unit was also established without obtaining prior ‘No- Objection Certificate’ from the Board nor did it apply for consent under the Water and Air Acts. When notice dated February 20, 1989 was served upon this unit, the Management replied that this unit was closed for a long time. (e) Re.: Jyoti Chemicals [R-8]: This unit applied for ‘No-Objection Certificate’ for producing ferric alum. ‘No-Objection Certificate’ was issued imposing various conditions on April 8, 1988. The ‘No-Objection Certificate’ was withdrawn on May 30, 1988 on account of non-compliance with its conditions. The consent applied for under Water and Air Acts by this unit was also refused. Subsequently, on February 9, 1989, the unit applied for fresh consent for manufacturing ‘H’ acid. The consent was refused on May 30, 1989. The Board has been keeping an eye upon this unit to ensure that it does not start the manufacture of ‘H’ acid. On October 2, 1989, when the unit was inspected, it was found closed.

8. The Government of Rajasthan filed counter-affidavit on January 20, 1990. The Para 3 of the affidavit reads as under:- “That the State Government is now aware of the pollution of under-ground water being caused by liquid effluents from the firms arrayed as Respondent Nos. 4 to 8 in the writ petition. Therefore, the State Government has initiated action through the Pollution Control Board to check further spread of pollution.”

9. The State Government stated that the water in certain wells in Bichhri village and some other surrounding villages has become unfit for drinking for human beings and cattle, though in some other wells, the water remains unaffected.

10. The Ministry of Environment and Forests, Government of India (for short `MOEF’) in its counter affidavit filed on February 8, 1990 stated that M/s. Silver Chemicals was merely granted a Letter of Intent but it never applied for conversion of the Letter of Intent into industrial licence. Commencing production before obtaining industrial licence is an offence under Industries [Development and Regulation] Act, 1951. So far as M/s. Jyoti Chemicals is concerned, it is stated that it has not approached the Government at any time even for a Letter of Intent. The Government of India stated that in June, 1989, a study of the situation in Bichhri village and some other surrounding villages was conducted by the Centre for Science and Environment. A copy of their report was enclosed with the counter affidavit. The report states the consequences emanating from the production of ‘H’ acid and the manner in which the resulting wastes were dealt with by Respondents Nos. 4 to 8 thus: “The effluents are very difficult to treat as many of the pollutants present are refractory in nature. Setting up such highly polluting industry in a critical ground water area was essentially ill- conceived. The effluents seriously polluted the nearby drain and overflowed into Udaisagar main canal, severely corroding its cement-concrete lined bed and banks. The polluted waters also seriously degraded some agricultural land and damaged standing crops. On being ordered to contain the effluents, the industry installed an unlined holding pond within its premises and resorted to spraying the effluent on the nearby hill-slope. This only resulted in extensive seepage and percolation of the effluents into ground water and their spread down the aquifers. Currently about 60 wells appear to have been significantly polluted but every week a few new wells, down the aquifers start showing signs of pollution. This has created serious problems for water supply for domestic purposes, cattle-watering crop irrigation and other beneficial uses, and it has also caused human illness and even death, degradation of land and damage to fruit, trees and other vegetation. There are serious apprehensions that the pollution and its harmful effects will spread further after the onset of the monsoon as the water percolating from the higher parts of the basin moves down carrying the pollutants lying on the slopes – in the holding pond and those already underground.”

11. This court passed number of orders during the period 1989-1992.

12. On February 17, 1992, this Court passed a fairly elaborate order observing that respondent nos. 5 to 8 are responsible for discharging the hazardous industrial wastes; that the manufacture of ‘H’ acid has given rise to huge quantities of iron sludge and gypsum sludge – approximately 2268 MT of gypsum-based sludge and about 189 mt. of iron- based sludge; that while the other respondents blamed respondent no.9 as the main culprit but respondent no. 9 denied any responsibility, therefore, according to the Courts, the immediate concern was the appropriate remedial action. The report of the R.S.P.C.B. presented a disturbing picture. It stated that the respondents have deliberately spread the hazardous material/sludge all over the place which has only heightened the problem of its removal and that they have failed to carry out the orders of this Court dated April 4, 1990. Accordingly, this Court directed the MOEF to depute its experts immediately to inspect the area to ascertain the existence and extent of gypsum-based and iron-based sludge, to suggest the handling and disposal procedures and to prescribe a package for its transportation and safe storage. The cost of such storage and transportation was to be recovered from the concerned respondents.

13. Pursuant to the above order, a team of experts visited the area and submitted a report along with an affidavit dated March 30, 1992. The report presented a highly disturbing picture. It stated that the sludge was found inside a shed and also at four places outside the shed but within the premises of the complex belonging to the respondents. It further stated that the sludge has been mixed with soil and at many places it is covered with earth. A good amount of sludge was said to be lying exposed to sun and rain.

14. The report stated: “Above all, the extent of pollution in the ground water seems to the very great and the entire aquifer may be affected due to the pollution caused by the industry. The organic content of the sludge needs to be analysed to assess the percolation property of the contents from the sludge. It is also possible that the iron content in the sludge may be very high which may cause the reddish colouration. As the mother liquor produced during the process (with pH-1) was highly acidic in nature and was indiscriminately discharged on land by the unit, it is possible that this might have eroded soil and caused the extensive damage. It is also possible that the organic contents of the mother liquor would have gone into soil with water together with the reddish colour.” The report also suggested the mode of disposal of sludge and measures for re-conditioning the soil.

15. In view of the above report, the Court made an order on April 6, 1992 for entombing the sludge under the supervision of the officers of the MOEF. Regarding revamping of the soil, the Court observed that for this purpose, it might become necessary to stop or suspend the operation of all the units of the respondent but that, the Court said, requires to be examined further.

16. The work of entombment of sludge again faced several difficulties. While the respondents blamed the Government officers for the delay, the Government officials blamed the said respondents of non-cooperation. Several Orders were passed by this Court in that behalf and ultimately, the work commenced. Orders passed in 1993, filing of Writ Petition (C) No. 76 of 1994 by Respondent No. 4 and the orders passed therein:

17. With a view to find out the connection between the wastes and sludge resulting from the production of ‘H’ acid and the pollution in the underground water, the Court directed on 20th August, 1993 that samples should be taken of the entombed sludge and also of the water from the affected wells and sent for analysis. Environment experts of the MOEF were asked to find out whether the pollution in the well water was on account of the said sludge or not. Accordingly, analysis was conducted and the experts submitted the Report on November 1, 1993. Under the heading “Conclusion”, the report stated:

5.0 Conclusion

5.1 On the basis of the observations and analysis results, it is concluded beyond doubt that the sludge inside the emoted pit is the contaminated one as evident from the number of parameters analysed.

5.2 The ground water is also contaminated due to discharge of H- acid plant effluent as well as H-acid sludge/contaminated soil leachiest as shown in the photographs and also supported by the results. The analysis result revealed good correlation between the colour of well water and H-acid content in it. The analysis results show high degree of impurities in sludge/soil and also in well water which is a clear indication of contamination of soil and ground water due to disposal of H-acid waste.

The report which is based upon their inspection of the area in September, 1993 revealed many other alarming features. It represents a commentary on the attitude and actions of the respondents. In Para-2, under the heading “Site Observations & Collection of Sludge/Contaminated Soil Samples”, the following facts are stated: 2.1. The Central team, during inspection of the premises of M/s. HACL, observed that H-acid sludge (iron gypsum) and contaminated soil are still lying at different places, as shown in Figure 1, within the industrial premises(Photograph 1) which are the left overs. The area, where the solar evaporation pond was existing with H-acid sludge dumped here and there, was observed to have been leveled with borrowed soil (Photograph 2). It was difficult to ascertain whether the sludge had been removed before filling. However, there are visual evidences of contaminated soil in the area.

2.2 As reported by the R.S.P.C.B. representatives, about 720 tonnes out of the total contaminated soil and sludge scraped from the sludge dump sites is disposed of in six lined entombed pits covered by lime/flash mix, brick soling and concrete (Photographs were placed on record). The remaining scraped sludge and contaminated soil was lying near the entombed pits for want of additional disposal facility. However, during the visit, the left over sludge and contaminated soil could not be traced at site. Inspection of the surrounding area revealed that a huge heap of foreign soil of 5 metre height heap of foreign soil of 5 metre height (Photograph was placed on record) covering a large area, as also indicated in Fig. I, was raised on the sloppy ground at the foot hill within the industry premises. The storm water run-off pathway over the area showed indication of H-acid sludge leachate coming out of the heap. Soil in the area was sampled for analysis.

2.3 M/s. HACL has a number of other industrial units which are operating within the same premises without valid consents from the R.S.P.C.B. These plants are sulphuric acid (H2SO4), fertilizer (SSP) and vegetable oil extraction. The effluents of these units are not properly treated and the untreated effluent particularly from the acid plant is passing through the sludge dump area playing havoc (Photograph was placed on record). The final effluent was collected at the outlet of the factory premises during operation of these units, at the time of groundwater monitoring in September 1993, by the RSPCB. Its quality was observed to be highly acidic (pH : 1.08, Conductivity : 37,100 mg/1, SO4 : 21,000 mg/1, Fe : 392 mg/1, COD : 167 mg/1) which was also revealed in the earlier visits of the Central teams. However, these units were not in operation during the present visit. Under Para 4.2.1, the report stated inter alia: The sludge samples from the surroundings of the (presently nonexistent) solar evaporation and the contaminated soil due to seepage from the newly raised dump site also exhibited very high values of the above mentioned parameters. This revealed that the contaminated soil is buried under the new dump found by the team.

25. So much for the waste disposal by the respondents and their continuing good conduct. To the same effect is the Report of the R.S.P.C.B. which is dated October 30, 1993.

26. In view of the aforesaid Reports, all of which unanimously point out the consequences of the ‘H’ acid production, the manner in which the highly corrosive waste water (mother liquor) and the sludge resulting from the production of ‘H’ acid was disposed of and the continuing discharge of highly toxic effluents by the remaining units even in the year 1993, the authorities [R.S.P.C.B.] passed orders closing down, in exercise of their powers Under Section 33A of the Water Act, the operation of the Sulphuric Acid Plant and the solvent extraction plant including oil refinery of the fourth respondent with immediate effect. Orders were also passed directing disconnection of electricity supply to the said plants. The fourth respondent filed Writ Petition (C) No. 76 of 1994 in this Court, under Article 32 of the Constitution, questioning the said Orders in January, 1994. The main grievance in this writ petition was that without even waiting for the petitioner’s [Hindustan Agro Chemicals Limited] reply to the show-cause notices, orders of closure and disconnection of electricity supply were passed and that this was done by the R.S.P.C.B. with a malafide intent to cause loss to the industry. It was also submitted that sudden closure of its plants is likely to result in disaster and, may be, an explosion and that this consideration was not taken into account while ordering the closure. In its Order dated March 7, 1994, this Court found some justification in the contention of the industry that the various counter-affidavits filed by the R.S.P.C.B. are self-contradictory. The Board was directed to adopt a constructive attitude in the matter. By another Order dated March 18, 1994, the R.S.P.C.B. was directed to examine the issue of grant of permission to re-start the industry or to permit any interim arrangement in that behalf. On April 8, 1994, a ‘consent’ order was passed whereunder the industry was directed to deposit a sum of Rupees sixty thousand with R.S.P.C.B. before April 11, 1994 and the R.S.P.C.B. was directed to carry on the construction work of storage tank for storing and retaining ten days effluents from the Sulphuric Acid Plant. The construction of temporary tank was supposed to be an interim measure pending the construction of an E.T.P. on permanent basis. The Order dated April 28, 1994 noted the Report of the R.S.P.C.B. stating that the construction of temporary tank was completed on April 26, 1994 under its supervision. The industry was directed to comply with such other requirements as may be pointed out by R.S.P.C.B. for prevention and control of pollution and undertake any works required in that behalf forthwith. Thereafter, the matter went into a slumber until October 13, 1995. NEERI REPORT:

27. At this juncture, it would be appropriate to refer to the Report submitted by NEERI on the subject of “Restoration of Environmental Quality of the affected area surrounding Village Bichhri due to past Waste Disposal Activities”. This Report was submitted in April, 1994 and it states that it is based upon the study conducted by it during the period November, 1992 to February, 1994. Having regard to its technical competence and reputation as an expert body on the subject, we may be permitted to refer to its Report at some length:

18. The judgment also dealt with damaging of crops and fields. The finding of the Court was that the entire  19 contaminated area comprising of 350 hectares of contaminated land and six abandoned dump sites outside the industrial premises has been found to be ecologically fragile due to reckless past disposal activities practised by M/s. Silver Chemicals Ltd. and M/s. Jyoti Chemicals Ltd. Accordingly, it is suggested that the whole of the contaminated area be developed as a green belt at the expense of M/s. Hindustan Agrochemicals Ltd. during the monsoon of 1994.

19. Mr. Shanti Bhushan, learned senior counsel appearing for the respondents-industries made the following submissions:

(1) The respondents are private corporate bodies. They are not ‘State’ within the meaning of Article 12 of the Constitution. A writ petition under Article 32 of the Constitution, therefore, does not lie against them. (2) The RSPCB has been adopting a hostile attitude towards these respondents from the very beginning. The Reports submitted by it or obtained by it are, therefore, suspect. The respondents had no opportunity to test the veracity of the said Reports. If the matter had been fought out in a properly constituted suit, the respondents would have had an opportunity to cross-examine the experts to establish that their Reports are defective and cannot be relied upon.; (3) Long before the respondents came into existence, Hindustan Zinc Limited was already in existence close to Bichhri village and has been discharging toxic untreated effluents in an unregulated manner. This had affected the water in the wells, streams and aquifers. This is borne out by the several Reports made long prior to 1987. Blaming the respondents for the said pollution is incorrect as a fact and unjustified. (4) The respondents have been cooperating with this Court in all matters and carrying out its directions faithfully. The Report of the R.S.P.C.B. dated November 13, 1992 shows that the work of entombment of the sludge was almost over. The Report states that the entire sludge would be stored in the prescribed manner within the next two days. In view of this report, the subsequent Report of the Central team, R.S.P.C.B. and NEERI cannot be accepted or relied upon. There are about 70 industries in India manufacturing ‘H’ acid. Only the units of the respondents have been picked upon by the Central and Sate authorities while taking no action against the other units. Even in the matter of disposal of sludge, the directions given for its disposal in the case of other units are not as stringent as have been prescribed in the case of respondents. The decision of the Gujarat High Court in Pravinbhai Jashbhai Patel case shows that the method of disposal prescribed there is different and less elaborate than the one prescribed in this case. (5) The Reports submitted by the various so- called expert committees that sludge is still lying around within and outside the respondents’ complex and/or that the toxic wastes from the Sulphuric Acid Plant are flowing through and leaching the sludge and creating a highly dangerous situation is untrue and incorrect. The R.S.P.C.B. itself had constructed a temporary E.T.P. for the Sulphuric Acid Plant pursuant to the Orders of this Court made in Writ Petition (C) No. 76 of 1994. Subsequently, a permanent E.T.P. has also been constructed. There is no question of untreated toxic discharges from this plant leaching with sludge. There is no sludge and there is no toxic discharge from the Sulphuric Acid Plant. (6) The case put forward by the R.S.P.C.B. that the respondents’ units do not have the requisite permits/ consents required by the Water Act, Air Act and the Environment [Protection] Act is again unsustainable in law and incorrect as a fact. The respondents’ units were established before the amendment of Section 25 of the Water Act and, therefore did not require any prior consent for their establishment. (7) The proper solution to the present problem lies in ordering a comprehensive judicial enquiry by a sitting Judge of the High court to find out the causes of pollution in this village and also to recommend remedial measures and to estimate the loss suffered by the public as well as by the respondents. While the respondents are prepared to bear the cost of repairing the damage, if any, caused by them, the R.S.P.C.B. and other authorities should be made to compensate for the huge losses suffered by the respondents on account of their illegal and obstructionist policy adopted towards them. (8) The decision in Oleum Gas Leak. Case has been explained in the opinion of Justice Ranganath Misra, CJ., in the decision in Union Carbide Corporation etc. etc. v. Union of India etc. etc. [1991] INSC 252; AIR 1992 SC 248. The law laid down in Oleum Gas leak Case is at variance with the established legal position in other Commonwealth countries.

20. The Court dealt with the submissions of the respondents in great detail and did not find any merit in the same.

21. In the impugned judgment, the Court heavily relied on the observations of the Constitution Bench judgment in M.C. Mehta and Another v. Union of India and Others (1987) 1 SCC 395 popularly known as Oleum Gas Leak Case, wherein it was held thus: “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 non-delegable 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 preparation of substance or any other related element that caused the harm the enterprise must be held strictly liable for causing such harm as a part of the social cost for carrying on the hazardous or inherently dangerous activity. 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 hazardous or inherently dangerous activity as an appropriate item of its overheads. Such hazardous or inherently dangerous activity for private profit can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not….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 accident in the operation of such hazardous or inherently dangerous 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-`-vis the tortuous principle of strict liability under the rule in Ryland v. Fletcher [1865] EngR 436; (1868) LR 3 HL 330. We would also like to point out that the measure of compensation in the kind of cases referred to in the preceding paragraph must be corelated to the magnitude and capacity of the enterprise because such compensation must have a deterrent 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 the carrying on of the hazardous or inherently dangerous activity by the enterprise.”

