Subhash Kumar v. State of Bihar

Subhash Kumar asked the Supreme Court to stop slurry from coal washeries reaching the Bokaro river. The Court stated that the right to life includes clean water and air. It then dismissed his petition with costs of Rs. 5,000, because it found the petition was filed for his own interest.

Quick Revision

Parties

Subhash Kumar — petitioner. He filed the writ petition under Article 32 as public interest litigation. The Court noted he was an influential businessman with a coal trading licence.

State of Bihar — respondent. It filed a counter-affidavit (a written reply). It was alleged to have taken no action and to have granted leases on royalty for collecting slurry.

Bihar State Pollution Control Board — respondent. It is the State Pollution Control Board under the Water Act. It filed a counter-affidavit.

Director of Collieries, West Bokaro Collieries, Ghatotand — respondent. The petitioner asked for a direction to stop discharge of slurry from its washeries.

Tata Iron and Steel Co. Ltd. (TISCO) — respondent No. 5, named in the judgment. It carries on mining in the West Bokaro coal mines and washeries.

Union of India — respondent. The petitioner sought directions against it along with the others.

Procedural History

1. The petitioner started several proceedings in the High Court of Patna under Article 226 of the Constitution to be allowed to collect slurry from Raiyati land. These petitions were dismissed because the title to the land was disputed.
2. The petitioner filed C.W.J.C. No. 887 of 1990 in the Patna High Court. He asked for action against the Deputy Commissioner, Hazaribagh, to implement the Full Bench judgment in Kundori Labours Co-operative Society Ltd. v. State of Bihar, AIR 1986 Patna 242.
3. The Full Bench of the Patna High Court had held that slurry was neither coal nor mineral but an industrial waste of the coal mine. It held that the Mines and Minerals (Regulation and Development) Act, 1957 did not apply. The State Government could therefore settle collection of slurry with any person without the Central Government's sanction.
4. TISCO appealed to the Supreme Court. While that appeal was pending, the petitioner filed the present petition.
5. The appeal by TISCO and Bharat Coking Coal Ltd. was allowed and the Patna High Court judgment was set aside. This Court held that slurry deposited on land continues to be coal, and the State Government has no authority to deal with it. It also held that slurry on the company's land belongs to the company (reported in Judgments Today vol. 3, 1990 SC 533).
6. The present petition was filed under Article 32 in the Supreme Court's original jurisdiction. It is numbered Writ Petition (C) No. 381 of 1998 in the judgment.
7. Counsel: S.K. Sinha for the petitioner; D. Goburdhan, Ms. A. Subhashini, K.K. Lahiri, Ms. Lira Goswami and D.N. Misra for the respondents.
8. The Court heard arguments on 13 December 1990 and dismissed the petition with costs of Rs. 5,000. It said its reasons would be delivered later.
9. The reasons were delivered on 9 January 1991 by Singh J. for the Court. The headnote records the order as petitions dismissed.

Facts

1. Parliament enacted the Water (Prevention and Control of Pollution) Act, 1974. It provides for preventing and controlling water pollution. It also provides for maintaining or restoring wholesomeness of water and for setting up Boards.
2. TISCO carries on mining in coal mines and washeries in the West Bokaro Collieries. There are two coal washeries.
3. Coal from the mines is broken into graded pieces. It is then processed to reduce its ash content by the froth floatation process.
4. In this process graded coal is mixed with diesel oil, pine oil and other chemicals, and washed with lakhs of gallons of water. The washed coal with less ash is fit for high-grade metallurgical use in steel making.
5. The water used in washing is carried by pipes to storage ponds built to hold the slurry. Small coal particles settle in the pond. They are collected after the pond is de-watered.
6. The slurry is ash-free and contains fine coal. It is used as fuel.
7. The petitioner alleged that surplus waste, as sludge or slurry, is discharged as effluent from the washeries into the Bokaro river. It settles in the river bed and on land, including his Plot No. 170.
8. He alleged that slurry absorbed by agricultural land leaves a fine carbonaceous film on the soil and harms its fertility.
9. He alleged that the river water carries the slurry to distant places. He said the water was unfit for drinking and for irrigation.
10. He alleged that continuous heavy discharge risked the health of people living nearby. He said the problem of pure drinking water had become acute.
11. He said that despite several representations the State of Bihar and the State Pollution Control Board took no action against the company and allowed the pollution.
12. He said the State of Bihar granted leases on payment of royalty to various persons for collecting slurry, instead of acting against the company.
13. He sought directions to the State of Bihar, the Bihar Pollution Control Board, the Union of India and TISCO to take immediate steps to stop the pollution. He also sought action against TISCO under the Water Act.
14. In an interim application he asked to be permitted to hold back or collect the sludge or slurry flowing out of the washeries. He asked for a direction that the State and its officers must not stop him collecting and transporting it.
15. The petitioner had been buying slurry from respondents Nos. 4 and 5 for several years. With time he wanted more, but the company refused.
16. The petitioner is an influential businessman with a coal trading licence. He tried to put pressure on the company through various sources, and when it did not give in he began harassing it.
17. He removed the company's slurry in an unauthorised manner. Criminal Case No. 173 of 1987 was registered against him and his brother Pradip Kumar at Police Station Mandu. It is under Sections 379 and 411 of the Indian Penal Code, read with Section 7 of the Essential Commodities Act. It is pending before the Sub-Judge, Hazaribagh.
18. Jugal Kishore Jayaswal filed a criminal complaint under Sections 379 and 411 of the Indian Penal Code against the petitioner and Pradip Kumar before the Judicial Magistrate, First Class, Hazaribagh. It is pending before the Judicial Magistrate, 2nd Class, Hazaribagh.
19. The State Pollution Control Board inspected the settling tanks on 20 June 1988 after receiving notice of this petition. All four settling tanks were complete, and work to strengthen the embankments was going on.
20. At that inspection there was no discharge of effluent from the washeries into the Bokaro river, except negligible seepage from the embankment.

