Indian Council for Enviro-Legal Action v. Union of India

Chemical units in Bichhri village, Rajasthan, made a toxic chemical called H acid and left highly toxic sludge and waste water behind. This poisoned wells and soil over about 350 hectares. The Supreme Court held the units liable under the rule of absolute liability and the Polluter Pays principle, ordered them closed, and asked the Central Government to fix and recover the cost of repair.

Quick Revision

Parties

Indian Council for Enviro-Legal Action — petitioner in Writ Petition (C) No. 967 of 1989; an environmentalist organisation that filed the social action litigation.

Union of India — respondent; the Ministry of Environment and Forests (MoEF) filed a counter-affidavit and sent an expert team.

State of Rajasthan — respondent; said it was ready to carry out the Court's orders.

Rajasthan Pollution Control Board (R.P.C.B.) — respondent; the State pollution control authority that inspected the units and passed closure orders.

Hindustan Agro Chemicals Limited — respondent No. 4; runs a complex of plants in Bichhri and the main respondent.

Silver Chemicals — respondent No. 5; made H acid for export in the complex.

Rajasthan Multi Fertilizers — respondent No. 6; a fertiliser unit in the complex.

Phosphates India — respondent No. 7; a fertiliser unit said to have merged with respondent No. 4.

Jyoti Chemicals — respondent No. 8; made ferric alum and some H acid.

Hindustan Zinc Limited — respondent No. 9; a public sector unit, impleaded at the request of respondents 4 to 8.

Procedural History

1. The petition was filed in August 1989 under Article 32 (Jeevan Reddy, J.).
2. On 11 December 1989 the Court asked the National Environmental Engineering Research Institute (NEERI) to study the situation. It also ordered drinking water for affected villages (Jeevan Reddy, J.).
3. On 5 March 1990 the Court directed the R.P.C.B. to arrange treatment and safe storage of the sludge at the cost of respondents 4 to 8. On 4 April 1990 it ordered the sludge stored in safe places within five weeks, before the monsoon, to avoid seepage into the soil Respondents 4 to 8 had said they stopped H acid and would not resume, and offered to de-water the wells themselves. The R.P.C.B. was to inspect and indicate the wells. The petitioner said the sludge still had to be treated, stored and removed (Jeevan Reddy, J.).
4. The Court's order of 11 December 1989 asked NEERI to report on the choice and scale of the available remedial alternatives, with short-term and long-term measures, and asked the R.P.C.B. to make its own report available. (Jeevan Reddy, J.)
5. On 17 February 1992 the Court directed MoEF to send experts. The cost of storage and transport was to be recovered from the respondents. Respondent No. 9 denied responsibility. On 6 April 1992 it ordered the sludge entombed under MoEF supervision It said stopping or suspending all the respondents' units might be needed to revamp the soil, but that this required further examination. The entombment faced delays, with each side blaming the other, and the work finally began (Jeevan Reddy, J.).
6. On 20 August 1993 the Court ordered samples to be analysed. The experts reported on 1 November 1993 (Jeevan Reddy, J.).
7. The R.P.C.B. closed the Sulphuric Acid Plant and the solvent extraction plant of respondent No. 4 under Section 33A of the Water Act. Respondent No. 4 filed Writ Petition (C) No. 76 of 1994 in January 1994. The respondent said orders were passed without waiting for its show-cause reply, with malafide intent. Orders followed on 7 March, 18 March (the R.P.C.B. to examine permission to re-start or any interim arrangement), 8 April (a deposit of Rs 60,000 before 11 April 1994) and 28 April 1994 (the industry to do any other work the R.P.C.B. pointed out, forthwith) (Jeevan Reddy, J.).
8. NEERI submitted its report in April 1994 (Jeevan Reddy, J.).
9. On 13 October 1995 the matters were listed for regular hearing. The Court heard the parties on 10, 11, 16 and 17 January 1996 (Jeevan Reddy, J.).
10. The R.P.C.B. filed a fresh report on 16 January 1996 (Jeevan Reddy, J.).
11. The Court decided the petitions on 13 February 1996 (Jeevan Reddy, J.).