22. This court in M.C. Mehta’s case (supra) further observed as under:

31. 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 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 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 brings 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 fails 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 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 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 industries 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 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 challenge 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 law in England does not recognise the rule of strict and absolute liability in cases of hazardous or inherently dangerous activities or the rule as laid down in Rylands v. Fletcher as is developed in England recognises certain limitations and exceptions. We in India must hold back our hands and not venture to evolve a new principle of liability since English courts have not done so. 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 dangerous industries which are concomitant 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.

23. This Court applied the principle of Polluter pays and observed thus:

“The polluter pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution. Under the principle it is not the role of government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer. The ‘polluter pays’ principle was promoted by the Organisation for Economic Co- operation and Development [OECD] during the 1970s when there was great public interest in environmental issues. During this time there were demands on government and other institutions to introduce policies and mechanisms for the protection of the environment and the public from the threats posed by pollution in a modern industrialised society. Since then there has been considerable discussion of the nature of the polluter pays principle, but the precise scope of the principle and its implications for those involved in past, or potentially polluting activities have never been satisfactory agreed.”

24. After hearing the learned counsel for the parties at length, this Court gave the following directions:

“1. The Central Government shall determine the amount required for carrying out the remedial measures including the removal of sludge lying in and around the complex of Respondents 4 to 8, in the area affected in village Bichhri and other adjacent villages, on account of the production of ‘H’ acid and the discharges from the Sulphuric Acid Plant of Respondents 4 to 8. Chapters-VI and VII in NEERI Report [submitted in 1994] shall be deemed to be the show-cause notice issued by the Central Government proposing the determination of the said amount. Within six weeks from this day, Respondents 4 to 8 shall submit their explanation, along with such material as they think appropriate in support of their case, to the Secretary, Ministry of Environment and Forests, Government of India (for short, M.E.F.). The Secretary shall thereupon determine the amount in consultation with the experts of his Ministry within six weeks of the submission of the explanation by the said Respondents. The orders passed by the Secretary, [M.E.F.] shall be communicated to Respondents 4 to 8- and all concerned – and shall also be placed before this Court. Subject to the Orders, if any, passed by this Court, the said amount shall represent the amount which Respondents 4 to 8 are liable to pay to improve and restore the environment in the area. For the purpose of these proceedings, the Secretary, [M.E.F.] and Respondents 4 to 8 shall proceed on the assumption that the affected area is 350 ha, as indicated in the sketch at Page 178 of NEERI Report. In case of failure of the said respondents to pay the said amount, the same shall be recovered by the Central Government in accordance with law. The factories, plant, machinery and all other immovable assets of Respondents 4 to 8 are attached herewith. The amount so determined and recovered shall be utilised by the M.E.F. for carrying out all necessary remedial measures to restore the soil, water sources and the environment in general of the affected area to its former state.

2. On account of their continuous, persistent and insolent violations of law, their attempts to conceal the sludge, their discharge of toxic effluents from the Sulphuric Acid Plant which was allowed to flow through the sludge, and their non-implementation of the Orders of this Court – all of which are fully borne out by the expert committees’ Reports and the findings recorded hereinabove – Respondents 4 to 8 have earned the dubious distinction of being characterised as “rogue industries”. They have inflicted untold misery upon the poor, unsuspecting villagers, despoiling their land, their water sources and their entire environment – all in pursuance of their private profit. They have forfeited all claims for any consideration by this Court. Accordingly, we herewith order the closure of all the plants and factories of Respondents 4 to 8 located in Bichhri village. The R.S.P.C.B. is directed to seal all the factories/ units/plants of the said respondents forthwith. So far as the Sulphuric Acid Plant is concerned, it will be closed at the end of one week from today, within which period Respondent No. 4 shall wind down its operations so as to avoid risk of any untoward consequences, as asserted by Respondent No. 4 in Writ Petition (C) No. 76 of 1994. It is the responsibility of Respondent No. 4 to take necessary steps in this behalf. The R.S.P.C.B. shall seal this unit too at the end of one week from today. The re-opening of these plants shall depend upon their compliance with the directions made and obtaining of all requisite permissions and consents from the relevant authorities. Respondents 4 to 8 can apply for directions in this behalf after such compliance.

3. So far as the claim for damages for the loss suffered by the villagers in the affected area is concerned, it is open to them or any organisation on their behalf to institute suits in the appropriate civil court. If they file the suit or suits in forma pauperis, the State of Rajasthan shall not oppose their applications for leave to sue in forma pauperis.

4. The Central Government shall consider whether it would not be appropriate, in the light of the experience gained, that chemical industries are treated as a category apart. Since the chemical industries are the main culprits in the matter of polluting the environment, there is every need for scrutinising their establishment and functioning more rigorously. No distinction should be made in this behalf as between a large-scale industry and a small-scale industry or for that matter between a large- scale industry and a medium-scale industry. All chemical industries, whether big or small, should be allowed to be established only after taking into considerations all the environmental aspects and their functioning should be monitored closely to ensure that they do not pollute the environment around them. It appears that most of these industries are water-intensive industries. If so, the advisability of allowing the establishment of these industries in arid areas may also require examination. Even the existing chemical industries may be subjected to such a study and if it is found on such scrutiny that it is necessary to take any steps in the interests of environment, appropriate directions in that behalf may be issued under Section 3 and 5 of the Environment Act, the Central Government shall ensure that the directions given by it are implemented forthwith.

5. The Central Government and the R.S.P.C.B. shall file quarterly Reports before this Court with respect to the progress in the implementation of Directions 1 to 4 aforesaid.

6. The suggestion for establishment of environment courts is a commendable one. The experience shows that the prosecutions launched in ordinary criminal courts under the provisions of the Water Act, Air Act and Environment Act never reach their conclusion either because of the work-load in those courts or because there is no proper appreciation of the significance of the environment matters on the part of those in charge of conducting of those cases. Moreover, any orders passed by the authorities under Water and Air Acts and the Environment Act are immediately questioned by the industries in courts. Those proceedings take years and years to reach conclusion. Very often, interim orders are granted meanwhile which effectively disable the authorities from ensuring the implementation of their orders. All this points to the need for creating environment courts which alone should be empowered to deal with all matters, civil and criminal, relating to environment. These courts should be manned by legally trained persons/judicial officers and should be allowed to adopt summary procedures. This issue, no doubt, requires to be studied and examined indepth from all angles before taking any action.

7. The Central Government may also consider the advisability of strengthening the environment protection machinery both at the Center and the States and provide them more teeth. The heads of several units and agencies should be made personally accountable for any lapses and/or negligence on the part of their units and agencies. The idea of an environmental audit by specialist bodies created on a permanent basis with power to inspect, check and take necessary action not only against erring industries but also against erring officers may be considered. The idea of an environmental audit conducted periodically and certified annually, by specialists in the field, duly recognised, can also be considered. The ultimate idea is to integrate and balance the concern for environment with the need for industrialisation and technological progress.”

25. The orders of this Court have not been implemented till date because by filing of number of interlocutory applications the respondent nos.4 to 8 have kept the litigation alive. These respondents have been successful in avoiding compliance of the judgment of this Court for more than fifteen years.

ORDER IN CONTEMPT PETITION
26. The original record of Writ Petition No. 967 of 1989 shows that the R.S.P.C.B. has filed a report of the National Environmental Engineering Research Institute, for short `NEERI’ in this Court on 6.1.1996. It is on this report that reliance was placed by the Court while disposing off the said writ petition. If the report which was submitted in this Court by the R.S.P.C.B. was different from the final report which was submitted by NEERI to the said Board, then it may have been possible to contend that the R.S.P.C.B. and its officers were guilty of fabrication. The affidavit of Mr. S.N. Kaul, Acting Director of NEERI clearly shows that what was filed in this Court was the copy of the final report dated 16.5.1994 which has been prepared by the NEERI. In other words, the NEERI itself states that the report filed in this Court by the Board was a copy of the final report and that there was no fabrication made therein by the Board or any of its officials.

27. It appears that the two scientists had inspected the report in the office of the NEERI and then observed that there has been a fabrication carried out by the Pollution Control Board. From what has been stated hereinabove, the charge of fabrication is clearly unfounded. It is possible that these two scientists may have seen the draft report which would be with NEERI but the original report when prepared would be one which was, ultimately, submitted to the sponsoring agency, namely, the R.S.P.C.B., and it is only a copy of the same which could have been retained by NEERI. Be that as it may, it is clear that what has been filed in this Court as being the final report of the NEERI was the copy of the final report which was received by it. There is no basis for contending that any of the respondents have been guilty of fabrication. The whole application to our mind is devoid of any merit. The contempt petition was dismissed with costs.

28. This Interlocutory Application has been filed on behalf of M/s Hindustan Agro Chemical Ltd. (for short “HACL”) whose industrial units situated in Udaipur were directed to be closed down by this Court on the premise that the said units had caused pollution in village Bichhri. This Court while directing for closure of the industrial units of HACL vide its order dated 13.2.1996 had further held that the units be not permitted to run until they deposit the remediation costs for restoring the environment in the area. The Court accordingly directed for the attachment of the properties of HACL.

29. There is a serious attempt to reopen the entire concluded case which stands fully concluded by the judgment of this Court delivered on 13th February, 1996. It may be pertinent to mention that even the review and curative petitions have also been dismissed. By this application, the applicant has also made an attempt to introduce before this Court the opinion of various experts, such as, Dr. M.S. Govil, Mr. S.K. Gupta, Dr. P.S. Bhatt and Ms. Smita Jain who visited the Bichhri village at the instance of the applicant in the year 2004 to provide a different picture regarding the conditions of water and soil in the area. These experts submitted reports to demonstrate that now hardly any remediation measures are required in Bichhri village or adjoining areas.

30. The applicant in this application is seeking a declaration that as of now there is no pollution existing in the area which may have been caused by HACL and accordingly there is no necessity for this Court to sell the assets of HACL in order to carry out any remediation in the area. This application also is a serious attempt to discredit the NEERI report of 1996 once again.

31. The sole object of filing of the present application is to introduce before this Court recent reports prepared by experts at the behest of the applicant to demonstrate to the Court that before embarking upon remediation measures and for the said purposes putting the properties of the applicant to sell, the status and conditions of water, soil and environment in the area as at present be reviewed with a view to realistically ascertain whether any measures for remediation are called for at all in the area and if yes, then the nature and the current cost of the same may be ascertained.

32. The applicant submitted that the report of the NEERI which was the basis for the earlier orders of this Court does not specify the nature of remediation measures which were considered necessary. The report merely indicates a lump sum amount without giving its break up as being a rough estimate of amount considered by them necessary for carrying out remediation measures.

33. It is stated in the application that the Secretary, MOEF after issuing notices to the parties called for the expert opinion of Water and Power Consultancy (WAPCO) and of Engineers India Limited (EIL), both these institutions were established by the Government of India. Both these institutions wrote to the Secretary that the data available was not sufficient to determine the cost of remediation, if any. The Secretary, who under the directions of the Court was directed to determine the amount within six weeks was left with no alternative but to simply affirm the lump sum amount determined by the NEERI.

34. It is stated that now almost fifteen years have passed since the final judgment of this Court and the situation in the area needs to be inspected again to find out as to whether any remediation is necessary or whether with passage of time nature on its own has taken care of the pollution in the area and because of the same no further remediation is required to be done in the area. This submission is being made without prejudice to the right of the applicant to contend that the applicant had not caused any pollution in the area but the applicant for the limited purpose of this application is ready to assume for the sake of arguments that the applicant had caused pollution in the area and that the nature in the last so many years has taken care of the pollution and on that basis there is no pollution existing in the area at present.

35. One of the issues that came up for consideration before this Court was the liability of the Union of India to take remediation measures in the area even if the applicant were not to pay the remediation costs as determined by the Secretary, MOEF. In these proceedings the counsel on behalf of the applicant made a suggestion to the Court that a fresh team be sent to the units of the applicant to find out whether there is still any pollution existing in the area and also whether any remediation as of today is required to be done or not. It was suggested during the course of hearing that the remediation cost being sought to be recovered from the applicant is not some kind of a decree in which the applicant is a judgment debtor but is merely a cost which the applicant is being made liable to pay on the “Polluter Pays” principle and there is no necessity of payment if there is no pollution existing. Till date there is no working out as to how the cost of remediation has been worked out by NEERI which had been affirmed by the Secretary, MOEF and which had been further affirmed by this Court.

36. According to the applicant, on the basis of the reports of some experts it is quite evident that there is no pollution in and around the factory premises of the applicant and accordingly there is no need for any remediation to be done in the area and the factory of the applicant is required to be handed over to the applicant forthwith so that the applicant may take proper steps to re-start the factory and generate resources to meet the liabilities of the financial institutions and banks.

37. It is further prayed that if this Court for any reason doubts the opinion of the experts placed by the applicant in any manner, then this Court may appoint any reputed expert/experts to visit the area and to submit a detailed report to this Court relating to the pollution existing in the area as of now. In other words, the effort is to reopen the concluded case and that also after the review and the curative petitions have been dismissed by this Court.

38. There are two main prayers in this application, the first prayer is that no remediation is required to be done in and around the industrial units of the applicant on the basis of the four reports placed by the applicant along with this application or on the basis of the report submitted by the expert/experts appointed by this Court; and secondly, that the Court may pass consequential order directing for closing of these proceedings and thus lift the attachment order dated 13.2.1996.

39. Reply Affidavits to the Interlocutory Application have been filed by the Union of India and other respondents. In the reply affidavits of the respondents it is mentioned that on 13.2.1996 this Court directed closure of the units of the applicant for the reason that the said industries had caused environmental pollution in and around the areas where applicant’s units are located. This Court had further directed that the units of the applicant would be permitted to operate only after depositing necessary costs for taking measures to restore the environment of the areas. The judgment of this Court was based upon a report dated 5.4.1994 of the NEERI which was filed by the R.S.P.C.B. on 6.1.1996.

40. The applicant questioned the credibility of the NEERI’s report. It is submitted that the remediation cost for restoring the environmental quality of the area was only Rs.3 crores whereas in the report submitted in this Court the remediation cost was stated to be Rs.37.385 crores.

41. The applicant prayed that in the interest of justice the report dated 25.1.2005 submitted by the expert group to the MOEF be ignored and either accept the reports prepared at the instance of the applicant or fresh direction be issued for constitution of an independent expert group not having any association with NEERI to carry out investigation with relation to the environment in the village Bichhri.

42. According to the applicant, the report of NEERI relied upon by this Court was not the authentic report which was officially prepared. Even the copy which was actually filed in this matter was without any supporting affidavit and the same was merely handed over to this Court at the time of hearing. The applicant made his own enquiry and was officially given the report of NEERI. After comparing the report made available to the applicant from the one filed in this matter it came to light that the report actually filed in this Court was not bearing any resemblance to the conclusion and findings mentioned in the actual report.

43. It was also submitted that there have also been attempts on the part of authorities to shield the role of M/s. Hindustan Zinc Limited in causing environment damage in village Bichhri. This issue needs to be addressed and the same can be possible only if an organization having credibility and not having any association with the NEERI actually carries out a detailed investigation.

44. Reply affidavit has also been filed by the R.S.P.C.B. It is stated in the said affidavit:

3 (i) That M/s. Hindustan Agro Chemical Ltd., Village Bichhri, Tehsil Girva, District Udaipur, Rajasthan; respondent no.4, established its Sulphuric Acid and Oleum Plant in the year 1985 without obtaining prior consent of the State Board under the provisions of Sections 25 and 26 of the Water (Prevention and Control of Pollution) Act, 1974; and section 21 of the Air (Prevention an Control of Pollution) Act, 1981;

(ii) That the State Board vide its letter dated 16.2.1987 refused consent to respondent no.4 under the provisions of section 25 and 26 of the Water Act for discharging trade effluent from its Sulphuric Acid Plant.

(iii) That the State Board issued directions vide order dated 26.11.1993, for closure of Sulphuric Acid Plant under the provisions of section 33A of the Water Act, 1974 as it was discharging trade effluent without proper treatment and in excess of the prescribed standards. The District Collector Udaipur implemented the directions of closure of Sulphuric Acid Plant passed by the State Board.

4 (i) That M/s. Hindustan Agro Chemical Ltd., Village Bichhri, Tehsil Girva, District Udaipur, Rajasthan; respondent no.4 established its Solvent Extraction coupled with Oil Refinery Plant in the year 1991 without obtaining prior consent of the State Board under the provisions of section 25 and 26 of the Water Act and section 21 of the Air Act.

(ii) That the State Board vide its letter dated 24.7.1992 refused consent to respondent no.4 under the provisions of section 25, 26 of the Water Act for discharging trade effluent from its Solvent Extraction Plant.