Issues Raised

1. Does the right to life under Article 21 include the right to enjoy pollution-free water and air, so that a citizen may use Article 32 to have pollution removed?
2. Who may bring a petition under Article 32 for preventing pollution, and in what circumstances is it maintainable?
3. Was the water of the Bokaro river being polluted by slurry discharged from the washeries of the respondent company?
4. Was this petition filed in public interest, or in the petitioner's personal interest, so that entertaining it would abuse the process of the Court?

Arguments Contended

The judgment does not record oral arguments of counsel. The contentions below are taken from the petition and the counter-affidavits that it summarises.

For the petitioner (Subhash Kumar)

1. The slurry and sludge from the washeries are discharged into the Bokaro river and onto land, and pollute the water and reduce the fertility of land.
2. The river water is unfit for drinking and irrigation, and the discharge puts the health of people in surrounding areas at risk.
3. The Water (Prevention and Control of Pollution) Act, 1974 provides for the prevention and control of water pollution. Section 17 sets out the functions of the State Pollution Control Board, including inspection of sewage and trade effluents and laying down standards for discharge.
4. Section 24 of the Act bars any person from knowingly causing or permitting poisonous, noxious or polluting matter to enter a stream or well.
5. Despite representations, the State of Bihar and the State Pollution Control Board failed to act. The State granted leases on royalty for collecting slurry instead.
6. The Court should direct the respondents to stop the pollution and direct action against TISCO under the Act. As interim relief he sought to be allowed to collect the slurry.

For the respondents

1. The State of Bihar, the Pollution Control Board, the Directors of Collieries and TISCO denied the main allegation that slurry is discharged into the river and pollutes water and land.
2. The Board said TISCO runs open-cast and underground mining. In keeping with Sections 25 and 26 of the Act, the company applied for sanction to discharge effluent from its outlets.
3. Before granting sanction the Board analysed the effluent. It was watched constantly and monitored so that discharges would not harm the river water quality.
4. The Board directed the Director of the Collieries to take effective steps to improve the quality of effluent going into the river. It required two settling tanks for settling solids and rewashing them.
5. The Board directed regular sampling and testing for suspended solids, with results sent to the Board every month.
6. The company built four ponds, which gave more storage capacity. The Board monitored the effluent.
7. At the Board's inspection on 20 June 1988 all four settling tanks were complete, embankment strengthening was in progress, and there was no discharge except negligible seepage.
8. The Board directed the collieries to remove settled slurry from the tanks. It directed the washeries to desludge the tanks at regular intervals to keep the retention time needed to separate solids and meet the Board's standards.
9. At present there is no discharge from any tank into the Bokaro river, so there is no question of polluting the river or affecting land fertility.
10. Respondents Nos. 4 and 5 said effective steps were taken to stop discharge from the washeries into the river. The Bokaro river remains dry for 9 months a year, so pollution by slurry does not arise.
11. The slurry is rich in carbon and has almost nil ash. It is very valuable as fuel with a high market value, so the company would not let it flow into the river. It collects the settled slurry for sale.
12. The company has followed the directions of the State Pollution Control Board constituted under the 1974 Act.
13. The counter-affidavit of respondents Nos. 4 and 5 records that the petitioner bought slurry for years. It records that he was refused more and then began harassing the company.

Court's Reasoning

Singh J. (for the Court; Ojha J. on the bench)

The judgment has no numbered paragraphs. Each step below cites the judgment's own blocks, so no paragraph numbers appear.