Facts

1. Bichhri is a small village in Udaipur district, Rajasthan. Hindustan Zinc Limited lies to its north. Respondent No. 4 began making Oleum and Single Super Phosphate in 1987 (Jeevan Reddy, J.).
2. Silver Chemicals (Respondent No. 5) began making H acid, meant only for export, in the same complex. Jyoti Chemicals (Respondent No. 8) also made H acid. Respondents 4 to 8 are in one complex, in Bichhri, under the same group of individuals (Jeevan Reddy, J.).
3. H acid production creates toxic iron-based and gypsum-based sludge. It is said to be banned in western countries. The units made about 375 MT of H acid, which gave rise to 2,400-2,500 MT of sludge (Jeevan Reddy, J.).
4. The toxic waste water flowed out untreated and the sludge was thrown in the open. The poison percolated into the aquifers. The wells and streams turned dark and unfit for humans, cattle and irrigation (Jeevan Reddy, J.).
5. The villagers rose in revolt. The District Magistrate imposed Section 144 of the Code of Criminal Procedure. Silver Chemicals closed in January 1989 (Jeevan Reddy, J.).
6. The petition was filed in August 1989 with photographs and technical data (Jeevan Reddy, J.).
7. The R.P.C.B. counter-affidavit was filed on 26 October 1989. It said respondent No. 4 changed its product without clearance and that consent was refused on 16 February 1987. Directions were also issued to close down the unit (Jeevan Reddy, J.).
8. It said Silver Chemicals was commissioned in February 1988 without consent. Its waste water is highly acidic with very high dissolved solids. A closure notice was served on 30 April 1988, and consent was refused on an application of 12 May 1988. The unit was found closed on 2 October 1989 (Jeevan Reddy, J.).
9. The Board asked the Government to cut electricity and water to Silver Chemicals, but no action was taken. (Jeevan Reddy, J.)
10. It said Rajasthan Multi Fertilizers and Phosphates India were set up without a No-Objection Certificate or consent. Notices were served on 20 February 1989. Rajasthan Multi Fertilizers said it had been closed for three years and its electricity was cut on 12 February 1988. Phosphates India said it had been closed for a long time (Jeevan Reddy, J.).
11. It said Jyoti Chemicals got a No-Objection Certificate on 8 April 1988, withdrawn on 30 May 1988. Consent for H acid, applied for on 9 February 1989, was refused on 30 May 1989. The Board was watching that it did not start H acid. The unit was found closed on 2 October 1989 (Jeevan Reddy, J.).
12. The Board said the sludge must be disposed of under the Hazardous Wastes (Management and Handling) Rules, 1989. It said respondents 4 to 8 were responsible (Jeevan Reddy, J.).
13. The Government of Rajasthan filed its counter-affidavit on 20 January 1990. It said it was aware of the pollution of ground water and had started action. It said water in some wells was unfit for humans and cattle (Jeevan Reddy, J.).
14. The Ministry of Environment and Forests filed its counter on 8 February 1990. It said Silver Chemicals had only a Letter of Intent and never applied for an industrial licence. It said Jyoti Chemicals never approached the Government. Producing before a licence is an offence under the Industries (Development and Regulation) Act, 1951 (Jeevan Reddy, J.).
15. It enclosed a Centre for Science and Environment report of June 1989. The report said the effluents were hard to treat, and about 60 wells were polluted, with new wells affected every week. It said setting up such an industry in a critical ground-water area was ill-conceived. Effluent overflowed into the Udaisagar main canal, corroding its bed and banks and damaging crops. The industry used an unlined holding pond and sprayed effluent on the hill-slope, causing seepage. The report recorded human illness and even death, and feared the monsoon would spread the pollution (Jeevan Reddy, J.).
16. Respondents 4 to 8 filed counters sworn by Lt. Gen. M.L. Yadava. Respondent No. 4 said it made sulphuric acid, started on 6 January 1987, and held consents valid to 15 August 1988 (Jeevan Reddy, J.).
17. Respondent No. 4 said it is in no way responsible for the situation (Jeevan Reddy, J.).
18. Respondent No. 5 said H acid production began in February 1988 and stopped after January 1989. It said it was ready to cooperate and comply with any directions. It blamed Hindustan Zinc Limited and said Rajasthan's Archaeological Department, the Executive Engineer (Irrigation) and the Wild Life Warden gave clearances. It said it closed because of the Section 144 order (Jeevan Reddy, J.).
19. Respondent No. 6 said it produced from 14 March 1982, closed in December 1985 and lost electricity on 13 February 1988. Respondent No. 6 said it is a small-scale industry that needed no consent, and denied causing pollution. Respondent No. 7 said it began on 15 May 1988, closed on 1 September 1988 and merged with respondent No. 4 in 1987-88. It said it closed for want of Central Government subsidies (Jeevan Reddy, J.).
20. Respondent No. 8 said it began in April 1987, closed in January 1989, and made 20 MT of H acid as trial production with permission, in January 1987. It said it is small-scale, registered with the District Industry Centre, and not responsible since it no longer makes H acid (Jeevan Reddy, J.).
21. Hindustan Zinc Limited denied any responsibility. The Court found it unnecessary to consider its affidavit, since the petition concerns pollution by respondents 4 to 8 only (Jeevan Reddy, J.).
22. The R.P.C.B. report before the February 1992 order presented a disturbing picture. It said the respondents had deliberately spread the sludge all over the place, which heightened the problem of removal. It said they failed to carry out the order of 4 April 1990. The Court then asked MoEF to send experts immediately to find the extent of the sludge (Jeevan Reddy, J.).
23. The February 1992 order recorded 2,268 MT of gypsum-based sludge and about 189 MT of iron-based sludge. The MoEF team reported on 30 March 1992 that sludge was mixed with soil or exposed to sun and rain, and the aquifer might be affected (Jeevan Reddy, J.).
24. The November 1993 report concluded beyond doubt that ground water was contaminated by H acid effluent and sludge. About 720 tonnes were entombed in six lined pits (Jeevan Reddy, J.).
25. The team saw a five metre high heap of foreign soil covering the old dump site. Untreated acidic effluent from other units ran through the sludge area (Jeevan Reddy, J.).
26. The NEERI report of April 1994 found about 8,250 cubic metres of waste water and 2,440 tonnes of sludge. Only 720 MT could be entombed. Soil and ground water within 2 kilometres were contaminated (Jeevan Reddy, J.).
27. It said 350 hectares were contaminated and ecologically fragile. It estimated Rs 342.8 lakhs as damages to villagers and Rs 3738.5 lakhs (Rs 37.385 crores) for restoring wells and soil (Jeevan Reddy, J.).
28. It also found that the industry produced chlorosulfonic acid for a few months in late 1992, and discharged untreated waste water on land (Jeevan Reddy, J.).
29. The R.P.C.B. report of 16 January 1996 found Silver Chemicals and Jyoti Chemicals no longer existed. Respondent No. 4 had seven plants, none working on inspection. Sludge mixed with soil lay about 3,000 sq ft next to the irrigation canal, covered with foreign soil, and fresh soil had been spread over most of the area. Samples were taken after notices under the Environment Protection Act, and the exact quantity was very hard to estimate. A godown and a Ferric Alum plant stand on the site of the closed plants. Sludge mixed with soil lay over a large area, and water in 16 of 32 places was still coloured (Jeevan Reddy, J.).
30. Respondent No. 4's letter of 13 January 1996 gave last production dates: Sulphuric Acid Plant 10 November 1995, S.S.P. Plant (Phosphates India) 11 November 1995, G.S.S.P. Plant (Rajasthan Multi Fertilizers) 7 July 1995, Solvent Extraction Plant and Refinery 2 December 1993, Jyoti Chemicals October 1990 and Chlorosulphonic Acid Plant 29 September 1995. The Court noted that these differ from the closure dates in the 1990-91 counters (Jeevan Reddy, J.).