(iii) That the State Board issued directions, vide order dated 26.11.1993, for closure of Solvent Extraction Plant under the provisions of section 33A of the Water Act, as it was discharging trade effluent without proper treatment and in excess of the prescribed standards. The District Collector Udaipur implemented the directions of closure of Solvent Extraction Plant passed by the State Board. 5 (i) That respondent no.4 preferred a petition before this Court being Writ Petition (C) No.76 of 1994 Hindustan Agro Chemical Ltd. & Anr. v. State of Rajasthan & Ors. challenging the directions dated 26.11.1993 of the State Board closing down Sulphuric Acid Plant and Solvent Extraction Plant under the provisions of section 33A of the Water Act, 1974. It was alleged that the action of the State Board closing down Sulphuric Acid Plant and Solvent Extraction Plant was arbitrary and highhanded.

(ii) That this Court during hearing in the matter on 7.3.94, in WP (C) No.76/94 passed the following direction inter-alia:- “We thought of having the complaints of the petitioner as to harassment, examined by an independent Commissioner to ascertain the bona fides of the action taken by the officers of the Pollution Control Board and also to fix their responsibility. But we thought that at this stage it would be appropriate to ask the learned Advocate-General, who appears for the State of Rajasthan, to have the matter examined at his instance and direct the Pollution Control Board to act more constructively and to suggest measures by which the Plant could be re-commissioned immediately.”

(iii) That the said writ petition again came up for hearing on 18.3.94 before this Court. This Court was pleased to pass the following directions inter alia:- “In the meanwhile, the Pollution Control Board is not prevented from and it shall indeed by its duty to indicate what, according to it, are such minimal requirements for grant of permission to re-start the industries or to permit any interim arrangements in this behalf.”

(iv) That in pursuance of the aforesaid order dated 18.3.94, the respondent Board took appropriate steps and granted permission to restart industry subject to certain conditions communicated vide permission order.

It is submitted that the industry was restarted. However, on subsequent inspection it was found that the industry was violating the prescribed norms and also has not bothered to comply with the conditions mentioned in the permission order. As such an application was moved before this Court for appropriate directions in the matter.

(v) That despite all efforts for re-commissioning of the plants, respondent no.4 failed to take measures required for prevention and control of pollution.

(vi) That this court vide order and judgment dated 13.2.96, dismissed the above mentioned writ petition in view of the decision in writ petition (Civil) No.967 of 1989.

6(i) That M/s. Hindustan Agro Chemical Ltd., Village Bichhri, Tehsil Girva, District Udaipur, Rajasthan, respondent no.4, established its Chlorosulphonic Acid Plant in June 1992 without obtaining prior consent of the State Board under the provisions of Section 25 and 26 of the Water Act and section 21 of the Air Act.

(ii) That the State Board issued directions vide order dated 30.12.1992, for closure of Chlorosulphonic Acid Plant under the provisions of section 33A of the Water Act and 31A of Air Act. The District Collector Udaipur implemented the directions of closure of Chlorosulphonic Acid Plant passed by the State Board.

(iii) That respondent no.4 preferred a petition before this Court being Writ Petition (C) No.824 of 1993, Hindustan Agro Chemical Ltd. & Anr. v. State of Rajasthan & Ors., challenging the directions dated 30.12.1992 of the State Board closing down Chlorosulphonic Acid Plant under the provisions of Section 33A of the Water Act, and 31A of the Air Act. It was alleged that the action of the State Board closing down Chlorosulphonic Acid Plant was arbitration and highhanded. (iv) That this Court dismissed the above mentioned writ petition by judgment dated 13.2.96 in W.P. (Civil) No.824 of 1993 in view of the decision in Writ Petition (Civil) 967 of 1989.

7(i) That M/s Silver Chemicals, Village Bichhri, Tehsil Girva, District Udaipur Rajasthan, respondent no.5 came into existence in February 1988 to manufacture H-Acid and continued its operations upto March 1989 without obtaining prior consent of the State Board under the provisions of section 25 and 26 of the Water Act and Section 21 of the Air Act.

(ii) That the State Board vide its letter dated 9.1.1989 refused consent application submitted by M/s. Silver Chemicals under the provisions of Section 25/26 of the Water Act as the unit was discharging trade effluent beyond the prescribed standard and without having installed a plant for the treatment of trade effluent. The State Board under the provisions of section 25(5) of the Water Act also imposed several conditions on the industry and informed it that failure to make compliance of the conditions of the conditions shall render it liable for prosecution. (iii) That the industry however continued its operations and looking to the continued violations of the provisions of the aforesaid Acts, the State Board filed an injunction application under the provisions of section 33 of the Water Act for restraining the industry from discharging polluted trade effluent in excess of the prescribed standards and from causing pollution of underground water n 24.3.89 before the court of Chief Judicial Magistrate, Udaipur.

(iv) That the Court of Chief Judicial Magistrate, Udaipur by order dated 15.6.1989 issued injunction against M/s. Silver Chemicals restraining it from discharging polluted trade effluent without any treatment.

(v) That the State Board also filed a criminal complaint No.176/99 against M/s. Silver Chemicals and its Director on 24.3.89 under the provisions of section 43 and 44 for violation of the provisions of section 24, 25 and 26 of the Water Act.

(vi) That the court of Chief Judicial Magistrate, Udaipur by order and judgment dated 11.8.2004 has convicted M/s. Silver Chemicals with fine of Rs.10 lakh each under section 43 & 44 of the Act. The Court has also sentenced Shri O.P. Agarwal, Director of the said company with simple imprisonment of one year and fine of Rs.10,000/- under section 43 and simple imprisonment of six months and fine of Rs.10,000/- under section 44 of the Act. The company and its Director have preferred criminal appeal no.92 of 2004 under section 374 (3)(a) of the Code of Criminal Procedure before the Sessions Judge, Udaipur. The appeal is pending before the Ld. Sessions Judge.

8(i) That M/s. Rajasthan Multi Fertilizers, Vilalge Bichhri, Tehsil Girva, District Udaipur, Rajasthan respondent no.6, established NKP Fertilizer Plant at the site, without obtaining previous consent of the State Board under the provisions of section 25, 26 of the Water Act and section 21 of the Air Act.

(ii) That the State Board on 20.2.89 issued a notice and directed respondent no.6 to obtain consent of the State Board under the provision of the Water Act for discharging trade effluent from its plant.

9(i) That M/s. Phosphate India, Vilalge Bichhri, Tehsil Girva, District Udaipur, Rajasthan, respondent no.7 established Single Super Phosphate Plant at the site, without obtaining previous consent of the State Board under the provisions of section 25, 26 of the Water Act and section 21 of the Air Act.

(ii) That the State Board on 20.2.89 issued a show cause notice and directed respondent no.7 to obtain consent of the State Board under the provisions of the Water Act for discharging trade effluent from its plant.

10(i) That M/s Jyoti Chemicals, Village Bichhri, Tehsil Girva, District Udaipur, Rajasthan; respondent no.8 established its plant, at the site, in the year 1987, to manufacture Ferric Alum without obtaining previous consent of the State Board under the provisions of section 25 and 26 of the Water Act and section 21 of the Air Act.

(ii) That the State Board vide its letter dated 4.8.1988 issued N.O.C. to respondent no.8 for adequacy of pollution control measures for Ferric Alum Plant. The respondent No.8, however, started manufacturing H-Acid and continued its operation till March, 1989.

(iii) That the State Board vide letter dated 30.5.88 withdrew the NOC for the reason that respondent no.8 violated the conditions of the NOC.

(iv) That the State Board vide its letter dated 30.5.89 also refused application filed by respondent no.8 for discharging trade effluent under section 25, 26 of the Water Act for the reasons, inter alia, that it failed to install pollution control measures and changed its product from Ferric alum to H-Acid without the consent of the State Board.

11. That this Court by its common order and judgment dated 13.2.96 in the aforesaid Writ Petition (Civil) No.967/89, Indian Council for Enviro Legal Action v. Union of India & Others; Writ Petition (Civil) No.76/94 Hindustan Agro Chemical v. State Pollution Control Board & Others and Writ Petition (Civil) No.824/93 Hindustan Agro Chemical v. State Pollution Control Board and Others attached the factories, plant, machinery and all other immovable assets of respondent nos.4 to 8. The State Pollution Control Board was directed to seal all the factories, plants of respondent nos.4 to 8 forthwith. The State Board in compliance of the aforesaid direction sealed the plants of respondent nos.4 to 8 as directed by this Court.

45. The written submissions were also filed by the Union of India and the R.S.P.C.B. in response to the order dated 03.05.2005 in IA No.36. It is stated in the said affidavit:

2. That the Ministry of Environment & Forests, Government of India vide its affidavit dated 29.1.2005 submitted a summary report prepared by a consortium of SENES Consultants Limited, Canada; and NEERI, Nagpur before this Court. The Ministry of Environment & Forest, Government of India and the Rajasthan State Pollution Control Board are making joint submissions herein below for remediation of the environmental damage caused in village Bichhri. Based on the recommendations given in the report of July, 2002, prepared by SENES/NEERI for remediation of degraded environment of Bichhri, District Udaipur, Rajasthan, the following works will be undertaken on priority- wise:

First Priority:

Phase-I: Source Remediation (Short Term) 7 Clean up of water near the plant site with highest H-acid contamination.
7 Remediation of contaminated soil and sludge management within the plant site.
Second Priority:
Phase-II: Hot Spots Remediation (Medium Term) 7 Clean up of ground water at hot spots.
Third Priority:
Phase-III: Residual Contamination Remediation (Long Term) 7 Clean up of residual contaminated water.
Fourth Priority:
Phase-IV (long-term): 7 Clean up of contaminated soil outside plant boundary.

3. While dealing with the first phase called as short- term remedies, it has been divided in two parts namely:- (i) Clean up of water near the plant site with highest H-acid contamination.

(ii) Soil and Sludge management within the plant site.

46. The said recommendation given in the SENES/NEERI report further suggests as follows:

“Considering the available water quality data the following alternatives were evaluated in the preliminary review:

7 Lime soda process plus Fe coagulation 7 Reverse osmosis (RO) 7 Electro-dialysis 7 Ion exchange 7 Activated carbon Sorption and 7 Activated carbon filtration Similarly, for the second short-term measures namely, the remediation of soil and sludge management many alternative suggestions have been made. The said report has suggested the following four alternatives for clean up of soil:

7 Excavation and relocation in a capped landfill.

7 Ex-situ remediation (soil washing) 7 Phyto-remediation 7 Natural attenuation

4. That out of the aforesaid alternative technologies, the most suitable alternative with regard to the human habitation, plantation and vegetation etc., will have to be decided keeping in view the local conditions and priority requirement. This job will have to be done by Technical Advisory Committee having sufficient technical know-how in respect of the remedial measures. The committee may also like to look into the techno-economic feasibility in this regard.

5. In order to go ahead with the above mentioned works on priority-wise, the following steps will be taken:

a) Reconfirmation of National Productivity Council (NPC) New Delhi as the Project Management Consultant (PMC) by the Ministry of Environment & Forests (MoEF). NPC was the PMC for the purpose of conducting feasibility studies by SENES & NEERI in pursuance of the directions dated 4.11.1997 of this Court. The role of PMC will be to – i) Co-ordinate preparatory activities such as bidding and selection of a suitable expert agency for undertaking remediation work before execution of the remediation works.

ii) Organise Technical Advisory Committee meetings from time to time to guide, review and supervise the progress of remediation works.

iii) Co-ordinate activities/works pertaining to actual remediation and submit progress reports to the MoEF.

b) Constitution of a Technical Advisory Committee by the MoEF having representations of MoEF, CPCB, Government of Rajasthan, RSPCB, NEERI, NPC & Technical Experts of National repute in the relevant fields to – i) Evaluation the recommendations of SENES NEERI Report (July 2002);

ii) Finalise the detailed line of action and plan for remediation of environmental damages;

iii) Review the alternative technologies from the technologies recommended in the SENES-NEERI report and to recommend suitable technology for remediation of contaminated water and soil.

iv) Supervise the work of actual remediation.

6. As the remediation of environmental damage would require a large sum of money…

47. All issues raised in this application have been argued and determined by an authoritative judgment of this Court about fifteen years ago. This application has been filed to avoid liability to pay the amount for remediation and costs imposed by the Court on the settled legal principle that polluter pays principle. In other words, the applicant through this application is seriously making an effort to avoid compliance of the order/judgment of this Court delivered fifteen years ago. The tendency must be effectively curbed. The applicant cannot be permitted to avoid compliance of the final order of this court by abusing the legal process and keep the litigation alive.

48. The applicant is in business where sole motto of most businessmen is to earn money and increase profits. If by filing repeated applications he can delay in making payment of huge remediation costs then it makes business sense as far as the applicant is concerned but the Court must discourage such business tactics and ensure effective compliance of the Court’s order. It is also the obligation and bounden duty of the court to pass such order where litigants are prevented from abusing the system. I.A. NO. 44 IN W.P.(C)No.967 OF 1989

49. In this matter the final judgment of the court was delivered on 13.2.1996. A Review Petition filed was also dismissed. Thereafter, a Curative Petition was filed and that was also dismissed on 18.7.2002. The applicant did not comply with the orders passed by this court even after dismissal of curative petition and has filed this application.

50. This application has been filed by respondent No. 4, Hindustan Agro Chemicals Limited. By this application respondent No. 4 sought an investigation into the reports of April, 1994 prepared by the NEERI, which was employed by the R.S.P.C.B. in September, 1992 to evaluate the extent of contamination done by the applicant’s plant in Bichhri village in Rajasthan.

51. It is on the basis of the report that applicant’s units in Bichhri village were closed down and the applicant was asked to pay a sum of Rs.37.385 crores towards the costs of remediation to the government. The reports of April, 1994 had alleged that the applicant’s units polluted the whole area by discharging its H-acid on the land which would cost Rs.37.385 crores to clean-up.

52. According to the applicant various experts employed by the applicant had found no evidence of H-acid pollution from the applicant’s units in the area. In the application, serious effort has been made to discredit the NEERI report. It may be pertinent to mention all objections of the said reports were heard and disposed by the judgment dated 13.2.1996:

“In fact, while one report mentioned the cost of remediation to be 3 crores, the one which was presented to the Court showed it as 37.385 crores.

As per the original report it was reported by RSPCB that most of wells within 1.5 k.m. radius of the plants were contaminated while the modified report says, wells within 6.5 k.m. radius.

While the original report noted that the sludge had been stored under the supervision of the RSPCB whereas the modified report stated that the industry had scattered the sludge in an unmindful- clandestine manner causing gross pollution to avoid penal liability.”

53. According to the reports of the experts, (who visited the site at the instance of the applicant, after the dismissal of Review and Curative petition) the report of the NEERI filed in April 1994 was untenable and unsustainable. According to the applicant the said report was fabricated. In the application it is also mentioned that this is a fraud in which this court had been unwittingly dragged by the officers of the RSPCB and the NEERI to destroy several industries and the livelihood of about 1700 persons and it has been prayed that this court to direct an investigation into the report of April, 1994 prepared by the NEERI at the instance of the RSPCB to examine whether it was false or malafide.

54. A reply has been filed on behalf of the RSPCB. At the outset it has been mentioned that similar challenge by the respondent Nos. 4 to 8 regarding the factum of pollution in village Bichhri and it being attributed to the said respondents had been dismissed by this court on many occasions. This court conclusively reached the finding that the respondent Nos. 4 to 8, by indiscriminate discharge of their polluted trade effluent is in utter disregard and violation of the provisions of the Pollution Control and Environmental Protection Laws had caused intense severe pollution of underground water and of soil in village Bichhri. The veracity of the report of the NEERI has already been upheld by this court. This court on 4.11.1997 passed the following order:

“… … …In the affidavit of Progress Report, the Government of India has proposed that for the purpose of undertaking the work relating to remedial measures for the National Productivity Council (NPC) may be appointed as the Project Management Consultants and on the basis of the feasibility report submitted by the NPC, tenders may be invited for entrusting the remedial work. It is also proposed that a High Level Advisory Committee would be constituted consisting of the representatives from (1) Ministry of Environment & Forests (2) National Productivity Council (3) Central Pollution Control Board (4) NEERI and (5) Rajasthan State Pollution Control Board to review periodically and give directions and also to approve decisions to be taken. According to the said affidavit work would be undertaken in two phases. The cost of Phase-I would be Rs.1.1 crores (Rs.50.00 lakhs for Project Management Consultancy and Rs.60.00 lakhs for feasibility studies) and the cost of Phase-II (Actual Remediation) would come to Rs.40.1 crores. In the additional affidavit of Dr. M. Sengupta detailed reasons have been given why it has not been possible to accept the report of the Experts on which reliance was placed by the respondents. We have perused the said reasons given in the said additional affidavit filed on behalf of the Ministry of Environment and Forests and keeping in view the reasons given therein. We are unable to accept the report of the Experts on which reliance has been placed by the respondents. We accept the proposal submitted by the Government of India for the purpose of taking remedial measures by appointing National Productivity Council as the Project Management Consultant. In our opinion, the Ministry of Environment & Forests, Government of India has rightly made a demand of Rs.37.85 crores. … … …Since, we have accepted the aforesaid proposal of the Government of India, we put it to Shri N.D. Nanavati that in order that further steps as per the said proposal are taken the respondents should immediately deposit a sum of Rs.5.00 crores in advance so that the National Productivity Council may be asked to undertake the work of Project Management Consultant and have the feasibility studies conducted and prepare the Terms of Reference for inviting the tenders. Shri Nanavati, after taking instructions from the representative of the respondents, expressed the inability of the respondents to deposit the said amount and states that they are in a position to deposit Rs.5.00 lakhs only. In these circumstances, the only alternative left is to direct that the Ministry of Environment and Forests shall take the necessary steps to implement the directions contained in the judgment of this Court. All that we will say at this stage is that the decision regarding remedial measures taken on the basis of the NEERI Report shall be treated as final. The I.As. are disposed of accordingly.”