1. Noted: The Court heard arguments on 13 December 1990, dismissed the petition with costs of Rs. 5,000, and directed that reasons would follow. The present judgment gives those reasons.
2. Noted: The petition is under Article 32. It asks for a writ (a court order) or direction to the Director of Collieries, West Bokaro Collieries at Ghatotand, and TISCO. It must stop at once the discharge of slurry or sludge from their washeries at Ghatotand, District Hazaribagh, into the Bokaro river.
3. Noted: The petition is by way of public interest litigation to prevent pollution of Bokaro river water by sludge or slurry from the washeries.
4. Noted: The Court sets out the petitioner's case as listed in the Facts. It covers the Water Act, the washing process, the alleged damage and the relief sought.
5. Noted: The Court sets out the respondents' counter-affidavits, as listed in the Arguments.
6. Held: The Court looked at the pleadings and the specific averments in the State Pollution Control Board's counter-affidavit. It found prima facie no good reason to accept that the Bokaro river water is polluted by slurry from the respondent company's washeries.
7. Held: The State Pollution Control Board has taken effective steps to check the pollution.
8. Held: The Court did not consider it necessary to go into greater detail. The petition does not appear to have been filed in public interest. It was made in the petitioner's own interest.
9. Noted: From the counter-affidavit of respondents Nos. 4 and 5, the petitioner had been buying slurry from them for several years. When the company refused his request for more, he started harassing it.
10. Noted: He removed the company's slurry in an unauthorised manner. The criminal case and the complaint described in the Facts are pending against him and his brother.
11. Noted: His Article 226 petitions in the Patna High Court were dismissed because title to the land was in dispute. Another petition asked for implementation of the Kundori Full Bench judgment.
12. Noted: He told the High Court that the slurry discharged from the washeries did not belong to the company and that he was entitled to collect it.
13. Noted: The company stopped him collecting slurry from its land and refused to sell him more. He entertained a grudge against the company and took several proceedings against it, including the present one.
14. Held: These facts are apparent from the pleadings and the documents before the Court. There is evidence in the petition itself that its primary purpose is not public interest but self-interest.
15. Why: The petitioner's prayer in the interim application shows this. He asked to be permitted to hold back or collect the slurry flowing out of the washeries and to transport it, with a direction that the State must not prevent him.
16. Held: The interim prayer clearly shows he is interested in collecting and transporting the slurry for his business.
17. Noted: The Patna Full Bench had held that slurry was not coal, that the 1957 Act did not apply, and that the State could settle it with others. On that view TISCO had no right to collect slurry escaping from its washeries.
18. Noted: TISCO appealed. This petition was filed while the appeal was pending. This Court then allowed the appeal of TISCO and Bharat Coking Coal Ltd. and set aside the High Court judgment.
19. Noted: This Court held in that appeal (Judgments Today vol. 3, 1990 SC 533) that deposited slurry remains coal, the State Government cannot deal with it, and it belongs to the company on whose land it lies.
20. Held: Article 32 is designed for enforcement of the Fundamental Rights of a citizen by the Apex Court. It provides an extraordinary procedure to safeguard those rights.
21. Held: The right to live is a fundamental right under Article 21 and "includes the right of enjoyment of pollution free water and air for full enjoyment of life".
22. Held: Suppose anything endangers or impairs that quality of life in derogation of laws. A citizen then has the right to use Article 32 to remove the pollution of water or air that may harm it.
23. Held: A petition under Article 32 for the prevention of pollution is maintainable at the instance of affected persons. It is also maintainable by a group of social workers or journalists.
24. Held: Recourse to Article 32 should be taken by a person genuinely interested in protecting society on behalf of the community.
25. Held: Public interest litigation cannot be invoked by a person or body of persons to satisfy a personal grudge and enmity.
26. Why: If such petitions are entertained, it would amount to abuse of process of the Court. It would also prevent a speedy remedy to other genuine petitioners.
27. Held: "Personal interest cannot be enforced through the process of this Court under Art. 32 of the Constitution" in the disguise of public interest litigation.
28. Noted: Public interest litigation means a legal proceeding to vindicate or enforce the fundamental rights of a group or community. Those persons cannot enforce their rights because of incapacity, poverty or ignorance of law.
29. Held: A person invoking Article 32 must approach the Court to vindicate the fundamental rights of affected persons and "not for the purpose of vindication of his personal grudge or enmity".
30. Held: "It is duty of this Court to discourage such petitions". The Court must ensure that unscrupulous litigants do not obstruct or pollute the course of justice. They do this by using its extraordinary jurisdiction for personal matters in the disguise of public interest litigation.
31. Held: The Court was of the opinion that the petition was filed not in public interest but for the petitioner's personal interest. It dismissed the petition and directed the petitioner to pay Rs. 5,000 as costs to respondents Nos. 3, 4 and 5.