Issues Raised

1. Does a writ petition under Article 32 lie when respondents 4 to 8 are private bodies, not the State under Article 12?
2. Can the reports of the R.P.C.B., NEERI and the central experts be relied on when the respondents say they are hostile or untested?
3. Are respondents 4 to 8 responsible for the pollution in Bichhri, or is Hindustan Zinc Limited?
4. Which rule of liability applies: the rule in Oleum Gas Leak Case or the rule in Rylands v. Fletcher?
5. Who is to pay for the remedial measures, and what directions are needed?

Arguments Contended

For the petitioner (Mr. M.C. Mehta), the Union of India and the State:

• Mr. M.C. Mehta: the record shows the respondents' culpability. They must store the remaining sludge, stop untreated discharge and pay the NEERI-assessed cost of over Rs forty crores.
• Mr. M.C. Mehta: given the repeated violations, the respondents must be closed forthwith.
• Mr. M.C. Mehta relied on M.C. Mehta v. Union of India (Oleum Gas Leak Case) (1987 (1) SCC 395) and on the Court's order in Indian Council for Enviro-Legal Action v. Union of India (1995 (5) SCALE 578). He also cited foreign decisions and text books.
• Mr. Altaf Ahmed, Additional Solicitor General, for the Union: urged appropriate and urgent directions in light of the expert reports.
• Mr. Aruneshwar Gupta for the State of Rajasthan: the State is ready to carry out and enforce such orders as the Court thinks fit.
• Mr. K.B. Rohtagi for the R.P.C.B.: until recently the Board could not close an industry for violations, and after it got the power, it did pass closure orders. It denied malafides and asked for stringent orders.

For the respondents 4 to 8 (Mr. K.N. Bhat):

• The respondents are private bodies, not the State under Article 12. A writ petition under Article 32 does not lie against them.
• The R.P.C.B. was hostile from the beginning. Its reports and reports it obtained are suspect, and the respondents could not cross-examine the experts.
• Hindustan Zinc Limited existed earlier and discharged toxic effluents. Reports made long before 1987 bear this out. Blaming the respondents is incorrect.
• The respondents cooperated. The R.P.C.B. report of 13 November 1992 showed the entombment of sludge was almost over. About 70 industries make H acid, and only the respondents were picked upon.
• Stricter disposal directions were given here than for other units. The Gujarat High Court in Pravinbhai Jashbhai Patel prescribed a less elaborate disposal method.
• Because the 13 November 1992 report showed the whole sludge would be stored within the next two days, the later reports of the Central team, the R.P.C.B. and NEERI cannot be accepted or relied on.
• The reports that sludge is still lying around or leaching are untrue. There is no sludge and no toxic discharge from the Sulphuric Acid Plant. The R.P.C.B. built a temporary Effluent Treatment Plant, and a permanent one was built later.
• The R.P.C.B. case that the units lack the required consents is unsustainable in law and incorrect as a fact. The units were set up before Section 25 of the Water Act was amended, so no prior consent was needed.
• The remedy is a judicial enquiry by a sitting High Court Judge. The respondents will bear the cost of any damage they caused, but the R.P.C.B. should compensate their losses.
• Oleum Gas Leak was explained by Ranganath Misra, C.J. in Union Carbide Corporation v. Union of India (1991 (4) SCC 584). It is at variance with law in Commonwealth countries, and Rylands v. Fletcher should apply.
• Environment courts should be created by legislation, since writs are not suited to disputed facts and technical issues.

Court's Reasoning

The judgment is by Jeevan Reddy, J. for the Bench of B.P. Jeevan Reddy and B.N. Kirpal, JJ. The judgment has no numbered paragraphs, so each step ends with the judge's name.

Jeevan Reddy, J. (for the Bench)

Opening remarks

1. Noted: The petition, by an environmentalist organisation, shows the woes of people near chemical plants. It also shows disregard for law by some entrepreneurs who take advantage of the need for industrialisation and export earnings. (Jeevan Reddy, J.)
2. Noted: The Court speaks strongly about the deep hurt the hearing caused. It asks whether systemic defects let disregard of law pay. (Jeevan Reddy, J.)
3. Noted: The Court assumes that Silver Chemicals and Jyoti Chemicals have stopped H acid production since January 1989. The consequences remain in the sludge and the damage to earth, water, people, cattle and the village economy. (Jeevan Reddy, J.)
4. Noted: The Court does not refer to the interim NEERI report, but to the final report. It does not need the contents of the 1990 and 1991 orders. (Jeevan Reddy, J.)
5. Noted: After 1990 the respondents did not comply with the direction to store the sludge safely. De-watering of the wells was not possible. The respondents and the authorities blamed each other. (Jeevan Reddy, J.)