55. In the reply of RSPCB it is mentioned that respondent No. 4 had preferred a Contempt Petition (Criminal) No. 7/1999 entitled Hindustan Agro Chemical v. Alka Kala and others and this court dismissed the contempt petition with the costs computed at Rs.10,000/- while observing that there was no basis for contending that any of the respondents have been guilty of fabrication and the whole contempt application was without any merit.

56. In the reply it is also mentioned that the respondent Nos. 4 to 8 had been operating their industrial plants without obtaining consent from the State Board, as required under the provisions of the Water (Prevention & Control of Pollution) Act, 1974 and the Air (Prevention & Control of Pollution) Act, 1981 and discharging polluted trade effluent indiscriminately without providing any treatment so as to bring it in conformity to the prescribed standards. Discharge of this trade effluent by the respondent Nos. 4 to 8 resulted into severe pollution of underground water and of soil. For the above violation, the State Pollution Control Board filed a Criminal complaint No. 176/1999, under the provisions of Section 43 read with Sections 24 and 44 read with Sections 25/26 of the Water Act before the Court of Chief Judicial Magistrate, Udaipur. The learned Chief Judicial Magistrate, Udaipur by its order dated 11.8.2004 found the accused guilty and convicted him with imprisonment and fine both under Sections 43 and 44 of the Water Act. The said conviction and sentence was upheld by the learned Session Judge, Udaipur in its judgment dated 21.7.2005. Against the judgment dated 21.7.2005 of the learned Sessions Judge, the accused preferred Criminal Revision Petition No. 634/2004 before the Rajasthan High Court at Jodhpur. The Criminal Revision Petition is pending adjudication before the High Court of Rajasthan at Jodhpur.

57. While denying the averments of the application, the RSPCB has relied on paragraphs 14 and 15 of the affidavit dated 18.9.2007 filed by M. Subba Rao, Director, MOEF. The said paras reads as under:

“14. The applicant is making reference and reliance upon the recent affidavit filed by the Ministry of Environment and Forests, Government of India dated 08.03.2007 to contend that the earlier report submitted by the NEERI was a result of falsehood/malafide on the parts of some officers responsible for preparing the report. At the outset it is submitted that neither in the report nor in the affidavit of the Union of India dated 08.03.2007 it has been stated that the earlier report submitted by National Environmental Engineering Research Institute was incorrect. The affidavit submitted by the Union of India on 08.03.2007 has only given the present status. The report submitted by Union of India along with the affidavit has not dealt with the correctness/incorrectness of the earlier reports submitted by National Environmental Engineering Research Institute to this Hon’ble Court. It is submitted that on the basis of the affidavit filed by Union of India on 08.03.2007 and the report submitted therewith, it cannot be contended that the report submitted by National Environmental Engineering Research Institute in April 1994 was incorrect. It is further submitted that the experts of Union of India have also not gone into an examined the merits of the earlier reports.

15. It is seen from paras 46-47 of the judgment of this Hon’ble Court reported in the order dated 13.2.1996 (reported at [1996] INSC 244; (1996) 3 SCC 212 at 227- 231) that a challenge was already attempted by the respondents on the reports of NEERI before this Hon’ble Court at the time of hearing.”

58. It may be pertinent to mention here that on 22.8.1990 this court had appointed Mr. Mohinder Vyas as Commissioner to inspect the wells and assess the degree of pollution created by the operation of H-acid plant and the nature and extent of the remedial operations. In pursuance of the directions, the Commissioner visited the site from 31st August to 4th September, 1990, conducted detailed survey and also collected samples from a number of wells and drains. The Commissioner in his report dated 20.7.1991 indicated that the overall quality of ground water in the area had become highly polluted, the water had become unfit for consumption by man or animal and was not even fit for irrigation.

59. This Court by its order dated 17.2.1992 further directed that the MOEF to inspect the area and ascertain about the existence and extent of Gypsum and Iron based sludge over there. In pursuance of the above directions, a team of experts of MOEF visited the site on 6.3.1992 and assessed the position in regard to storage of sludge collected from various sites and presence of sludge in the factory premises. Samples of water of wells around the factory were also collected for analysis. The Union of India in an affidavit filed before this court in pursuance of the said directions stated as follows:

“… … … That the report would reveal that the extent of pollution in ground water seems to be very great and the entire aquifer may be effected due to the pollution caused by the industry.

… … …As the mother liquor produced during the process (with pH-1.0) was highly acidic in nature and was indiscriminately discharged on land by the unit, it is possible that this might have eroded the soil and caused the extensive damage. It is also possible that organic contents of mother liquor would have gone into soil with water to give radish colour.

In another inspection in July, 1992 carried out by a team of experts of Ministry of Environment & Forests and Central Pollution Control Board, it was observed:

“… … …A part of effluent from Sulphuric Acid Plant is being discharged inside the factory. The effluent dissolves H-acid sludge, which on percolation is likely to cause further pollution of ground water… … …”

60. In pursuance to the order dated 15.7.1992 of this court, the officials of the MOEF conducted inspection on 7.10.1992 and observed as under:

“… … …Untreated effluent from the solvent extraction plant and the sulphuric acid plant were passing through the sludge dump sites unabated, which was resulting in further leaching of colour to ground water. … … …”

61. The MOEF in the month of September, 1993 submitted a report which reads as under:

“5.0 Conclusion

5.1 On the basis of the observations and analysis results, it is concluded beyond doubt that the sludge inside the entombed pit is the contaminated one as is evident from the number of parameters analysed.

5.2 The ground water is also contaminated due to discharge of H-acid plant effluent as well as H-acid sludge/contaminated soul leachates as shown in the photographs and also supported by the results. The analysis results revealed good correlation between the colour of well water and H-acid content in it. The analysis results show high degree of impurities in sludge/soil and also in well water which is a clear indication of contamination of soil and ground water due to disposal of H-acid waste.”

62. The report which was based upon the inspection of the area in September, 1993 revealed many other alarming features. In para 2, under the heading “Site Observations and Collection of Sludge/Contaminated Soil Samples”, the following facts were stated:

“2.1 The Central team, during inspection of the premises of M/s. HACL observed that H-acid sludge (iron/gypsum) and contaminated soil are still lying at different places, as shown in Fig.1, within the industrial premises (photograph 1) which are the leftovers. The area, where the solar evaporation pond was existing with H-acid sludge dumped here and there, was observed to have been leveled with borrowed soil (photograph 2). It was difficult to ascertain whether the sludge had been removed before filling. However, there are visual evidences of contaminated soil in the area.

2.2 As reported by the Rajasthan State Pollution Control Board (RSPCB) representatives, about 720 tonne out of the total contaminates soil and sludge scraped from the sludge dump sites id disposed in six lined entombed pits covered by lime/fly ash mix, brick soling and concrete (photographs 3 and 4). The remaining scrapped sludge and contaminated soil was lying near the entombed pits for want of additional disposal facility. However, during the visit, the left over sludge and contaminated soil could not be traced at site. Inspection of the surrounding area revealed that a huge heap of foreign soil of 5 meter height (photograph 5) covering a large area, as also indicated in Fig. 1, was raised on the sloppy ground at the foothill within the industry premises. The storm water run-off pathway over the area showed indication of H- acid sludge leachates coming out of the heap. Soil in the area was sampled for analysis.

2.3 M/s. HACL has a number of other industrial units which are operating within the same premises without valid consents from the Rajasthan State Pollution Control Board (RSPCB). These plants are Sulphuric Acid (H SO ), fertilizer (SSP) and vegetable oil 2 4 extraction. The effluent of these units are not properly treated and the untreated effluent particularly from the acid plant is passing through the sludge dump area playing havoc (photograph 7). The final effluent was collected at the outlet of the factory premises during operation of these units, at the time of ground water monitoring in September, 1993, by the RSPCB. Its quality was observed to be highly acidic ( H: 1.08, Conductivity: 37,100 mg/l, p SO :21,000 mg/l, Fe: 392 mg/l, COD: 167 4 mg/l) which was also revealed in the earlier visits of the Central teams. However, these units were not in operation during the present visit.”

63. Under para 4.2.1, the reported stated inter alia:

“The sludge samples from the surroundings of the (presently non-existent) solar evaporation and the contaminated soil due to seepage from the newly raised dump site also exhibited very high values of the above mentioned parameters. This revealed that the contaminated soil is buried under the new dump found by the team.”

64. In the reply it is also mentioned that the NEERI submitted its report in April, 1994 on the restoration of environmental quality of the area surrounding village Bichhri, severally affected due to discharge of trade effluent and other industrial wasters by respondent Nos. 4 to 8. The report was submitted before this court in pursuance of its directions in the matter. The report states that the studies were carried out by the NEERI between September, 1992 and February, 1994. The report had been considered by this court at length on its own merits and the observations of the court on the report are contained in the judgment pronounced by it on 13.2.1996.

65. In the reply it is also stated that this court besides considering the report of the NEERI also looked into a number of reports pertaining to inspections, surveys, studies and analysis of wastes and waste waters carried out by the experts of the MOEF, Central Pollution Control Board (for short `CPCB’) and the R.S.P.C.B on various occasions, while hearing the matter and pronouncing the judgment therein on 13.2.1996. Therefore, it is totally incorrect and erroneous to contend that the order dated 13.2.1996 was solely based upon the report submitted by the NEERI. Para IV of the conclusions of the judgment dated 13.2.1996 observed as follows:

“… … …this court has repeatedly found and has recorded in the orders that it is respondents who have caused the said damage. The analysis reports obtained pursuant to the directions of the court clearly establish that the pollution of the wells is on account of the wastes discharged by respondent Nos. 4 to 8 i.e. production of `H’ Acid… … …”

66. In its reply the RSPCB further stated that the respondent Nos. 4 to 8 filed a Writ Petition No. 338/2000 challenging the judgment of this court dated 13.2.1996. This court dismissed the petition, by order dated 18.7.2002, having regard to the principles laid down in Rupa Ashok Hurra v. Ashok Hurra & Another (2002) 4 SCC 388.

67. The RSPCB also stated in its reply that this court by order dated 4.11.1997 directed the MOEF to take necessary steps to implement the directions contained in the judgment dated 13.2.1996 and accepted the proposals submitted by the MOEF for the purpose of taking remedial measures by appointing National Productivity Council (for short NPC), New Delhi as Project Management Consultant. Pursuant to these directions, the MOEF awarded the work of conducting feasibility studies for suggesting alternative methods for remediation of affected environment in Bichhari, to a consortium of consultants namely: M/s. SENES Consultant Limited, Canada and the NEERI, Nagpur. The above consultants in their report stated that an area of 540 hectares had been affected due to industrial waste and needed remediation of contaminated ground water and soil. The said report categorically stated about contamination of ground water and of soil by H-acid. The report has been submitted by the MOEF before this court in January, 2005. This court on 9.12.2004 made the following order:

“… … …The company M/s. Hindustan Agro Chemical Limited, which is one of the respondents in the main Writ Petition has filed a Petition supported by an affidavit of one Shri D.P. Agarwal, a Director in the respondent Nos. 4-8 companies enclosing therewith certain reports of the experts. It is the claim of the applicant that at present, the effects caused by pollution on account of operation of the concerned industries do not exist and remedial measures, as contemplated in the main judgment of this Court need not be undertaken. The respondents namely: UOI, the State of Rajasthan and the Rajasthan State Pollution Control Board as well as the petitioner will give their responses, if any, to this I.A. The Government of India may depute an expert and be along with the expert nominated by the Rajasthan State Pollution Control Board and the nominee of the State Rajasthan shall visit the spot after giving intimation to the Petitioner-Indian Council for Enviro Legal Action and verify the facts stated in the affidavit and report the latest position to the Court by the next date of hearing… … …”

68. An additional affidavit was also filed on behalf of MOEF on the same lines and graphic description of existence of the pollution has affected the ground water to an extent that the entire aquifer may be affected due to the pollution caused by the industry. The report further reveals that the problem in relation to the area in question is basically the contamination of water and the major factor contributing to the cause has been the improper disposal of sludge and liquid wastes from the unit. It has been recommended by the expert team that due to leachable components of the sludge the industry should prepare a double line pit containing impervious liners comprising impervious clay and polyethylene sheets. The sludge should be placed in this lined pit and covered with water proof layering to such extent that no water can percolate through the stored sludge. The soil in the premises of the industry has also been contaminated by the disposal of liquid effluents as well as the sludge on the ground. The contaminated soil needs to be removed and the entire area should be revamped. All industrial activities going on in the premises should be stopped to enable the revamping process.

69. Mr. Shanti Bhushan and Mr. Prashant Bhushan, learned senior counsel in the written submissions filed by the respondent Nos. 4 to 8 have quoted this court’s direction. The same is reproduced as under :- “The Central Government shall determine the amount required for carrying out the remedial measures….The Secretary shall thereupon determine the amount in consultation with the experts of the Ministry………the said amount shall represent the amount which respondents 4 to 8 are liable to pay to improve and restore the environment in the area….the factories, plant, machinery and all other immovable assets of respondents 4 to 8 are attached herewith. The amount so determine and recovered shall be utilized by the MEF for carrying out all necessary remedial measures to restore the soil, water resources and the environment in general of the affected area to its former state.”

70. According to respondent nos. 4 to 8, two reports of the NEERI of the same date were at variance with each other. In one report, the cost of remediation is mentioned as Rs.3 crores whereas in other report presented before the court, the amount was 37.385 crores.

71. Mr. Bhushan, learned senior counsel has submitted in his written submission that according to the original report, it was reported by the RSPCB that most of the wells within 1.5 km radius of the chemical plants of the respondents were contaminated whereas according to the modified report those wells were located within 6.5 km radius.

72. Mr. Bhushan has also submitted that the sludge had been stored under the supervision of the RSPCB whereas according to the modified report the industry had scattered the sludge in an unmindful clandestine manner causing gross pollution to avoid penal liability.

73. Reference has been made to the opinion of some experts whose opinions were obtained at the behest of respondent nos. 4 to 8. Their reports are contrary to the earlier reports given by the other experts.

74. In the written submissions it is mentioned that M/s Hindustan Zinc Limited was responsible for discharging noxious and polluting effluents.

75. According to the applicant-industry, the RSPCB has not taken a consistent stand.

76. In the supplementary submissions filed by Mr. K.B. Rohatagi, the learned counsel appearing on behalf of R.S.P.C.B., it is mentioned that in Interlocutory Application Nos. 36 and 44 the applicant-industry has resurrected the same grounds which have previously been settled by this court in Indian Council for Enviro-Legal Action and others v. Union of India and Others [1996] INSC 244; (1996) 3 SCC 212.

77. Mr. Rohatagi also submitted in the supplementary submissions that the question of liability and the amounts payable by the applicants based on the NEERI report has been decided by the judgment in the writ petition. The review petition against the said judgment was also dismissed by this court. On 4.11.1997 the applicants had even given an undertaking that they would not dispute any fresh estimate for remedial measures as prepared by the NEERI. The question of fraud and tampering of the NEERI report of 1994 has been dealt with by this court while dismissing the contempt petition filed by the applicants against the R.S.P.C.B. Even the Curative Petition filed by the applicants was also dismissed by this court on 18.7.2002.

78. In the supplementary submissions it is also mentioned that through Interlocutory Application Nos. 36 and 44 the applicants are merely trying to evade paying the amounts to be paid as remedial measures by reopening issues already settled by this court. In the submissions Mr. Rohatagi has drawn our attention to para 66 of the said judgment regarding the applicant’s liability, which reads as under:

“66. Once the law in Oleum Gas Leak case is held to be the law applicable, it follows, in the light of our findings recorded hereinbefore, that Respondents 4 to 8 are absolutely liable to compensate for the harm caused by them to the 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 the sludge and other pollutants lying the affected area (by affected area, we mean the area of about 350 has indicated in the sketch at p. 178 of NEERI report) and also to defray the cost of the remedial measures required to restore the soil and the underground water resources.”