Authorities

• Bandhua Mukti Morcha v. Union of India, [1984] 2 SCR 67 — cited for the rules on Article 32 and public interest litigation stated above.
• Sachindanand Pandey v. State of West Bengal, [1987] 2 SCC 295 (cited in the text as Pandey v. State of West Bengal, at 331) — cited for the same rules.
• Ramsharan Autyanuprasi and another v. Union of India and others, [1989] Suppl. 1 SCC 251 — cited for the same rules.
• Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P. and others, [1990] 4 SCC 449 — cited for the same rules (the headnote spells it Chetriya Pardushan).
• Kundori Labours Co-operative Society Ltd. v. State of Bihar, AIR 1986 Patna 242 — the Full Bench held slurry was an industrial waste, not coal or mineral. It was set aside by this Court in the TISCO appeal.
• Bharat Coking Coal Ltd. v. State of Bihar, [1990] 3 SCR 744 (reported in Judgments Today vol. 3, 1990 SC 533) — this Court held that slurry is coal and belongs to the company on whose land it lies. The Court used it as background to the petitioner's motive.

Provisions mentioned

• Article 21 of the Constitution — the right to life. The Court held that it includes the right to enjoy pollution-free water and air.
• Article 32 — the right to move the Supreme Court to enforce Fundamental Rights. A petition for preventing pollution can be brought under it.
• Article 226 — the High Court's power to issue writs. The petitioner used it in Patna, and those petitions were dismissed because title to land was disputed.
• Section 17 of the Water Act, 1974 — functions of the State Pollution Control Board. They include inspecting sewage and trade effluents and treatment plants, reviewing plans, and laying down standards for discharge.
• Section 24 of the Water Act — no person may knowingly cause or permit poisonous, noxious or polluting matter to enter a stream or well. This applies where it may lead to substantial aggravation of pollution.
• Sections 25 and 26 of the Water Act — the company applied under them for the Board's sanction to discharge effluent from its outlets. The judgment does not set out their text.
• Sections 379 and 411 of the Indian Penal Code, read with Section 7 of the Essential Commodities Act — the charges in Criminal Case No. 173 of 1987 and the Jayaswal complaint. The judgment does not describe their content.
• Mines and Minerals (Regulation and Development) Act, 1957 — held by the Patna Full Bench not to apply to slurry. This Court's later ruling treated slurry as coal.

Judgement

1. The petition under Article 32 is dismissed. The petition was filed in the petitioner's personal interest and not in public interest.
2. The petitioner must pay costs of Rs. 5,000. The costs go to respondents Nos. 3, 4 and 5.
3. The order of dismissal was made on 13 December 1990. The reasons were delivered on 9 January 1991.
4. The Court also found no good reason to accept that the river water is polluted by the washeries. It found that the State Pollution Control Board had taken effective steps to check pollution.

Legal Principle / Ratio

The right to life under Article 21 includes the right to enjoy pollution-free water and air, and a citizen may use Article 32 to have pollution removed. Public interest litigation must be brought by a person genuinely interested in protecting the community. Personal interest cannot be enforced through it.

Key holding: "Personal interest cannot be enforced through the process of this Court under Art. 32 of the Constitution".

Critical Analysis

Analysis based on the judgment text.

• The Court stated the Article 21 principle in general terms. The result turned on the petitioner's motive and not on that principle.
• The Court said prima facie that pollution was not shown, and did not go into detail. It relied on the Board's counter-affidavit. The judgment does not say whether the Court tested those claims independently.
• The Court found the petitioner's motive from the pleadings and the interim prayer. It did not decide the criminal cases against him.
• The judgment does not say whether a petition from a person with mixed motives could succeed if the pollution were proved.

Significance

• The judgment states that the right to life includes the right to enjoy pollution-free water and air, and that Article 32 can be used to remove pollution.
• It states that a petition for preventing pollution is maintainable at the instance of affected persons, social workers or journalists.
• It warns that public interest litigation cannot be used for personal grudge or enmity, and that the Court must discourage such petitions.

Exam-Important Points

• Rule: Article 21 includes the right to enjoy pollution-free water and air. A citizen may invoke Article 32 to have pollution removed.
• Who may sue: affected persons, or a group of social workers or journalists. The person must be genuinely interested in the protection of society.
• Limit: public interest litigation cannot be used to satisfy a personal grudge or enmity. Doing so is an abuse of process.
• Outcome: the petition was dismissed with costs of Rs. 5,000. The petitioner lost, even though the principle favoured citizens.
• Facts to remember: the petitioner was a buyer of slurry whose request for more was refused. He faced criminal cases for removing slurry without authority.
• Trap: although the Court affirmed the right, it granted no relief. It found the Board's steps effective.
• Trap: the judgment has no numbered paragraphs, so cite the case by its holding and not by paragraph.

Prepared from the full text of the judgment. The judgment has no numbered paragraphs.