The expert reports

1. Noted: The Court records the November 1993 report, which concluded beyond doubt that the sludge in the entombed pit was contaminated and that ground water was contaminated by H acid effluent and sludge leachates. (Jeevan Reddy, J.)
2. Noted: The 1993 site observations included old sludge, contaminated soil under a levelled site, and effluent of acidic quality passing through the sludge dump. (Jeevan Reddy, J.)
3. Noted: The Court remarks on the respondents' waste disposal and continuing conduct with irony. The R.P.C.B. report of 30 October 1993 is to the same effect. (Jeevan Reddy, J.)
4. Noted: The R.P.C.B. closed the Sulphuric Acid Plant and the solvent extraction plant, and cut off their electricity. Respondent No. 4 said this was done in malafide haste, and that sudden closure could cause an explosion. (Jeevan Reddy, J.)
5. Noted: On 7 March 1994 the Court found some justification in the industry's claim that the Board's counter-affidavits were self-contradictory. It asked the Board to adopt a constructive attitude. (Jeevan Reddy, J.)
6. Noted: The 8 April 1994 consent order required a deposit of Rs 60,000 and a temporary tank for ten days of effluent. The tank was completed on 26 April 1994. The matter then lay dormant until 13 October 1995. (Jeevan Reddy, J.)
7. Noted: The NEERI report says H acid produces gypsum sludge (about 6 tonnes per tonne) and iron sludge (about 0.5 tonnes per tonne). It also produces about 20 cubic metres of corrosive mother liquor per tonne, plus about 2.0 cubic metres of wash water. (Jeevan Reddy, J.)
8. Noted: NEERI says the mother liquor has low pH (around 2.0) and 80 to 280 g/L of dissolved solids. Its chemical oxygen demand is high (90 g/L) because of organics formed in manufacture, such as naphthalene trisulphonic acid, nitro naphthalene sulphonic acid, Koch acid and H acid. (Jeevan Reddy, J.)
9. Noted: NEERI records that only 720 MT of the sludge was entombed, because the industry's tanks held only that much. Subsurface soil at dump sites was contaminated, and other plants' acidic waste water leached the abandoned dump site. (Jeevan Reddy, J.)
10. Noted: NEERI records damage to crops and trees, soil contamination near a primary school, and 350 hectares that are ecologically fragile. It suggests a green belt at the expense of Hindustan Agrochemicals. (Jeevan Reddy, J.)
11. Noted: The NEERI report is titled Restoration of Environmental Quality of the affected area surrounding Village Bichhri due to past Waste Disposal Activities. It rests on a study from November 1992 to February 1994. It says some wells were contaminated and others were not, and that six dump sites lay outside the plant. Most sludge from outside sites was brought back to a covered shed, but sludge-mixed soil still lay in a primary school's premises. (Jeevan Reddy, J.)
12. Noted: NEERI suggests remedial measures. These include land treatment, soil washing, revegetation, controlling contaminated water flow, leaching of salts, agroforestry, and ground water decontamination by bioremediation. (Jeevan Reddy, J.)
13. Noted: NEERI records that the industry gave no adequate effluent treatment, and produced chlorosulfonic acid without site clearance or consent. It says management showed scant respect for the pollution and environment protection Acts. (Jeevan Reddy, J.)
14. Noted: NEERI records that the industry made chlorosulfonic acid for a few months in late 1992 and floated public shares for it. The R.P.C.B. stopped it in December 1992 for want of site clearance, NOC and consent. NEERI says closure is warranted until an effluent treatment plant is installed and certified by the R.P.C.B. under the Water Act. (Jeevan Reddy, J.)
15. Noted: NEERI calls the indiscriminate and willful disposal of untreated acidic waste water an aggravation of the problem. The acid leaches pollutants from the dumped sludge and soil, and raises sulphates and dissolved solids in ground water. It says the industry should close until an effluent treatment plant is installed and certified. (Jeevan Reddy, J.)
16. Held: The Court finds that the NEERI report needs no emphasis. It speaks for itself and speaks volumes of the respondents' regard for law. (Jeevan Reddy, J.)
17. Noted: NEERI suggests the Polluter Pays principle apply, and works out Rs 342.8 lakhs for villagers and Rs 3738.5 lakhs for remediation. It relies on the doctrine of strict or absolute liability applied to Sri Ram Food and Fertilizers in the Oleum leak of 1985. (Jeevan Reddy, J.)
18. Noted: NEERI says the villagers suffered psychological and mental torture. It recommends Polluter Pays because the incident involved deliberate release of untreated acidic process waste water and negligent handling of waste sludge, knowing fully the implication of such acts. It proposes compensation under two heads: losses due to damage, and the cost of restoring environmental quality. (Jeevan Reddy, J.)
19. Noted: The Court called for a fresh R.P.C.B. report in January 1996 on four points. These were whether the factories still work, whether respondent No. 4 works, how much sludge remains, and the water in wells and tanks. (Jeevan Reddy, J.)
20. Noted: Mr. Bhat said the R.P.C.B. was hostile and the respondents had no chance to contest the fresh report. The Court noted that the dates in the fourth respondent's letter differ from its earlier counters. (Jeevan Reddy, J.)

The statutory provisions

1. Noted: Article 48A directs the State to protect and improve the environment and safeguard forests and wildlife. Article 51A(g) makes it a citizen's duty to protect and improve the natural environment and have compassion for living creatures. (Jeevan Reddy, J.)
2. Noted: The Water Act, 1974 was made after a committee in 1962 and a Central Council discussion in 1963. It rests on resolutions of State Legislatures under Article 252, since Entry 17 read with Entry 6 of List II is a State subject. It is stated that Rajasthan passed the resolution. (Jeevan Reddy, J.)
3. Noted: Section 24(1) of the Water Act bars entry of poisonous, noxious or polluting matter into a stream or well. The old Section 25(1) needed consent for a new or altered outlet or new discharge. (Jeevan Reddy, J.)
4. Noted: The amended Section 25 needs consent to establish an industry likely to discharge trade effluent. It is stated that Rajasthan adopted the amendment by a notification of 9 May 1990. (Jeevan Reddy, J.)
5. Noted: Section 33 lets the Board apply to a court to restrain pollution. Section 33A, added by Act 53 of 1988, lets the Board close an industry and stop electricity and water. Before 1988 the Board could only recommend closure. The Air Act, 1981 has similar provisions. (Jeevan Reddy, J.)
6. Noted: The Environment (Protection) Act, 1986 defines environment to include water, air and land and their inter-relationship with living beings, plants, micro-organisms and property. It follows the Stockholm Conference of June 1972. (Jeevan Reddy, J.)
7. Noted: Section 3 lets the Central Government take all measures it considers necessary to protect and improve the environment. Section 5 lets it issue directions, Section 6 gives rule-making power, and Section 7 bars discharge above prescribed standards. (Jeevan Reddy, J.)
8. Noted: The Central Government made the Hazardous Wastes (Management and Handling) Rules, 1989 on the collection, treatment, storage and disposal of hazardous wastes. (Jeevan Reddy, J.)