79. It is also submitted in the written submissions that the Central Government was directed to determine the amounts for remedial measures for the affected area of 350 hectares, as mentioned in the NEERI report, after allowing the applicants to make a representation. This court in para 70 of the said judgment observed as under:

“Chapters VI and VII in the NEERI Report (submitted in 1994) shall be deemed to be the show cause notice issued by the Central Government proposing the determination of the said amount. Within six weeks from this day, Respondents 4 to 8 shall submit their explanation, along with such material as they think appropriate in support of their case, to the Secretary, Ministry of Environment and Forests, Government of India (MOEF). The Secretary shall thereupon determine the amount in consultation with the experts of his Ministry within six weeks of the submission of the explanation by the said respondents. The orders passed by the Secretary (MOEF) shall be communicated to Respondents 4 to 8 – and all concerned – and shall also be placed before this Court”

80. This court in the said judgment also directed that the factories, plant, machinery and all other immovable assets of Respondents 4 to 8 are attached herewith. The court also observed that the amount so determined and recovered shall  79 be utilized by the MOEF for carrying out all necessary remedial measures to restore the soil, water resources and the environment in general of the affected area in the former state.

81. It is also submitted in the supplementary submissions of RSPCB that this court in para 70 of the said judgment also observed that the applicants have inflicted untold misery upon the poor, unsuspecting villagers, despoiling their land, their water resources and their entire environment, all in pursuance of their private profit. They have forfeited all claims for any consideration by this court.

82. In the supplementary submissions filed by Mr. Rohatagi it is also mentioned that the court even settled the issue of the alleged hostility of the RSPCB towards the applicants and felt no reason to suspect the veracity of the reports submitted by the RSPCB. This court in para 39 of the said judgment observed as under:

“If the respondents establish and operate their plants contrary to law, flouting all safety norms provided by law, the RSPCB was bound to act. On that account, it cannot be said to be acting out of animus or adopting a hostile attitude. Repeated and persistent violations call for repeated orders. That is no proof of hostility. Moreover, the reports of RSPCB officials are fully corroborated and affirmed by the reports of the Central team of experts and of NEERI. We are also not prepared to agree with Shri Bhat that since the report of NEERI was prepared at the instance of RSPCB, it is suspect.”

83. It is further submitted in the supplementary submissions that in para 55 of the said judgment this court specifically held that Hindustan Zinc Limited is not responsible for the pollution at Bichhri village. The court has observed as under:

“No report among the several reports placed before us in these proceedings says that Hindustan Zinc Limited is responsible for the pollution at Bicchhri village. Shri Bhat brought to our notice certain reports stating that the discharges from Hindustan Zinc Limited were causing pollution in certain villages but they are all downstream, i.e., to the north of Bichhri village and we are not concerned with the pollution in those villages in these proceedings. The bringing in of Hindustan Zinc Limited in these proceedings is, therefore, not relevant. If necessary, the pollution, if any, caused by Hindustan Zinc Limited can be the subject- matter of a separate proceeding.”

84. It is also further mentioned in the written submission of RSPCB that the issue of quantification of amounts to be paid by the industry has been settled by this court in its order dated 4.11.1997. The relevant portion of the order reads as under:

“… … …remedial measures taken on the basis of the NEERI report shall be treated as final.

We accept the proposal submitted by the Government of India for the purpose of taking remedial measures by appointing National Productivity Council as the Project Management Consultant. In our opinion the Ministry of Environment and Forests, Government of India has rightly made a demand for Rs.37.385 crores.”

85. It is also mentioned in the supplementary submissions that this court on 3.8.2005 directed that the sale should take place expeditiously to realize the amount for remedial measures. The assessment of areas affected by the pollution and settled by the District Collector at 642 hectares was also accepted by this court vide its order dated 3.8.2005.

86. It may be pertinent to mention that this court had accepted the affidavit of Mr. S.N. Kaul, Acting Director, NEERI regarding tampering with the report and this court by its order dated 1.10.1999 observed as under:

“It appears that two scientists appointed by the petitioner had inspected a report in the office of NEERI and then observed that there has been a fabrication carried out by the Pollution Control Board. From what has been stated hereinabove, the charge of fabrication is clearly unfounded. It is possible that these two scientists may have seen the draft report which would be with the NEERI but the original report when prepared would be one which was, ultimately, submitted to the sponsoring agency, namely the Rajasthan Pollution Control Board and it is only a copy of the same which could have been retained by the NEERI. Be that as it may, it is clear that what has been filed in this Court as being the final report of NEERI was the copy of the final report which was received by it. There is no basis for contending that any of the respondents have been guilty of fabrication. The whole application to our mind is without any merit.”

87. It is further submitted in his supplementary submissions that this court in para 54 of its order dated 13.2.1996 had upheld the integrity of the reports submitted by the NEERI. Para 54 of order dated 13.2.1996 reads as under:

“Moreover, the reports of RSPCB officials are fully corroborated and affirmed by the reports of the central team of experts and of the NEERI. We are also not prepared to agree with Shri Bhat that since the report of the NEERI was prepared at the instance of RSPCB, it is suspect. This criticism is not only unfair but is also uncharitable to the officials of NEERI who have no reason to be inimical to the respondents. If, however, the actions of the respondents invite the concern of the experts and if they depict the correct situation in their reports, they cannot be accused of any bias.

The persons who made the said reports are all experts in their field and under no obligation either to the RSPCB or for that matter to any other person or industry. It is in view of their independence and competence that their reports were relied upon and made the basis of passing orders by this court from time to time.”

88. In the supplementary submissions it is also mentioned that the report of 25th January, 2005 is a joint report by the NEERI, R.S.P.C.B. and officers of Department of Environment, Government of Rajasthan. The team collected soil samples from 7 sites, one sample from lake Udaisagar and 17 well water samples from the impacted and nearby areas. The report concluded as under:

“All the well water samples in the impacted zone have also shown colour from pale yellow to dark brown. As the industries located within the HACL plant premises were the only source of H-acid, HACL alone is responsible for causing pollution by H-acid and its derivatives in the impacted area. Considering the remediation goal of Omg/l for H- acid and its derivatives are potential carcinogenic, all well waters, contaminated with H-acid and its derivatives, require remediation.

Sudden emergence of H-acid in wells W7(Aug.99) and W9 (Aug. 99) clearly indicate that the plume of H-acid contaminated groundwater is moving away from the source of origin and spreading in the direction of groundwater flow. This is further confirmed from another fairly conservative parameter TDS whose emergence has been documented in all the wells (W7, W9, W1, W13 and W16) from time to time. Similar trend could be observed with respect to sulphate and chloride in well water samples collected from these five wells. Comparison of the results obtained in the present study with that of earlier studies establish that the ground water plume contaminated by H-acid and its derivatives is still moving in the direction of ground water flow thereby contamination area being larger than that earlier. This was predicted in the joint report prepared by SENES and the NEERI (SENES and the NEERI, 2002).”

89. This report was submitted to the court along with the affidavit dated 8.3.2007 filed by the Union of India.

90. In the supplementary submissions it is also submitted that due to some alleged variations, the Director of ITRC (Indian Toxicological Research Centre) was asked to make a rapid assessment on 6.5.2006. In response, the Director of ITRC stated that there may be a variation due to a lapse of time between the 2002 and 2005 reports. Based on this, MOEF asked the National Chemical Laboratory, Pune to undertake a study, the results of which (placed before the Court in affidavits of 22.1.07 and 8.3.2007) showed that no aspersions can be cast on the NEERI report of 1994. Further, it would be incorrect to suggest that the remedial measures as imposed on the applicants were limited to neutralizing the presence of H-acid in the soil alone, in fact it is clear from the judgment of 1996 and subsequent reports that what has to be done is:

a) removal of sludge which has also percolated down in the soil; and b) restoration of the area including perforce, making it possible for farmers and others to return to the natural uses of the affected land.

91. It is further submitted in the supplementary submissions of RSPCB that the Interlocutory Applications Nos. 36 and 44 are just another example of obstructive litigation undertaken to avoid responsibility. Since 1996 the applicants have filed various applications and petitions in this court to delay the payment of damages. It is also submitted that any delay caused in the payment of damages for remedial measures has, therefore, been on the part of the applicants. It would be wrong to suggest that the Union is responsible for the delay in sale of assets of the industry. The applicants have violated orders of this court in relation to disclosure of assets dated 18.8.04, 9.12.04 and 17.3.05, because of which it was impossible for the Union of India to sell the applicant’s attached properties.

92. Mr. Rohatagi submitted that the applicants relied upon a series of reports by private consultants, filed subsequent to the decision, which are as follows:
a) IIT Bombay Report of May 2005 suggesting that the samples collected on 5th April, 2005 show that there is no H-acid or other pollutants.
b) A report by Dr. BR Bamniya dated 22.4.04 stating that no soil pollutants or water pollutants found and “…the presence of H-acid has not been recorded in any water sample of well and in tube well.”
c) Report of Expert Group on Water Pollution of March 1981 showing that pollution caused by M/s. Hindustan Zinc Ltd. Further no action has been taken against M/s. Hindustan Zinc Limited on the basis of that report.
d) Report of M/s. Shah Doctor Associates of April, 1994 critical of the analysis in the NEERI report.
e) Report of SP Mahajan of IIT Bombay dated 19.8.1999 stating that no H-Acid found in the well waters.

93. It is further submitted in the supplementary submissions that the NEERI report of 2005 also dealt with three private reports which were rejected on the basis that they were superficial.

94. Mr. Rohatagi further submitted that the liability of the applicants-industries has been fixed far back in 1996. Merely because there may be a diminution in respect of some pollutants due to the passage of time does not, in any way, take away from the responsibility on the applicant to undertake remedial measures for the past and continuing damage to the people and the environment caused by the applicants-industries. The individual claims of farmers may be dealt within individual cases, which would not obviate the need for restoration of the area. This flows from a joint reading of directions of the court in para 71 of the judgment reported in Indian Council for Enviro-Legal Action (supra).

95. According to the RSPCB Interlocutory Application Nos. 36 and 44 are blatant examples of vexatious litigation indulged in to avoid the responsibility fixed by this court. These applications should be dismissed with heavy costs on the applicants.

96. Mr. M.C. Mehta, Advocate has filed written submissions on behalf of Indian Council for Enviro Legal Action. It is reiterated in the submissions that these applications are blatant disregard towards complying with the directions of this court. They have made mockery with the environmental justice delivery system by filing these applications. They have shown no contrition for causing irreparable damage to the life, health and property of the people affected by their commercial activities. The applicants are trying to delay the payment of Rs.37.385 crores for carrying out remedial measures. This court in para 70 of the judgment reported in Indian Council for Enviro-Legal Action (supra) observed as under:

“On account of (the respondents) continuous, persistent and insolent violations of the law….and their non-implementation of the orders of this….

(the respondents) have earned the dubious distinction of being characterized as “rogue industries”. They have inflicted untold misery upon the poor, unsuspecting villagers, despoiling their land, their water sources and their entire environment – all in pursuit of private profit.”

97. Mr. Mehta also submitted in his submissions that the applicants (respondent Nos. 4 to 8) are related to the discharge of untreated chemical effluents in violation of the laws of the land in Bichhri and surrounding villages and caused grave harm to the environment and people in Bichhri and surrounding villages.

98. In the written submissions Mr. Mehta also submitted that the reports procured by the respondent companies by hiring consultants do not hold any weight due to lack of substantial scientific investigations. They cannot in any way question the credibility of nine scientific reports, submitted following extensive field visits, survey and research by  90 scientists from reputed scientific institutions such as the CPCB, NEERI, SENES, RSPCB and the Centre for Science and Environment and other reports, respectively submitted by the district collector and the Court Commissioner appointed by this court.

99. Mr. Mehta also mentioned in his written submissions that the veracity of the contents of the NEERI report has been affirmed in at least four subsequent reports from reputed scientific organizations, MOEF, State of Rajasthan as well as the district collector. 100. Mr. Mehta has also submitted that assuming, though not conceding, that there is currently no pollution in Bichhri village, this cannot absolve the applicants-industries from the obligation to pay monies necessary for eco-restoration and damages caused to the life and health of the people as well as their property in the past. The polluters/respondents recklessly destroyed the environment, surface and underground water and the soil and killed fruit trees, animals and vegetation apart from causing suffering and irreparable damages to the lands, property, life and health of the people in flagrant violation of environmental laws and directions given by various authorities including the orders of this court. The civil and criminal liability upon the respondents for the environmental crimes, irreparable damages caused to the environment, flora and fauna, life, health and property of innocent people living in Bichhri and surrounding villages cannot be condoned at any cost. 101. Mr. Mehta submitted that even if it was possible to accept that all H-acid traces have been removed, the presence of other contaminants in the affected area (including highly toxic wastes emanating from the Sulphuric Acid Plant and other plants) would necessitate remediation. The amount can be deposited in a Fund and utilized for remediation, providing potable water, tree plantation, and such other measures which would be helpful to the environment of the area apart from paying damages to the people. 102. Mr. Mehta has further submitted that this court may impose upon the errant industries as exemplary punitive damages apart from the amount required for eco-restoration by way of remediation of the land, water and the environment. This may be considered in the light of the continuing public nuisance and suffering due to pollution, severely degraded environment, loss to the property, irreparable damage to the ecology and precious natural resources – land, air, aquifers, surface water, flora and fauna – for over twenty years since the original petition was filed. The implications of failing to remediate the affected land, water and environment over such an extensive period of time are far more severe than had the applicants-industries immediately complied with the orders of this court. 103. Mr. Mehta also placed reliance on a judgment of this court in the case of M.C. Mehta v. Kamal Nath and others (2000) 6 SCC 213, in which the court observed as under:

104. Mr. Mehta submitted that having regard to the respondent’s conduct in the present case, it would be reasonable to impose an additional pecuniary penalty on them. Reliance is placed on Minister for the environment and Heritage v. Greentree (No.3) [2004] FCA 1317, wherein the Federal Court imposed a pecuniary penalty against the respondents totaling $450,000 for having illegally cleared declared a Ramsar wetland. A strong factor contributing to the imposition of a substantial penalty was because the actions of the respondent were deliberate, sustained and serious, they took place over a substantial period of time and the respondents did not exhibit any contrition. 105. Mr. Mehta also submitted that the present case would warrant a severe penalty because the respondents carried out their activities without even possessing any appropriate licenses. Respondents must be required to pay exemplary damages so as to act as a deterrent for others, as also to remedy the harm they have caused to the environment and the villagers of Bichhri. 106. Mr. Mehta has also placed reliance on the famous “Love Canal Case” United States v. Hooker Chems and Plastics Corp., 722 F. Supp 960 (W.D.N.Y. 1989). This case was initiated after it was discovered that a school, homes and rental units were built over approximately 21,000 tonnes of chemical waste at Niagara Falls, New York. The Federal Court of New York allowed a claim against the defendants based on public nuisance. This case was ultimately settled with the defendant agreeing to pay $129 million to the Environment Protection Authority. This case led to the development of the Comprehensive Response Compensation and Environmental Liability Act, 1980, more commonly referred to as the “Superfund”, into which polluters contribute monies to enable clean-up of toxic sites. 107. In the written submissions filed by Mr. Mehta he has also mentioned about principle of accountability and it is the duty and obligation of the court to protect the fundamental rights of the citizens under Article 32 of the Indian constitution. Pollution and public nuisance resulting from mis-regulation infringes on the fundamental rights, including the right to life under Article 21 of the Indian constitution. Mr. Mehta also submitted that applicants are liable for causing continuous suffering to the people in Bichhri and surrounding villages.

108. Mr. Mehta also submitted in his written submissions that in several cases of environmental pollution the courts have ordered the payment of damages by the errant industries/individuals responsible for causing pollution in violation of environmental related issues and the money recovered be spent for remediation or eco-restoration and damages be paid to the victims or spent for their benefit. It is the duty of the government to ensure proper administration of this fund in a transparent and accountable manner. The establishment of such a fund would ensure that polluters take responsibility for their actions and that monies derived from penalties, damages and settlement are directly invested towards remediating the environmental damage that has occurred. 109. Mr. Mehta further mentioned in his submissions that creation of such a fund would be consistent with the precautionary principle which has been evolved and accepted by this court. He has also mentioned that similar funds have been set-up in United States of America, Canada, Australia, Malaysia and other countries. 110. Mr. Mehta also made a reference regarding Public Liability Insurance Act, 1991 which makes it mandatory for industries handling hazardous material to be insured against environmental hazards. However, this legislation only provides relief to persons affected by accidents whilst handling hazardous materials, who are most likely to be workers. Members of the local community would not obtain relief under this legislation, though they are also adversely affected by hazardous industries. This is most pertinently exemplified in the present case. 111. In his written submissions Mr. Mehta also submitted that the applicants clearly show defiance of the environmental laws and the orders of this court. Mr. Mehta prayed for dismissal of Interlocutory Application Nos. 36 of 2004 and 44 of 2007 with heavy costs and direct the respondents to deposit Rs.37.385 crores with the MOEF as per the judgment of this court. 112. This case raises many substantial questions of law. We would briefly deal with some of them.

113. We would also like to discuss the concept of Finality of the Judgment passed by the Apex Court.

114. The maxim `interest Republicae ut sit finis litium’ says that it is for the public good that there be an end of litigation after a long hierarchy of appeals. At some stage, it is necessary to put a quietus. It is rare that in an adversarial system, despite the judges of the highest court doing their best, one or more parties may remain unsatisfied with the most correct decision. Opening door for a further appeal could be opening a flood gate which will cause more wrongs in the society at large at the cost of rights. 115. It should be presumed that every proceeding has gone through infiltration several times before the decision of the Apex Court. In the instant case, even after final judgment of this court, the review petition was also dismissed. Thereafter, even the curative petition has also been dismissed in this case. The controversy between the parties must come to an end at some stage and the judgment of this court must be permitted to acquire finality. It would hardly be proper to permit the parties to file application after application endlessly. In a country governed by the rule of law, finality of the judgment is absolutely imperative and great sanctity is attached to the finality of the judgment. Permitting the parties to reopen the concluded judgments of this court by  99 filing repeated interlocutory applications is clearly an abuse of the process of law and would have far reaching adverse impact on the administration of justice.

116. In Manganese Ore (India) Ltd. v. The Regional Assistant Commissioner of Sales Tax, Jabalpur (1976) 4 SCC 124 this court held that the doctrine of stare decisis is a very valuable principle of precedent which cannot be departed from unless there are extraordinary or special reasons to do so.

117. In Green View Tea & Industries v. Collector, Golaghat and Another (2002) 1 SCC 109 this court reiterated the view that finality of the order of the apex court of the country should not lightly be unsettled.

118. A three-Judge Bench of this court in M/s Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi (1980) 2 SCC 167 held that a party is not entitled to seek a review of this court’s judgment merely for the purpose of rehearing and for a fresh decision of the case. Departure from the normal principle that the court’s judgment is final would be justified only when compelling our substantial circumstances make it necessary to do so. Such circumstances may be that a material statutory provision was not drawn to the court’s attention at the original hearing or a manifest wrong has been done.

119. In Union of India & Another v. Raghubir Singh (Dead) by L.Rs. [1989] INSC 192; (1989) 2 SCC 754, this Court held that the plea for reconsideration is not to be entertained merely because the petitioner chooses to reagitate the points concluded by the earlier decision in Sub-committee on Judicial Accountability.

120. In Mohd. Aslam v. Union of India & Others (1996) 2 SCC 749, the Court considered the earlier decisions and held that the writ petition under article 32 of the Constitution assailing the correctness of a decision of the Supreme Court on merits or claiming reconsideration is not maintainable. 121. In Khoday Distilleries Ltd. and Another v. Registrar General, Supreme Court of India [1995] INSC 792; (1996) 3 SCC 114, the Court held the reconsideration of the final decision of the Supreme Court after review petition is dismissed by way of writ petition under article 32 of the Constitution cannot be sustained.

122. In Gurbachan Singh & Another v. Union of India & Another (1996) 3 SCC 117, the Court held that the judgment order of this court passed under Article 136 is not amenable to judicial review under Article 32 of the Constitution. 123. Similar view was taken in Babu Singh Bains and others v. Union of India and Others (1996) 6 SCC 565, a three-Judge bench of this Court held that a writ petition under Article 32 of the Constitution against the order under Article 136 of the Constitution is not maintainable.

124. Another three-Judge bench of this Court in P. Ashokan v. Union of India & Another (1998) 3 SCC 56, relying upon the earlier cases held that the challenge to the correctness of a decision on merits after it has become final cannot be questioned by invoking Article 32 of the Constitution. In the instant case the petitioner wants to reopen the case by filing the interlocutory application.

125. In Ajit Kumar Barat v. Secretary, Indian Tea Association & Others (2001) 5 SCC 42, the Court placed reliance on the judgment of a nine-judge Bench in Naresh Shridhar Mirajkar v. State of Maharashtra and another [1966] INSC 64; AIR 1967 SC 1 and the Court observed as under:

“It is difficult to see how this decision can be pressed into service by Mr. Setalvad in support of the argument that a judicial order passed by this Court was held to be subject to the writ jurisdiction of this Court itself…. In view of this decision in Mirajkar case it must be taken as concluded that judicial proceedings in this Court are not subject to the writ jurisdiction thereof.”

126. The Court in the said case observed that having regards to the facts and circumstances of the case, this is not a fit case to be entertained to exercise jurisdiction under Article 32 of the Constitution.

127. In Mr. “X” v. Hospital “Z” (2000)9 SCC 439, this Court held thus:

“Writ petition under Article 32 of the Constitution against the judgment already passed by this Court cannot be entertained. Learned counsel for the petitioner stated that prayer (a) which seeks overruling or setting aside of the judgment already passed in Mr X v. Hospital Z may be deleted. This prayer shall accordingly be deleted. So also, the other prayers which indirectly concern the correctness of the judgment already passed shall stand deleted. Learned counsel for the petitioner stated that the petition may not be treated as a petition under Article 32 of the Constitution but may be treated as an application for clarification/directions in the case already decided by this Court, viz., Mr X v. Hospital Z (CA No. 4641 of 1998).”

128. In Triveniben v. State of Gujarat (1989)1 SCC 678 speaking for himself and other three learned Judges of the Constitution Bench through Oza, J., reiterated the same principle. The court observed: (SCC p. 697, para 22) “…It is well settled now that a judgment of court can never be challenged under Articles 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21 as has been laid down by this Court in Naresh Shridhar Mirajkar (supra) and also in A.R. Antulay v. R.S. Nayak, the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court. But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper….”

129. In Rupa Ashok Hurra (supra), this Court observed thus:

24. … when reconsideration of a judgment of this Court is sought the finality attached both to the law declared as well as to the decision made in the case, is normally brought under challenge. It is, therefore, relevant to note that so much was the value attached to the precedent of the highest court that in The London Street Tramways Co. Ltd. v. London County Council [1898] UKHL 1; (1898 AC 375) the House of Lords laid down that its decision upon a question of law was conclusive and would bind the House in subsequent cases and that an erroneous decision could be set right only by an Act of Parliament.

26. …This Court will not sit as a court of appeal from its own decisions, nor will it entertain applications to review on the ground only that one of the parties in the case conceives himself to be aggrieved by the decision. It would in our opinion be intolerable and most prejudicial to the public interest if cases once decided by the Court could be reopened and reheard:

“There is a salutary maxim which ought to be observed by all courts of last resort — interest reipublicae ut sit finis litium. (It concerns the State that there be an end of lawsuits. It is in the interest of the State that there should be an end of lawsuits.) Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this.”

32. “…When this Court decides questions of law, its decisions are, under Article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions.”

33. In Maganlal Chhaganlal [1974] INSC 91; (1974) 2 SCC 402 case a Bench of seven learned Judges of this Court considered, inter alia, the question: whether a judgment of the Supreme Court in Northern India Caterers case [1967] INSC 88; (1967) 3 SCR 399 was required to be overruled. Khanna, J. observed: (SCC p. 425, para 22) “At the same time, it has to be borne in mind that certainty and continuity are essential ingredients of rule of law. Certainty in law would be considerably eroded and suffer a serious setback if the highest court of the land readily overrules the view expressed by it in earlier cases, even though that view has held the field for a number of years. In quite a number of cases which come up before this Court, two views are possible, and simply because the Court considers that the view not taken by the Court in the earlier case was a better view of the matter would not justify the overruling of the view. The law laid down by this Court is binding upon all courts in the country under Article 141 of the Constitution, and numerous cases all over the country are decided in accordance with the view taken by this Court. Many people arrange their affairs and large number of transactions also take place on the faith of the correctness of the view taken by this Court. It would create uncertainty, instability and confusion if the law propounded by this Court on the basis of which numerous cases have been decided and many transactions have taken place is held to be not the correct law.”

42. The concern of this Court for rendering justice in a cause is not less important than the principle of finality of its judgment. “We are faced with competing principles — ensuring certainty and finality of a judgment of the Court of last resort and dispensing justice on reconsideration of a judgment on the ground that it is vitiated being in violation of the principles of natural justice or giving scope for apprehension of bias due to a Judge who participated in the decision-making process not disclosing his links with a party to the case, or on account of abuse of the process of the court. Such a judgment, far from ensuring finality, will always remain under the cloud of uncertainty. Almighty alone is the dispenser of absolute justice — a concept which is not disputed but by a few. We are of the view that though Judges of the highest court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such case it would not only be proper but also obligatory both legally and morally to rectify the error. After giving our anxious consideration to the question, we are persuaded to hold that the duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in the public interest that a final judgment of the final court in the country should not be open to challenge, yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and would cause perpetuation of irremediable injustice.”

130. A four-judge bench of this court in Sumer v. State of U.P. (2005) 7 SCC 220 observed as under: “In Rupa Ashok Hurra (supra) while providing for the remedy of curative petition, but at the same time to prevent abuse of such remedy and filing in that garb a second review petition as a matter of course, the Constitution Bench said that except when very strong reasons exist, the court should not entertain an application seeking reconsideration of an order of this Court which has become final on dismissal of review petition. In this view, strict conditions including filing of certificate by a Senior Advocate were provided in Rupa Ashok Hurra (supra). Despite it, the apprehension of the Constitution Bench that the remedy provided may not open the flood gates for filing a second review petition has come true as is evident from filing of large number of curative petitions. It was expected that the curative petitions will be filed in exceptional and in rarest of rare case but, in practice, it has just been opposite. This Court, observing that neither it is advisable nor possible to enumerate all the grounds on which curative petition may be entertained, said that nevertheless the petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice, and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner. To restrict filing of the curative petitions only in genuine cases, Rupa Ashok Hurra (supra) provided that the curative petition shall contain a certification by a Senior Advocate with regard to the fulfilment of all the requirements provided in the judgment. Unfortunately, in most of the cases, the certification is casual without fulfilling the requirements of the judgment.” 131. In Sita Ram Bhandar Society, New Delhi v. Lieutenant Governor, Government of NCT, Delhi & Others (2009)10 SCC 501, this Court held thus:

“41. We must also observe that the petitioner has been able to frustrate the acquisition and development of the land right from 1980 onwards by taking recourse to one litigation after the other. The record reveals that all the suits/writ petitions, etc. that had been filed had failed. Undoubtedly, every citizen has a right to utilise all legal means which are open to him in a bid to vindicate and protect his rights, but if the court comes to the conclusion that the pleas raised are frivolous and meant to frustrate and delay an acquisition which is in public interest, deterrent action is called for. This is precisely the situation in the present matter.

42. The appeals are, accordingly, dismissed with costs which are determined at rupees two lakhs. The respondents, shall, without further loss of time proceed against the appellant.”

132. This court in a recent judgment in M. Nagabhushana v. State of Karnataka and others (2011) 3 SCC 408 observed that principle of finality is passed on high principle of public policy. The court in para 13 of the said judgment observed as under:

“That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the color and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties.”

133. In order to discourage a litigation which reopens the final judgment of this court, while dismissing the petition imposed costs of rupees 10 lakhs.
134. We find full corroboration of this principle from the cases of other countries. We deem it appropriate to mention some of these relevant cases in the succeeding paragraphs.

ENGLAND
135. The England cases have consistently taken the view that the judgments of final court must be considered final and conclusive. There must be certainty in the administration. Uncertainty can lead to injustice. Unless there are very exceptional or compelling reasons the judgment of apex courts should not be reopened.

136. In Regina v. Gough, [1993] UKHL 1; [1993] 1 A.C. 646, with regards to setting aside judgments due to judicial bias, the House of Lords held that there “is only one established special category and that exists where the tribunal has a pecuniary or proprietary interest in the subject matter of the proceedings as in Dimes v. Proprietors of Grand Junction Canal , (1852) 3 H.L. Cases 759. The courts should hesitate long before creating any other special category since this will immediately create uncertainty as to what are the parameters of that category and what is the test to be applied in the case of that category.” Lord Goff of Chievely stated that “I wish to draw attention to the fact that there are certain cases in which it has been considered that the circumstances are such that they must inevitably shake public confidence in the integrity of the administration of justice if the decision is to be allowed to stand. Such cases attract the full force of Lord Hewart C.J.’s requirement that justice must not only be done but must manifestly be seen to be done. These cases arise where a person sitting in a judicial capacity has a pecuniary interest in the outcome of the proceedings. In such a case, as Blackburn J. said in Reg. v. Rand (1866) L.R. 1 Q.B. 230, 232: “any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting as a judge in the matter.” The principle is expressed in the maxim that nobody may be judge in his own cause (nemo judex in sua causa)… In such a case, therefore, not only is it irrelevant that there was in fact no bias on the part of the tribunal, but there is no question of investigating, from an objective point of view, whether there was any real likelihood of bias, or any reasonable suspicion of bias, on the facts of the particular case. The nature of the interest is such that public confidence in the administration of justice requires that the decision should not stand” (p. 661).

137. In R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) (1999) 2 W.L.R. 272, the House of Lords set aside one of its earlier orders. In this case, the majority at the House of Lords had earlier ruled whether Augusto Pinochet, the former dictator of Chile, could be extradited to Spain in order to stand trial for alleged crimes against humanity and was not entitled to sovereign immunity. Amnesty International had been an intervener in this case in opposition to Pinochet. Lord Hoffman, one of the majority judges, was a director of Amnesty International Charitable Trust, an organization controlled by Amnesty International, and Lady Hoffman had been working at AI’s international secretariat since 1977. The respondent was not aware of Lord Hoffman’s relationship to AI during the initial trial. In this case, the House of Lords cited with approval the respondents’ concession acknowledging the House of Lords’ jurisdiction to review its decisions – “In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered.”

138. According to the English law, the judgment of the Apex Court can be reviewed in exceptional circumstances particularly when the judge associated with any of the organizations to be a good ground for reviewing the judgment.

139. In Pinochet test in Regina (Edwards) v Environment Agency and others [2010] UKSC 57, the Supreme Court of the United Kingdom overruled an earlier order of costs made by the erstwhile apex court, the House of Lords, on the grounds that the House of Lords had made a substantive error in the original adjudication. However, this appeal was lodged under Rule 53 of the The (U.K.) Supreme Court Rules, 2009, 2009 No. 1603 (L. 17). Rule 53 provides as follows:

53. (1) A party who is dissatisfied with the assessment of costs made at an oral hearing may apply for that decision to be reviewed by a single Justice and any application under this rule must be made in the appropriate form and be filed within 14 days of the decision. (2) The single Justice may (without an oral hearing) affirm the decision made on the assessment or may, where it appears appropriate, refer the matter to a panel of Justices to be decided with or without an oral hearing. (3) An application may be made under this rule only on a question of principle and not in respect of the amount allowed on any item in the claim for costs.

140. In this case, Lord Hope, citing the Pinochet case stated that: The Supreme Court is a creature of statute. But it has inherited all the powers that were vested in the House of Lords as the ultimate court of appeal. So it has the same powers as the House had to correct any injustice caused by an earlier order of the House or this Court… In this case it seems that, through no fault of the appellant, an injustice may have been caused by the failure of the House to address itself to the correct test in order to comply with the requirements of [certain EU] directives [at para. 35].

CANADA 141. The Canadian Supreme Court is of the same view that judicial bias would be a ground for reviewing the judgment. In Wewaykum Indian Band v. Canada [2003] 2 SCR 259 the court relied on Taylor Ventures Ltd. (Trustee of) v. Taylor 2005 BCCA 350 where principle of judicial bias has been summarized.

142. The principles stated in Roberts regarding judicial bias were neatly summarized in Taylor Ventures Ltd. (Trustee of) (supra), where Donald J.A. stated – (i) a judge’s impartiality is presumed;
(ii) a party arguing for disqualification must establish that the circumstances justify a finding that the judge must be disqualified;
(iii) the criterion of disqualification is the reasonable apprehension of bias;
(iv) the question is what would an informed, reasonable and right-minded person, viewing the matter realistically and practically, and having thought the matter through, conclude;
(iv) the test for disqualification is not satisfied unless it is proved that the informed, reasonable and right-minded person would think that it is more likely than not that the judge, whether consciously or unconsciously, would not decide fairly;
(v) the test requires demonstration of serious grounds on which to base the apprehension;
(vi) each case must be examined contextually and the inquiry is fact-specific (at para 7).

143. Cases from Australia also support the proposition that a final judgment cannot ordinarily be reopened, and that such steps can be taken only in exceptional circumstances.

144. In State Rail Authority of New South Wales v. Codelfa Constructions Propriety Limited (1982) 150 CLR 29, the High Court of Australia observed:

“… it is a power to be exercised with great caution. There may be little difficulty in a case where the orders have not been perfected and some mistake or misprision is disclosed. But in other cases it will be a case of weighing what would otherwise be irremediable injustice against the public interest in maintaining the finality of litigation. The circumstances that will justify a rehearing must be quite exceptional. …”

145. In Bailey v. Marinoff [1971] HCA 49; (1971) 125 CLR 529, Judge Gibbs of the High Court of Australia observed in a dissenting opinion:

“It is a well-settled rule that once an order of a court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made the court has no jurisdiction to alter it. .. ….The rule tests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to rehear a matter decided after a full hearing. However, the  118 rule is not inflexible and there are a number of exceptions to it in addition to those that depend on statutory provisions such as the slip rule found in most rules of court. Indeed, as the way in which I have already stated the rule implies, the court has the power to vary an order so as to carry out its own meaning or to make plain language which is doubtful, and that power does not depend on rules of court, but is inherent in the court….”
And, further:
“The authorities to which I have referred leave no doubt that a superior court has an inherent power to vary its own orders in certain cases. The limits of the power remain undefined, although the remarks of Lord Evershed already cited suggest that it is a power that a court may exercise “if, in its view, the purposes of justice require that it should do so”.