Answer to the objections

1. Held: The petition is not for a writ against the respondents. It is against the Union, the State and the R.P.C.B., to make them perform their statutory duties. Their failure undermines the right to life under Article 21. (Jeevan Reddy, J.)
2. Held: If the authorities have not acted and the inaction jeopardises the right to life, "it is the duty of this Court to intervene". If respondents flout the law and orders, the Court can direct compliance. (Jeevan Reddy, J.)
3. Held: This is a social action litigation for the villagers of Bichhri, whose right to life is invaded. The answer to the question whether the Court has no power to intervene is self-evident. (Jeevan Reddy, J.)
4. Held: The R.P.C.B. was bound to act when the respondents flouted safety norms. Repeated violations call for repeated orders, which is no proof of hostility. Its reports are corroborated by the central experts and NEERI. (Jeevan Reddy, J.)
5. Held: Calling the NEERI report suspect is unfair and uncharitable to its officials. The Court asked NEERI for remedial measures, and the reports were relied on for years. (Jeevan Reddy, J.)
6. Held: The objection about cross-examination comes too late, after several years. It was never said earlier that the reports could not be used without cross-examination. The experts are independent. (Jeevan Reddy, J.)
7. Held: Hindustan Zinc Limited may have polluted elsewhere, but that is not the issue. No report says it polluted Bichhri, and its discharges affect villages downstream. Any such pollution can be the subject of a separate proceeding. (Jeevan Reddy, J.)

The affidavit of 13 November 1992 and the finding of responsibility

1. Noted: Mr. Bhat relied on clause 2(b) of the R.P.C.B. affidavit of 13 November 1992, which said the remaining work would be done by 15 November 1992. (Jeevan Reddy, J.)
2. Held: The sentence refers to sealing the six tanks holding 720 MT. It does not show that the remaining 1,700 MT was stored. Mr. Bhat could not say where, by whom or when it was stored. (Jeevan Reddy, J.)
3. Held: The reports from 1993 show huge quantities of sludge in mounds, in depressions or spread and covered with soil. The other part of the waste, the mother liquor, has flowed out or percolated into the soil. (Jeevan Reddy, J.)
4. Held: The analysis report of 1 November 1993 clearly shows the respondents' responsibility for the wells, soil and aquifers. Several orders rest on that finding. (Jeevan Reddy, J.)
5. Held: Disclaiming responsibility now is an afterthought. The Court holds and affirms that the respondents alone are responsible for the damage to the soil, the water and Bichhri village. (Jeevan Reddy, J.)
6. Held: It is the absolute responsibility of the respondents to store the remaining sludge as the 720 MT was stored. They must also stop further toxic discharge and ensure waste does not flow through the sludge. (Jeevan Reddy, J.)

Liability: the Oleum Gas Leak rule

1. Noted: The Constitution Bench in the Oleum Gas Leak Case held that an enterprise in a hazardous or inherently dangerous industry owes an "absolute and non-delegable duty to the community". (Jeevan Reddy, J.)
2. Noted: It said the enterprise must run the activity at the highest safety standards. If harm results, it is absolutely liable, and it is no answer that it took all reasonable care. Where harm results from an accident in such an activity, for example an escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those affected. (Jeevan Reddy, J.)
3. Noted: The Bench said such an activity for private profit can be tolerated only if the enterprise indemnifies all who suffer. The liability is not subject to the exceptions in Rylands v. Fletcher. Compensation must match the enterprise's size and capacity, so as to deter. (Jeevan Reddy, J.)
4. Noted: The Oleum Bench said harmed persons cannot isolate the process or substance that caused the harm, so the enterprise is strictly liable as a part of the social cost of the activity. It said the law must presume that permission to run the activity for profit is conditional on the enterprise absorbing the cost of any accident as an item of its overheads. (Jeevan Reddy, J.)
5. Noted: Mr. Bhat said the industry in that case was not decided to be the State under Article 12 and no compensation was awarded. He relied on Ranganath Misra, C.J. in Union Carbide Corporation (1991 (4) SCC 584), in the fourteenth and fifteenth paragraphs of that opinion. (Jeevan Reddy, J.)
6. Noted: Those paragraphs say the Oleum observations were essentially obiter and are perhaps a good guideline for compensation. They note that the statement departs from Rylands v. Fletcher, and that Bhagwati, C.J. said his view departs from Western law. (Jeevan Reddy, J.)
7. Noted: In paragraph 14 the Chief Justice said no compensation was awarded in Oleum because Shriram was not held to be the State under Article 12, so it was not subject to Article 21 and Article 32. In paragraph 15 he said no binding precedent from the American Supreme Court was shown applying the Oleum ratio. (Jeevan Reddy, J.)
8. Noted: The majority judgment of M.N. Venkatachaliah, J. in Union Carbide expressed no opinion on this issue. (Jeevan Reddy, J.)
9. Held: The Court finds it difficult to say that the law in Oleum Gas Leak Case is obiter. It was not unnecessary for that case, and the Bench directed parties to sue on the law declared. (Jeevan Reddy, J.)
10. Held: A footnote distinguishes the two cases. Oleum was not a case of an industry run contrary to law, or of orders violated with impunity. Here there is clear violation of law and disobedience of the Court's orders. (Jeevan Reddy, J.)
11. Held: Even if it is assumed, for the sake of argument, that the Court cannot award damages against the respondents in these proceedings, it can direct the Central Government to fix and recover the cost of remedial measures. (Jeevan Reddy, J.)
12. Noted: The footnote adds that the Court must ensure observance of law and of its own orders. It leaves open whether the Court can award damages against private parties as part of relief against public authorities, for lack of a full debate. (Jeevan Reddy, J.)
13. Noted: The footnote says the Court has to ensure observance of law and of its own orders as part of enforcing fundamental rights, and that this power cannot be disputed. It asks why the Court is then not competent to make orders needed for full and effective implementation of its orders, including imposing and recovering the cost of all measures, including remedial measures. It adds that if the Central Government omits its duty under Sections 3 and 5, the Court can issue directions to it. (Jeevan Reddy, J.)
14. Held: Section 3 of the Environment (Protection) Act lets the Central Government take necessary measures, and Section 5 lets it give directions. With the wide definition in Section 2(a), these include removing sludge, taking remedial measures and imposing their cost on the offending industry. (Jeevan Reddy, J.)
15. Held: The Court can direct the Central Government to take such measures. It did so in Indian Council for Enviro-Legal Action (1995 (5) SCALE 578), where the Court said the State had to ensure recovery from the industries that polluted Nakkavagu. So the objection is more of form. (Jeevan Reddy, J.)