146. In DJL v. Central Authority (2000) 170 ALR 659, the High Court of Australia observed:

“…It is now recognized both in Australia and England that orders made by ultimate appellate courts may be reopened by such courts in exceptional circumstances to repair accidents and oversights which would otherwise occasion a serious injustice. In my view, this can be done although the order in question has been perfected. The reopening may be ordered after due account is taken of the reasons that support the principle of finality of litigation. The party seeking reopening bears a heavy burden to demonstrate that the exceptional course is required “without fault on his part. …”

147. Lastly, in Lexcray Pty. Ltd. v. Northern Territory of Australia 2003 NTCA 11, the Court appeals of the Supreme Court of the Northern Territory expressly stated:

“…As a final court of appeal the High Court of Australia has inherent jurisdiction to vacate its orders in cases where there would otherwise be an irremediable injustice….”

148. American courts also follows a similar pattern. In United States of America v. Ohio Power Company 353 US 98 (1957), the U.S. Supreme Court vacated its earlier order denying a timely petition for rehearing, on the ground that “the interest in finality of litigation must yield where interests of justice would make unfair, strict application of Supreme Court’s Rules.

149. In Raymond G. Cahill v. The New York, New Haven and Hartford Railroad Company [1956] USSC 56; 351 US 183, the Supreme Court observed:

“…There are strong arguments for allowing a second petition for rehearing where a rigid application of this rule would cause manifest injustice.”

FIJI 150. The Supreme Court of Fiji Islands incorporating Australian and British case law summarized the law applicable to review of its judgments. It has been held that the Supreme Court can review its judgments pronounced or orders made by it. The power of the appellate courts to re- open and review their orders is to be exercised with great caution.

151. The cases establish that the power of appellate courts to re-open and review their orders is to be exercised with great caution. The power, and the occasions for its exercise were considered in In Re Transferred Civil Servants (Ireland) Compensation (1929) AC 242, 248-52; and State Rail Authority NSW v Codelfa Construction Pty Ltd (1982) HCA 51 : [1982] HCA 51; (1982) 150 CLR 29, 38-9, 45-6, where earlier Privy Council cases are referred to. The principles were summarised  121 in Smith v NSW Bar Association (1992) 176 CLR 252, 265 where the High Court of Australia said:

“The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review … these considerations may tend against the re-opening of a case, but they are not matters which bear on the nature or the review … once the case is re-opened … the power to review a judgment … where the order has not been entered will not ordinarily be exercised to permit a general re- opening … But … once a matter has been re- opened, the nature and extent of the review must depend on the error or omission which has led to that step being taken.”

152. The principles were further considered in Autodesk Inc v Dyason (No 2) (1993) HCA 6 : [1993] HCA 6; (1993) 176 CLR 300, 303 where Mason CJ said:

“What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and this … cannot be attributed solely to the neglect of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases.”

153. The ratio of these judgments is that a court of final appeal has power in truly exceptional circumstances to recall its order even after they have been entered in order to avoid irremediable injustice.

154. Reviewing of various cases of different jurisdictions lead to irresistible conclusion that though the judgments of the apex court can also be reviewed or recalled but it must be done in extremely exceptional circumstances where there is gross violation of principles of natural justice. 155. In a case where the aggrieved party filing a review or curative petition was not a party to the lis but the judgment adversely affected his interest or he was party to the lis was not served with notice of the proceedings and the matter proceeded as if he had notice. This court in State of M.P. v. Sugar Singh & Others on 9th March, 2010 passed the following order in a curative petition :

“Though there were eight accused persons, only four accused were arrayed as party respondents in the said appeals namely, Sughar, Laxman, Onkar and Ramesh. Other accused, namely,Bhoja, Raghubir, Puran and Balbir were not impleaded as respondents in these Criminal Appeals and consequently notices were not issued to them. This Court, by judgment on 7th November, 2008 in the aforesaid Criminal Appeals, reversed the acquittal of the accused by the High Court and found them guilty of the offences punishable under Section 304 Part-II read with Section 149 of the I.P.C. and sentenced them to undergo imprisonment for a period of six years. The conviction of the accused for the offences punishable under Section 148 as also Section 326 read with the Section 149 of the I.P.C. and the sentence imposed by the Sessions Court in regard to the said offences was upheld by this Court.

We have heard learned counsel for the petitioners. The respondent State, though served with a notice through standing counsel, has not chosen to enter appearance. These Curative Petitions have been filed by accused No.2 (Raghubir) and by accused no.4 and 5 (Sughar Singh and Laxman) on the ground that acquittal of Bhoja, Raghubir, Puran and Balbir have been reversed without affording an opportunity of being heard. We see that there is serious violation of principles of natural justice as the acquittal of all the accused has been set aside even though only four of them were made respondents before this Court and the others were not heard. We are, therefore, constrained to recall the 3 judgment passed by this Court in Criminal Appeal Nos.1362- 1363 of 2004 on 7th November, 2008.

Consequently, the accused Sughar Singh, Laxman, Onkar and Ramesh, if they are in custody, are directed to be released forthwith.

In the result, these Curative Petitions are disposed of and the Criminal Appeal Nos.1362-363 of 2004 are restored to the file for being heard afresh with a direction that the other four accused (Bhoja, Raghubir, Puran and Balbir) be impleaded as respondents and all accused be served with fresh notices.”

156. In the instant case, the applicants had adequate opportunity and were heard by the court at length on number of occasions and only thereafter the writ petition was disposed of. The applicants aggrieved by the said judgment filed a review petition. This review petition was also dismissed. In the instant case even the curative petition has also been dismissed. The applicants now want to reopen this case by filing these interlocutory applications. 157. The applicants certainly cannot be provided an entry by back door method and permit the unsuccessful litigant to re- agitate and reargue their cases. The applicants have filed these applications merely to avoid compliance of the order of the court. The applicants have been successful in their endeavour and have not permitted the judgment delivered on 3.2.1996 to acquire finality till date. It is strange that other respondents did not implement the final order of this court without there being any order or direction of this court. These applications being devoid of any merit deserve to be dismissed with heavy costs.

The other important principles which need elucidation are regarding unjust enrichment, restitution and compound inte rests. 158. Dr. Arun Mohan, Senior Advocate of this court in a recently published book with the title “Justice, Courts and Delays” analytically, lucidly while taking in view pragmatic realities elucidated concepts of unjust enrichment, restitution and compound interest.

159. By the judgment dated 13.02.1996 this court fixed the liability but did not fix any specific amount, which was ordered to be ascertained. It was on the lines of a preliminary decree in a suit which determines the liability, but leaves the precise amount to be ascertained in further proceedings and upon the process of ascertainment being completed, a final decree for payment of the precise amount is passed.

160. By judgment dated 4.11.1997 this Court, accepting the ascertainment, fixed the amount. The order reads as under:

“… … …remedial measures taken on the basis of the NEERI report shall be treated as final.

We accept the proposal submitted by the Government of India for the purpose of taking remedial measures by appointing National Productivity Council as the Project Management Consultant. In our opinion the Ministry of Environment and Forests, Government of India has rightly made a demand for Rs.37.385 crores.”

161. The exact liability was quantified which the applicant- M/s Hindustan Agro Chemical Ltd. was under an obligation to pay. The liability to pay arose on that particular date i.e. 4.11.1997. In other words, this was in the lines of a final decree pursuant to a preliminary decree. 162. On that judgment being passed, the position of the applicant in Application No.44 was that of `judgment-debtor’ and the applicant became liable to pay forthwith.

163. Admittedly, the amount has not been paid. Instead, that payment they sought to postpone by raising various challenges in this court and in the meantime `utilised’ that money, i.e., benefitted. As a consequence, the non-applicants (respondents-states herein) were `deprived’ of the use of that money for taking remedial measures. The challenge has now – nearly 14 years later – been finally decided against them.

164. The appellant they must pay the amount is one thing but should they pay only that amount or something more? If the period were a few days or months it would have been different but here it is almost 14 years have been lapsed and amount has not been paid. The questions therefore are really three:

1.Can a party who does not comply with the court order be permitted to retain the benefits of his own wrong of non-compliance? 2.Whether the successful party be not compensated by way of restitution for deprivation of its legitimate dues for more than fourteen years? and 3.Whether the court should not remove all incentives for not complying with the judgment of the court? Answering these questions will necessitate analysis of certain concepts.

165. It is settled principle of law that no one can take advantage of his own wrong.

166. Unless courts disgorge all benefits that a party availed by obstruction or delays or non-compliance, there will always be incentive for non compliance, and parties are ingenious enough to come up with all kinds of pleas and other tactics to achieve their end because they know that in the end the benefit will remain with them.

167. Whatever benefits a person has had or could have had by not complying with the judgment must being disgorged and paid to the judgment creditor and not, allowed to be retained by the judgment-debtor. This is the bounden duty and obligation of the court.

168. In fact, it has to be looked from the position of the creditor. Unless the deprivation by reason of delay is fully restituted, the creditor as a beneficiary remains a loser to the extent of the un-restituted amount.

UNJUST ENRICHMENT
169. Unjust enrichment has been defined as: “A benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense.” See Black’s Law Dictionary, Eighth Edition (Bryan A. Garner) at page 1573.

170. A claim for unjust enrichment arises where there has been an “unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience.” 171. `Unjust enrichment’ has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. 172. Unjust enrichment is “the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience.” A defendant may be liable “even when the defendant retaining the benefit is not a wrongdoer” and “even though he may have received [it] honestly in the first instance.” (Schock v. Nash, 732 A.2d 217, 232-33 (Delaware. 1999). USA) 173. Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain. 174. In the leading case of Fibrosa v. Fairbairn, [1942] 2 All ER 122, Lord Wright stated the principle thus :

“….(A)ny civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution.”

175. Lord Denning also stated in Nelson v. Larholt, [1947] 2 All ER 751 as under:- “It is no longer appropriate, however, to draw a distinction between law and equity. Principles have now to be stated in the light of their combined effect. Nor is it necessary to canvass the niceties of the old forms of action. Remedies now depend on the substance of the right, not on whether they can be fitted into a particular frame-work. The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution if the justice of the case so requires.”

176. The above principle has been accepted in India. This Court in several cases has applied the doctrine of unjust enrichment.

RESTITUTION AND COMPOUND INTEREST
177. American Jurisprudence 2d. Volume 66 Am Jur 2d defined Restitution as follows:
“The word `restitution’ was used in the earlier common law to denote the return or restoration of a specific thing or condition. In modern legal usage, its meaning has frequently been extended to include not only the restoration or giving back of something to its rightful owner, but also compensation, reimbursement, indemnification, or reparation for benefits derived from, or for loss or injury caused to, another. As a general principle, the obligation to do justice rests upon all persons, natural and artificial; if one obtains the money or property of others without authority, the law, independently of express contract, will compel restitution or compensation.”

178. While Section (‘) 3 (Unjust Enrichment) reads as under:

“The phrase “unjust enrichment” is used in law to characterize the result or effect of a failure to make restitution of, or for, property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefor. It is a general principle, underlying various legal doctrines and remedies, that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly.” 179. Unjust enrichment is basic to the subject of restitution, and is indeed approached as a fundamental principle thereof. They are usually linked together, and restitution is frequently based upon the theory of unjust enrichment. However, although unjust enrichment is often referred to or regarded as a ground for restitution, it is perhaps more accurate to regard it as a prerequisite, for usually there can be no restitution without unjust enrichment. It is defined as the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. 180. While the term `restitution’ was considered by the Supreme Court in South-Eastern Coalfields 2003 (8) SCC 648 and other cases excerpted later, the term `unjust enrichment’ came to be considered in Sahakari Khand Udyog Mandal Ltd vs Commissioner of Central Excise & Customs ((2005) 3 SCC 738).

181. This Court said:

“`Unjust enrichment’ means retention of a benefit by a person that is unjust or inequitable. `Unjust enrichment’ occurs when a person retains money or benefits which in justice, equity and good conscience, belong to someone else.”

182. The terms `unjust enrichment’ and `restitution’ are like the two shades of green – one leaning towards yellow and the other towards blue. With restitution, so long as the deprivation of the other has not been fully compensated for, injustice to that extent remains. Which label is appropriate under which circumstances would depend on the facts of the particular case before the court. The courts have wide powers to grant restitution, and more so where it relates to misuse or non-compliance with court orders.

183. We may add that restitution and unjust enrichment, along with an overlap, have to be viewed with reference to the  135 two stages, i.e., pre-suit and post-suit. In the former case, it becomes a substantive law (or common law) right that the court will consider; but in the latter case, when the parties are before the court and any act/omission, or simply passage of time, results in deprivation of one, or unjust enrichment of the other, the jurisdiction of the court to levelise and do justice is independent and must be readily wielded, otherwise it will be allowing the Court’s own process, along with time delay, to do injustice.

184 . For this second stage (post-suit), the need for restitution in relation to court proceedings, gives full jurisdiction to the court, to pass appropriate orders that levelise. Only the court has to levelise and not go further into the realm of penalty which will be a separate area for consideration altogether.

185. This view of law as propounded by the author Graham Virgo in his celebrated book on “The Principle of Law of Restitution” has been accepted by a later decision of the House of Lords (now the UK Supreme Court) reported as  136 Sempra Metals Ltd (formerly Metallgesellschaft Limited) v Her Majesty’s Commissioners of Inland Revenue and Another [2007] UKHL 34 = [2007] UKHL 34; [2007] 3 WLR 354 = [2008] 1 AC 561 = [2007] UKHL 34; [2007] All ER (D) 294.

186. In similar strain, across the Altantic Ocean, a nine judge Bench of the Supreme Court of Canada in Bank of America Canada vs Mutual Trust Co. [2002] 2 SCR 601 = 2002 SCC 43 (both Canadian Reports) took the view :

“There seems in principle no reason why compound interest should not be awarded. Had prompt recompense been made at the date of the wrong the plaintiff should have had a capital sum to invest; the plaintiff would have received interest on it at regular intervals and would have invested those sums also. By the same token the defendant will have had the benefit of compound interest. Although not historically available, compound interest is well suited to compensate a plaintiff for the interval between when damages initially arise and when they are finally paid.”

187. This view seems to be correct and in consonance with the principles of equity and justice.

188. Another way of looking at it is suppose the judgment- debtor had borrowed the money from the nationalised bank as a clean loan and paid the money into this court. What would be the bank’s demand.

189. In other words, if payment of an amount equivalent of what the ledger account in the nationalised bank on a clean load would have shown as a debit balance today is not paid and something less than that is paid, that differential or shortfall is what there has been : (1) failure to restitute; (2) unfair gain by the non-complier; and (3) provided the incentive to obstruct or delay payment.

190. Unless this differential is paid, justice has not been done to the creditor. It only encourages non-compliance and litigation. Even if no benefit had been retained or availed even then, to do justice, the debtor must pay the money. In other words, it is this is not only disgorging all the benefits but making the creditor whole i.e. ordering restitution in full and not dependent on what he might have made or benefitted is what justice requires.

LEGAL POSITION UNDER THE CODE OF CIVIL PROCEDURE
191. One reason the law has not developed on this is because of the wording of Section 34 of the Code of Civil Procedure which still proceeds on the basis of simple interest. In fact, it is this difference which prompts much of our commercial litigation because the debtor feels – calculates and assesses – that to cause litigation and then to contest with obstructions and delays will be beneficial because the court is empowered to allow only simple interest. A case for law reform on this is a separate issue.

192. In the point under consideration, which does not arise from a suit for recovery under the Code of Civil Procedure, the inherent powers in the court and the principles of justice and equity are each sufficient to enable an order directing payment of compound interest. The power to order compound interest as part of restitution cannot be disputed, otherwise there can never be restitution.