Rylands v. Fletcher and the rule to apply

1. Held: Mr. Bhat's argument for the rule in Rylands v. Fletcher fails first because Oleum Gas Leak binds the Court and refused to apply Rylands as unsuited to Indian conditions. (Jeevan Reddy, J.)
2. Noted: Blackburn, J. stated the rule in Rylands v. Fletcher ((1866) 3 H.L. 330). The person who keeps on his land anything likely to do mischief if it escapes must keep it at his peril. He is prima facie answerable for the natural consequence of its escape. (Jeevan Reddy, J.)
3. Noted: Blackburn, J. of the Court of Exchequer Chamber added that the defendant may excuse himself by showing the escape was due to the plaintiff's default, vis major or the act of God. He said it is reasonable that a neighbour who brings on his land something not naturally there, which he knows to be mischievous if it escapes, should make good the damage. (Jeevan Reddy, J.)
4. Noted: The House of Lords added a rider that the user must be non-natural. The twin tests are foreseeability and non-natural user. (Jeevan Reddy, J.)
5. Noted: In Cambridge Water Company v. Eastern Counties Leather PLC ([1994] 2 WLR 53), the House of Lords approved the rule. The tannery used P.C.E. that percolated and contaminated the plaintiff's borehole. The Lords held that foreseeability of harm was a prerequisite under nuisance and Rylands. The plaintiff failed for that reason. (Jeevan Reddy, J.)
6. Noted: In that case the plaintiff was a statutory corporation supplying public water from a bore well near Sawston (Sawstyn in the source). The defendant tannery stored PCE in a tank for degreasing pelts. The claim rested on negligence, nuisance and Rylands. The trial judge dismissed negligence and nuisance for want of foreseeability and held the use was not non-natural. The Court of Appeal declined to decide on Rylands, relied on Ballard v. Tomlinson and held the use was not natural. The House of Lords held the use non-natural, but the plaintiff failed for want of foreseeability. (Jeevan Reddy, J.)
7. Noted: The Court of Appeal in that case had relied on Ballard v. Tomlinson ((1885) 29 Ch.D. 115), which says no person may contaminate a common source. (Jeevan Reddy, J.)
8. Noted: In Burnie Port Authority v. General Jones Pty Ltd ((1994) 68 ALJ 331), the Australian High Court, by majority, absorbed Rylands into the principles of ordinary negligence. It held that the Authority owed a non-delegable duty of care regarding a dangerous activity by its contractor. (Jeevan Reddy, J.)
9. Noted: General Jones stored frozen vegetables in cold rooms in the Authority's building. The extension work was partly done by an independent contractor (Wildridge and Sinclair Pty Ltd), who used a highly inflammable insulating material called E.P.S. Negligent handling caused a fire. The Australian High Court held that a person who introduces a dangerous substance or activity owes a duty of reasonable care, which varies with the magnitude of the risk. The Authority owed a non-delegable duty to see that the contractor took reasonable steps. (Jeevan Reddy, J.)
10. Held: Any principle should be simple, practical and suited to conditions in India. The law in Oleum Gas Leak Case is by far the more appropriate, apart from being binding. (Jeevan Reddy, J.)
11. Held: Under that rule, once the activity is hazardous or inherently dangerous, the person carrying it on is liable to make good the loss caused to any other person, whether or not he took reasonable care. The rule rests on the nature of the activity. (Jeevan Reddy, J.)
12. Noted: The reason is that the enterprise alone has the resources to discover and guard against dangers. The affected person cannot easily prove absence of reasonable care or foreseeability. (Jeevan Reddy, J.)
13. Held: So respondents 4 to 8 are absolutely liable to compensate for the harm to the villagers, the soil and the underground water. They must remove the sludge and other pollutants in the affected area of about 350 hectares. They must also pay the cost of remedial measures. (Jeevan Reddy, J.)
14. Held: Sections 3 and 4 (the source's reference) of the Environment (Protection) Act give the Central Government power to give such directions. Levy of costs is implicit in them. The Court can direct the Central Government to use those powers. (Jeevan Reddy, J.)

The Polluter Pays principle

1. Noted: The Court quotes a passage from Carolyn Shelbourn in the Journal of Planning and Environmental Law (August 1974 issue). It says the costs of preventing or remedying pollution damage lie with the undertakings that cause it. (Jeevan Reddy, J.)
2. Noted: It adds that government should not meet those costs, since that would shift the burden to the taxpayer. The OECD promoted the principle during the 1970s. (Jeevan Reddy, J.)
3. Noted: The European Community accepted it as a fundamental part of its environmental strategy. The Fourth Action Programme says the costs of preventing and eliminating nuisances must be borne by the polluter. (Jeevan Reddy, J.)
4. Noted: The principle was added to the European Community Treaty through the Single European Act of 1986. Article 130R(2) bases action on prevention, rectification at source, and that the polluter should pay. (Jeevan Reddy, J.)
5. Held: By this principle, responsibility for repairing the damage is that of the offending industry. Sections 3 and 5 empower the Central Government to give directions to give effect to it. (Jeevan Reddy, J.)
6. Held: The task of fixing the amount, recovering it and carrying out remedial measures is placed on the Central Government. It may take help from the State Government, the R.P.C.B. or other agencies. (Jeevan Reddy, J.)

Amount of the remedial cost

1. Noted: NEERI put the cost of repair at over Rs forty crores. (Jeevan Reddy, J.)
2. Held: The estimate of cost is not a technical matter within NEERI's expertise. It was made in 1994, and the situation must have got worse. An estimate should be made now, with notice to the respondents. The aim is to restore water and soil to the condition before the respondents began. The situation must have worsened because they were also discharging toxic effluents from their other plants, as NEERI and the central team reported. The amount is to be paid to the Central Government or recovered from the respondents by it. (Jeevan Reddy, J.)