PRECEDENTS ON EXERCISE OF POWERS BY THE COURT TOMAKE THE BENEFICIARY WHOLE – RESTITUTION
193. This court in Grindlays Bank Limited vs Income Tax Officer, Calcutta [1980] INSC 3; (1980) 2 SCC 191 observed as under :- “…When passing such orders the High Court draws on its inherent power to make all such orders as are necessary for doing complete justice between the parties. The interests of justice require that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court, by the mere circumstance that it has initiated a proceeding in the court, must be neutralised. The simple fact of the institution of litigation by itself should not be permitted to confer an advantage on the party responsible for it. …”

194. In Ram Krishna Verma and Others vs State of U.P. and Others [1992] INSC 99; (1992) 2 SCC 620 this court observed as under :- “The 50 operators including the appellants/ private operators have been running their stage carriages by blatant abuse of the process of the court by delaying the hearing as directed in Jeevan Nath Bahl’s case and the High Court earlier thereto. As a fact, on the expiry of the initial period of grant after Sept. 29, 1959 they lost the right to obtain renewal or to ply their vehicles, as this Court declared the scheme to be operative. However, by sheer abuse of the process of law they are continuing to ply their vehicles pending hearing of the objections. This Court in Grindlays Bank Ltd. vs Income-tax Officer – [1990] 2 SCC 191 held that the High Court while exercising its power under Article 226 the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised. It was further held that the institution of the litigation by it should not be permitted to confer an unfair advantage on the party responsible for it. In the light of that law and in view of the power under Article 142(1) of the Constitution this Court, while exercising its jurisdiction would do complete justice and neutralise the unfair advantage gained by the 50 operators including the appellants in dragging the litigation to run the stage carriages on the approved route or area or portion thereof and forfeited their right to hearing of the objections filed by them to the draft scheme dated Feb. 26, 1959. …”

195. This court in Kavita Trehan vs Balsara Hygiene Products [1994] INSC 353; (1994) 5 SCC 380 observed as under :- “The jurisdiction to make restitution is inherent in every court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers where the case did not strictly fall within the ambit of Section 144. Section 144 opens with the words “Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, …”. The instant case may not strictly fall within the terms of Section 144; but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every court.”

196. This court in Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. and Another (1999) 2 SCC 325 observed as under :- “From the narration of the facts, though it appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and on occasion become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary. Because of the delay unscrupulous parties to the proceedings take undue advantage and person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also known fact that after obtaining a decree for possession of immovable property, its execution takes long time. In such a situation for protecting the interest of judgment creditor, it is necessary to pass appropriate order so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property. In appropriate cases, Court may appoint Receiver and direct the person who is holding over the property to act as an agent of the Receiver with a direction to deposit the royalty amount fixed by the Receiver or pass such other order which may meet the interest of justice. This may prevent further injury to the plaintiff in whose favour decree is passed and to protect the property including further alienation.”

197. In Padmawati vs Harijan Sewak Sangh – CM (Main) No.449 of 2002 decided by the Delhi high Court on 6.11.2008, the court held as under:- “The case at hand shows that frivolous defences and frivolous litigation is a calculated venture involving no risks situation. You have only to engage professionals to prolong the litigation so as to deprive the rights of a person and enjoy the fruits of illegalities. I consider that in such cases where Court finds that using the Courts as a tool, a litigant has perpetuated illegalities or has perpetuated an illegal possession, the Court must impose costs on such litigants which should be equal to the benefits derived by the litigant and harm and deprivation suffered by the rightful person so as to check the frivolous litigation and prevent the people from reaping a rich harvest of illegal acts through the Court. One of the aims of every judicial system has to be to discourage unjust enrichment using Courts as a tool. The costs imposed by the Courts must in all cases should be the real costs equal to deprivation suffered by the rightful person.”

198. We approve the findings of the High Court of Delhi in the aforementioned case.

199. The Court also stated: “Before parting with this case, we consider it necessary to observe that one of the main reasons for over-flowing of court dockets is the frivolous litigation in which the Courts are engaged by the litigants and which is dragged as long as possible. Even if these litigants ultimately loose the lis, they become the real victors and have the last laugh. This class of people who perpetuate illegal acts by obtaining stays and injunctions from the Courts must be made to pay the sufferer not only the entire illegal gains made by them as costs to the person deprived of his right and also must be burdened with exemplary costs. Faith of people in judiciary can only be sustained if the persons on the right side of the law do not feel that even if they keep fighting for justice in the Court and ultimately win, they would turn out to be a fool since winning a case after 20 or 30 years would make wrongdoer as real gainer, who had reaped the benefits for all those years. Thus, it becomes the duty of the Courts to see that such wrongdoers are discouraged at every step and even if they succeed in prolonging the litigation due to their money power, ultimately they must suffer the costs of all these years long litigation. Despite settled legal positions, the obvious wrong doers, use one after another tier of judicial review mechanism as a gamble, knowing fully well that dice is always loaded in their favour, since even if they lose, the time gained is the real gain. This situation must be redeemed by the Courts.”

200. Against this judgment, Special Leave to Appeal (Civil) No 29197/2008 was preferred to the this Court. The Court passed the following order:

“We have heard learned counsel appearing for the parties. We find no ground to interfere with the well-considered judgment passed by the High Court. The Special Leave Petition is, accordingly, dismissed.”

Interest on interest 201. This court in Alok Shanker Pandey vs Union of India & Others (2007) 3 SCC 545 observed as under:- “We are of the opinion that there is no hard and fast rule about how much interest should be granted and it all depends on the facts and circumstances of the each case. We are of the opinion that the grant of interest of 12% per annum is appropriate in the facts of this particular case. However, we are also of the opinion that since interest was not granted to the appellant along with the principal amount the respondent should then in addition to the interest at the rate of 12% per annum also pay to appellant interest at the same rate on the aforesaid interest from the date of payment of instalments by the appellant to the respondent till the date of refund on this amount, and the entire amount mentioned above must be paid to the appellant within two months from the date of this judgment.

It may be mentioned that there is misconception about interest. Interest is not a penalty or punishment at all, but it is the normal accretion on capital.”

Compound Interest 202. To do complete justice, prevent wrongs, remove incentive for wrongdoing or delay, and to implement in practical terms the concepts of Time Value of Money, restitution and unjust enrichment noted above – or to simply levelise – a convenient approach is calculating interest. But here interest has to be calculated on compound basis – and not simple – for the latter leaves much uncalled for benefits in the hands of the wrongdoer. 203. Further, a related concept of inflation is also to be kept in mind and the concept of compound interest takes into account, by reason of prevailing rates, both these factors, i.e., use of the money and the inflationary trends, as the market forces and predictions work out.

204. Some of our statute law provide only for simple interest and not compound interest. In those situations, the courts are helpless and it is a matter of law reform which the Law Commission must take note and more so, because the serious effect it has on administration of justice. However, the power of the court to order compound interest by way of restitution is not fettered in any way. We request the Law Commission to consider and recommend necessary amendments in relevant laws.

205. `Compound interest’ is defined in Black’s Law Dictionary, Eighth Edition (Bryan A. Garner) at page 830 as `Interest paid on both the principal and the previously accumulated interest.’ It is a method of arriving at a figure  147 which nears the time value of money submitted under Head-2 earlier.

206. As noted, compound interest is a norm for all commercial transactions.

207. Graham Virgo in his important book on `The Principles of the Law of Restitution” at pp26-27 has stated and relevant portion is reproduced as under:

“In Westdeutsche Landesbank Girozentrale v London Borough Council [1996] UKHL 12; 1996 A.C. 669 the issue for the House of Lords was whether compound interest was available in respect of all restitutionary claims. By a majority it was decided that, since the jurisdiction to award compound interest was equitable, compound interest could only be awarded in respect of equitable restitutionary claims. Consequently, where the claim was for money had and received the claimant could only obtain simple interest because this was a common law claim. The majority supported their conclusion by reference to a number of different arguments. In particular, they asserted that, since Parliament had decided in 1981 that simple interest should be awarded on claims at common law, it was not for the House of Lords to award compound interest in respect of such claims. But the Supreme Court Act 1981 does not specifically exclude the award of compound interest in respect of common law claims. Rather, it recognizes that the court can award simple interest for such claims. The equitable jurisdiction to award compound interest is still available in appropriate cases.

In two very strong dissenting judgments, Lords Goff and Woolf rejected the argument of the majority. They asserted that, since the policy of the law of restitution was to remove benefits from the defendant, compound interest should be available in respect of all restitutionary claims, regardless of whether they arise at law or in equity. This argument can be illustrated by the following example. In the straightforward case where the claimant pays money to the defendant by mistake and defendant is liable to repay that money, the liability arises from the moment the money is received by the defendant, who has the use of it and so should pay the claimant for the value of that benefit. This was accepted by all the judges in the case. The difficulty relates to the valuation of this benefit. If the defendant was to borrow an equivalent amount of money from a financial institution, he or she would be liable to pay compound interest to that institution. It follows that the defendant has saved that amount of money and so this is the value of the benefit which the defendant should restore to the claimant, in addition to the value of the money which the defendant received in the first place. If it could be shown that, had the defendant borrowed the equivalent amount of money, the institution would only have paid simple interest, it would be appropriate for the interest awarded to the claimant to be simple rather than compound. Usually, however, the interest awarded in commercial transactions will be compound interest.”

208. In Marshall sons and company (I) Limited v. Sahi Oretrans (P) Limited and another (1999) 2 SCC 325 this court in para 4 of the judgment observed as under:

“…It is true that proceedings are dragged for a long time on one count or the other and, on occasion, become highly technical accompanied by unending prolixity at every stage providing a legal trap to the unwary. Because of the delay, unscrupulous parties to the proceedings take undue advantage and a person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also a known fact that after obtaining a decree for possession of immovable property, its execution takes a long time. In such a situation, for protecting the interest of the judgment-creditor, it is necessary to pass appropriate orders so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property. In appropriate cases, the court may appoint a Receiver and direct the person who is holding over the property to act as an agent of the Receiver with a direction to deposit the royalty amount fixed by the Receiver or pass such other order which may meet the interest of justice. This may prevent further injury to the plaintiff in whose favour the decree is passed and to protect the property including further alienation. …”

209. In Ouseph Mathai and others v. M. Abdul Khadir (2002) 1 SCC 319 this court reiterated the legal position that  150 the stay granted by the court does not confer a right upon a party and it is granted always subject to the final result of the matter in the court and at the risk and costs of the party obtaining the stay. After the dismissal, of the lis, the party concerned is relegated to the position which existed prior to the filing of the petition in the court which had granted the stay. Grant of stay does not automatically amount to extension of a statutory protection. 210. This court in South Eastern Coalfields Limited v. State of M.P. and others (2003) 8 SCC 648 on examining the principle of restitution in para 26 of the judgment observed as under:

“In our opinion, the principle of restitution takes care of this submission. The word “restitution” in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution of decree or order of the court or in direct consequence of a decree or order (see Zafar Khan v. Board of Revenue, U.P – (1984) Supp SCC 505) In law, the term “restitution” is used in three senses: (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; and (iii) compensation or reparation for the loss caused to another.”

211. The court in para 28 of the aforesaid judgment very carefully mentioned that the litigation should not turn into a fruitful industry and observed as under:

“… … …Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation.”

212. The court in the aforesaid judgment also observed that once the doctrine of restitution is attracted, the interest is often a normal relief given in restitution. Such interest is not controlled by the provisions of the Interest Act of 1839 or 1978.

213. In a relatively recent judgment of this court in Amarjeet Singh and others v. Devi Ratan and others (2010) 1 SCC 417 the court in para 17 of the judgment observed as under:

“No litigant can derive any benefit from mere pendency of case in a court of law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of its own wrongs by getting an interim order and thereafter blame the court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no one, becomes applicable in such a case. In such a fact situation the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the court. … …”

214. In another recent judgment of this court in Kalabharati Advertising v. Hemant Vimalnath Narichania and others (2010) 9 SCC 437 this court in para 15 observed as under:

“No litigant can derive any benefit from the mere pendency of a case in a court of law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the court. The fact that the case is found, ultimately, devoid of any merit, or the party withdrew the writ petition, shows that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no one, becomes applicable in such a case. In such a situation the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the court.”

215. In consonance with the concept of restitution, it was observed that courts should be careful and pass an order neutralizing the effect of all consequential orders passed in pursuance of the interim orders passed by the court. Such express directions may be necessary to check the rising trend among the litigants to secure the relief as an interim measure and then avoid adjudication on merits.

216. In consonance with the principle of equity, justice and good conscience judges should ensure that the legal process is not abused by the litigants in any manner. The court should never permit a litigant to perpetuate illegality by abusing the legal process. It is the bounden duty of the court to ensure that dishonesty and any attempt to abuse the legal process must be effectively curbed and the court must ensure that there is no wrongful, unauthorized or unjust gain for anyone by the abuse of the process of the court. One way to curb this tendency is to impose realistic costs, which the respondent or the defendant has in fact incurred in order to defend himself in the legal proceedings. The courts would be fully justified even imposing punitive costs where legal process has been abused. No one should be permitted to use the judicial process for earning undeserved gains or unjust profits. The court must effectively discourage fraudulent, unscrupulous and dishonest litigation.

217. The court’s constant endeavour must be to ensure that everyone gets just and fair treatment. The court while rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation. The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases. 218. This court in a very recent case Ramrameshwari Devi and Others v. Nirmala Devi and Others 2011(6) Scale 677 had an occasion to deal with similar questions of law regarding imposition of realistic costs and restitution. One of us (Bhandari, J.) was the author of the judgment. It was observed in that case as under:

“While imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.

The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years.”

219. We reiterate that the finality of the judgment of the Apex Court has great sanctity and unless there are extremely compelling or exceptional circumstances, the judgments of the Apex Court should not be disturbed particularly in a case where review and curative petitions have already been dismissed. 220. This Court has consistently taken the view that the judgments delivered by this Court while exercising its jurisdiction under Article 136 of the Constitution cannot be reopened in a writ petition filed under Article 32 of the Constitution. In view of this legal position, how can a final judgment of this Court be reopened by merely filing interlocutory applications where all possible legal remedies have been fully exhausted? When we revert to the facts of this case, it becomes abundantly clear that this Court delivered  157 final judgment in this case way back in 1996. The said judgment has not been permitted to acquire finality because the respondent Nos. 4 to 8 had filed multiple interlocutory applications and has ensured non-compliance of the judgment of this Court.

221. On consideration of pleadings and relevant judgments of the various courts, following irresistible conclusion emerge:

i) The judgment of the Apex Court has great sanctity and unless there are extremely compelling, overriding and exceptional circumstances, the judgment of the Apex Court should not be disturbed particularly in a case where review and curative petitions have already been dismissed ii) The exception to this general rule is where in the proceedings the concerned judge failed to disclose the connection with the subject matter or the parties giving scope of an apprehension of bias and the judgment adversely affected the petitioner.

iii) The other exception to the rule is the circumstances incorporated in the review or curative petition are such that they must inevitably shake public confidence in the integrity of the administration of justice if the judgment or order is allowed to stand.

222. These categories are illustrative and not exhaustive but only in such extremely exceptional circumstances the order can be recalled in order to avoid irremedial injustice.

223. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view.

1. It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court.

2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party.

3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court.

4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any leniency would seriously affect the credibility of the judicial system.

5. No litigant can derive benefit from the mere pendency of a case in a court of law.

6. A party cannot be allowed to take any benefit of his own wrongs.

7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court.

8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts.

224. It may be pertinent to mention that even after dismissal of review petition and of the curative petition on 18.7.2002, the applicants (respondent Nos. 4 to 8) have been repeatedly filing one petition or the other in order to keep the litigation alive. It is indeed astonishing that the orders of this court have not been implemented till date. The applicants have made all possible efforts to avoid compliance of the judgment of this Court. This is a clear case of abuse of process of the court. 225. The Court in its order dated 04.11.1997 while accepting the report of the MOEF directed the applicant – M/s Hindustan Agro Chemical Ltd. to pay a sum of Rs.37.385 crores towards the costs of remediation. The amount which ought to have been deposited way back in 1997 has yet not been deposited by keeping the litigation alive. 226. We have carefully considered the facts and circumstances of this case. We have also considered the law declared by this Court and by other countries in a number of cases. We are clearly of the opinion that the concerned applicant-industry must deposit the amount as directed by this Court vide order dated 4.11.1997 with compound interest. The applicant-industry has deliberately not complied with the orders of this court since 4.11.1997. Thousands of villagers have been adversely affected because no effective remedial steps have been taken so far. The applicant- industry has succeeded in their design in not complying with the court’s order by keeping the litigation alive. 227. Both these interlocutory applications being totally devoid of any merit are accordingly dismissed with costs. Consequently, the applicant-industry is directed to pay Rs.37.385 crores along with compound interest @ 12% per annum from 4.11.1997 till the amount is paid or recovered. 228. The applicant-industry is also directed to pay costs of litigation. Even after final judgment of this Court, the litigation has been kept alive for almost 15 years. The respondents have been compelled to defend this litigation for all these years. Enormous court’s time has been wasted for all these years. 229. On consideration of the totality of the facts and circumstances of this case, we direct the applicant-industry to pay costs of Rs.10 lakhs in both the Interlocutory Applications. The amount of costs would also be utilized for carrying out remedial measure in village Bichhri and surrounding areas in Udaipur District of Rajasthan on the direction of the concerned authorities.

230. In case the amount as directed by this Court and costs imposed by this Court are not paid within two months, the same would be recovered as arrears of the land revenue.

231. Both these interlocutory applications are accordingly disposed of.

….…………………………………J.
(DALVEER BHANDARI)

…..………………………………..J.
(H.L. DATTU)

New Delhi;
July 18, 2011

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