Conclusions

1. Held: Silver Chemicals and Jyoti Chemicals made about 375 MT of H acid in 1988-89. This gave about 8,250 cubic metres of waste water and 2,440 tonnes of sludge. About 720 tonnes are stored, and the rest is within or outside the complex. The story of entombing all the sludge is untrue. (Jeevan Reddy, J.)
2. Held: The units started without clearances, consents or licences. They installed no equipment to treat toxic effluents. They continued after the R.P.C.B. closure orders. They did not obey the Court's orders or their undertakings, and their conduct shows contempt for law and the courts. (Jeevan Reddy, J.)
3. Held: Even after H acid stopped, respondent No. 4 did not treat the toxic waste water from the Sulphuric Acid Plant. It flowed through the sludge. The Court expresses no opinion on a permanent Effluent Treatment Plant, which even if true applies only after April 1994. (Jeevan Reddy, J.)
4. Held: The damage is undescribable. It caused untold misery and long-lasting damage to soil, water and the environment. NEERI's sketch at Page 178 divides the affected area into three zones by extent of contamination. About 350 hectares are seriously contaminated, and the wells are unfit for humans and cattle. NEERI says over Rs forty crores is needed. (Jeevan Reddy, J.)
5. Held: The Court has repeatedly found that respondents caused the damage. The analysis reports establish that the pollution of the wells is from the wastes of respondents 4 to 8. (Jeevan Reddy, J.)
6. Held: Sections 3 and 5 of the Environment (Protection) Act, with the Water and Air Acts, let the Government take all necessary measures. This includes prohibiting an activity, closing an industry, carrying out remedial measures and imposing their cost on the offending industry. (Jeevan Reddy, J.)
7. Held: The principle of Polluter Pays "has gained almost universal recognition", and the Oleum Gas Leak rule states it in absolute terms. The law declared in Oleum Gas Leak governs this case. (Jeevan Reddy, J.)

Directions, environment courts and costs

1. Held: The Court makes the directions in the Judgement below. (Jeevan Reddy, J.)
2. Held: The respondents' continuous and persistent violations, concealment of sludge, toxic discharge and disobedience of orders earned them the dubious distinction of being "rogue industries". They have forfeited all claims to consideration by the Court. (Jeevan Reddy, J.)
3. Held: The suggestion for environment courts is commendable. Prosecutions in ordinary criminal courts never reach conclusion, and industries challenge the authorities' orders for years, often with interim orders. (Jeevan Reddy, J.)
4. Held: Environment courts should be manned by legally trained persons and adopt summary procedures. The issue needs study in depth from all angles before action. (Jeevan Reddy, J.)
5. Held: The petitioner fought the litigation for over six years on its own means. Voluntary bodies like it deserve encouragement where their actions further the public interest, and so costs are awarded. (Jeevan Reddy, J.)

Authorities

• M.C. Mehta v. Union of India (Oleum Gas Leak Case) (1987 (1) SCC 395): a Constitution Bench held that an enterprise in a hazardous or inherently dangerous activity is absolutely liable for the harm. Followed and held not obiter (Jeevan Reddy, J.).
• Indian Council for Enviro-Legal Action v. Union of India (1995 (5) SCALE 578): the earlier order directing the State to recover compensation from the polluting industries. Followed (Jeevan Reddy, J.).
• Union Carbide Corporation v. Union of India (1991 (4) SCC 584): Ranganath Misra, C.J. called the Oleum statement essentially obiter. The Court disagreed (Jeevan Reddy, J.).
• Pravinbhai Jashbhai Patel v. State of Gujarat (1995 (2) G.L.R. 1210): a Gujarat High Court decision on H acid units, cited by respondents on the method of disposal. Noted (Jeevan Reddy, J.).
• Rylands v. Fletcher ((1866) 3 H.L. 330): the rule of strict liability for non-natural user. Not accepted for India (Jeevan Reddy, J.).
• Cambridge Water Company v. Eastern Counties Leather PLC ([1994] 2 WLR 53): House of Lords approved Rylands, requiring foreseeability. Noted (Jeevan Reddy, J.).
• Ballard v. Tomlinson ((1885) 29 Ch.D. 115): no person may contaminate a common source. Noted as relied on by the Court of Appeal (Jeevan Reddy, J.).
• Burnie Port Authority v. General Jones Pty Ltd ((1994) 68 Australian Law Journal 331): the Australian High Court absorbed Rylands into negligence. Noted and not followed (Jeevan Reddy, J.).
• Other sources: Carolyn Shelbourn, Historic Pollution - Does the Polluter Pay? (Journal of Planning and Environmental Law, August 1974); the NEERI report; reports of the R.P.C.B. and central experts.
• Names as spelt in the source text: Ryland v. Fletcher (in the Oleum extract); Indian Council for Enviro-Legel Action v. Union of India (in the counsel's citation); Pravinbhai Jashbhai & Ors. v. State of Gujarat & Anr.; Union Carbide Corporation v. Union of India; Indian Council For Enviro-Legal Action v. Union Of India And Ors.Etc (the case title).

Provisions mentioned

• Article 12, Constitution: definition of State, on which respondents rested their objection.
• Article 226, Constitution: the High Court's writ power, which counsel said is also unsuited to such matters.
• Article 21 and Article 32, Constitution: right to life; the writ remedy in this Court.
• Article 48A and Article 51A(g), Constitution: State duty and citizen's duty to protect the environment.
• Article 252, Constitution; Entry 17 read with Entry 6 of List II: Parliament's law for States on their resolution.
• Section 24(1), Section 25(1), Section 33 and Section 33A, Water (Prevention and Control of Pollution) Act, 1974: bar on polluting discharge; consent for outlets and industries; court restraint; power of closure (Act 53 of 1988).
• Air (Prevention and Control of Pollution) Act, 1981: similar provisions.
• Section 2(a), Section 3, Section 5, Section 6 and Section 7, Environment (Protection) Act, 1986: definition of environment; measures; directions; rules; standards for discharge.
• Section 4, Environment (Protection) Act, 1986: named in the judgment with Section 3 as giving power to impose the costs of remedial measures.
• Hazardous Wastes (Management and Handling) Rules, 1989: rules on collecting, treating, storing and disposing of hazardous wastes.
• Manufacture, Storage and Import of Hazardous Chemical Rules, 1989: the notification under which chlorosulfonic acid is hazardous.
• Section 144, Code of Criminal Procedure: imposed by the District Magistrate.
• Industries (Development and Regulation) Act, 1951: producing before an industrial licence is an offence.

Judgement

1. The Central Government must determine the amount required for remedial measures, including removal of sludge, in the affected area of Bichhri and adjacent villages. The measures arise from the production of H acid and the discharges from the Sulphuric Acid Plant of respondents 4 to 8. Chapters VI and VII of the NEERI report are deemed the show-cause notice.
2. Respondents 4 to 8 must submit their explanation and material to the Secretary, MoEF, within six weeks of the judgment. The Secretary must determine the amount in consultation with experts within six weeks after that. The order must be communicated to respondents 4 to 8 and all concerned, and placed before this Court. Subject to any orders of this Court, that amount is what they are liable to pay to improve and restore the environment.
3. The affected area is taken as 350 hectares, as in the sketch at Page 178 of the NEERI report. If the respondents do not pay, the Central Government must recover the amount in accordance with law. Their factories, plant, machinery and immovable assets are attached.
4. MoEF must use the amount to restore the soil, water sources and environment of the area.
5. All plants and factories of respondents 4 to 8 in Bichhri are ordered closed. The R.P.C.B. must seal them at once. The Sulphuric Acid Plant closes and is sealed after one week, during which respondent No. 4 must wind down its operations to avoid untoward consequences. It is respondent No. 4's responsibility to take the necessary steps.
6. Reopening depends on compliance with the directions and on obtaining all permissions and consents. Respondents may apply for directions after compliance.
7. Villagers, or an organisation on their behalf, may sue for damages in the appropriate civil court. If they sue in forma pauperis, the State of Rajasthan must not oppose the leave applications.
8. The Central Government must consider treating chemical industries as a category apart, with no distinction by size. It must examine the establishment of water-intensive industries in arid areas, and may study existing industries. It may give directions under Sections 3 and 5 of the Environment Act and ensure they are implemented forthwith.
9. The Central Government and the R.P.C.B. must file quarterly reports on the progress of the judgment's Directions 1 to 4 (items 1 to 8 above).
10. The suggestion for environment courts is commended. Such courts should deal with all civil and criminal matters on the environment, with legally trained persons and summary procedures. The issue needs study in depth before action.
11. The Central Government may consider giving the environment protection machinery, at the Centre and in the States, more teeth. Heads of units and agencies should be made personally accountable for lapses or negligence.
12. The Central Government may consider environmental audits by permanent specialist bodies with power to inspect and act against erring industries and officers. It may also consider periodic audits certified annually by recognised specialists. The aim is to integrate and balance concern for the environment with industrialisation and technological progress.
13. Respondents 4 to 8 must pay Rs 50,000 costs to the petitioner, deposited in this Court within two weeks, and paid to the petitioner.
14. Writ Petition (C) No. 967 of 1989 is allowed with these directions.
15. Writ Petition (C) No. 76 of 1994 is dismissed, with no costs.
16. Writ Petitions (C) No. 94 of 1990 and No. 824 of 1993 are dismissed, with no separate orders and no costs.

Legal Principle / Ratio

An enterprise carrying on a hazardous or inherently dangerous activity is absolutely liable for harm it causes, and the law of Oleum Gas Leak Case governs India. The Polluter Pays principle puts the cost of repairing environmental damage on the offending industry, and the Central Government may recover it under Sections 3 and 5 of the Environment (Protection) Act. The Court held the person is liable "irrespective of the fact whether he took reasonable care while carrying on his activity".

Critical Analysis

Analysis based on the judgment text.

The Court used the Central Government's powers instead of awarding damages. It left open whether it can award damages against private parties in an Article 32 petition, and said it lacked a full debate. It then directed the Central Government to recover the cost under Sections 3 and 5.

Villagers' losses are left to suits. The NEERI report estimates Rs 342.8 lakhs as the damages to villagers. The judgment directs the cost of restoration to be recovered, and tells villagers to sue for their own damages.

The Court did not decide the Article 12 question. It said the petition is against the authorities, and so did not decide whether the private respondents are the State.

Significance

• The Court confirmed the absolute liability rule from the Oleum Gas Leak Case, and rejected the rule in Rylands v. Fletcher for India.
• It applied the Polluter Pays principle and said the Central Government may impose the cost of remedial measures on the offending industry.
• It ordered the closure of the plants of respondents 4 to 8 and attached their assets.
• It commended the idea of environment courts and asked the Central Government to consider treating chemical industries as a category apart.

Exam-Important Points

• Facts in one line: chemical units in Bichhri made H acid and left toxic sludge that polluted 350 hectares. The Court applied absolute liability and Polluter Pays.
• Rule: an enterprise in a hazardous activity is absolutely liable, even if it took reasonable care. Rylands v. Fletcher was not accepted.
• Rule: the Polluter Pays principle puts the cost of remedy on the offending industry. Sections 3 and 5 of the Environment (Protection) Act support directions to recover it.
• Trap: the Court disagreed that Oleum Gas Leak is obiter. It did not decide whether it can award damages against private parties.
• Trap: the case was against the authorities to enforce their duty under Article 21. The Court did not decide whether the private respondents are the State.
• Trap: the petition of respondent No. 4 (Writ Petition No. 76 of 1994) was dismissed.
• Directions: closure of the plants, attachment of assets, quarterly reports, and villagers may sue in forma pauperis.
• Costs: Rs 50,000 to the petitioner.

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.