Author: Jayapriya .A, Chennai Dr.Ambedkar Government Law College , Pudupakkam
INTRODUCTION:
There is an significant question lies around the decade i,e., environmental protection or global development : which is most required? All the industries will emit some sort of pollution which will result in environmental degradation. This can be sort out by application of Polluter Pays Principle , states that the person who cause pollution should be responsible for the payment of damage . By this industries can be more cautious regarding rules and emission level and in case of degradation compensation can be availed . This principle is 1st applied in the Indian case of INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION vs. UOI .
QUICK GLANCE AT THE CASE:
NAME OF THE CASE
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION VS UNION OF INDIA AND ORS .ETC.
CITATION OF THE CASE
1996 AIR 1446 , 1996 SCC(3) 212, [1996]2 S.C.R.503
NAME OF THE COURT
HON’BLE SUPREME COURT OF INDIA
PETITIONERS IN THE CASE
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION
RESPONDENTS IN THE CASE
UNION OF INDIA AND ORS. ETC.
HON’BLE BENCH
JUSTICE B.P.JEEVAN REDDY
JUSTICE B.N.KRIPAL
JUDGEMENT PASSED ON
13TH FEBRUARY 1996
STATUES INVOLVED
POLLUTER PAY PRINCIPLE – 16TH PRINCIPLE OF RIO SUMMIT OF 1992
ART.12, 21, 32, 48-A,51-A(g) OF INDIAN CONSTITUTION , 1950
SEC.3 & 5 OF ENVIRONMENT PROTECTION ACT,1986
SEC.24(1),25 OF THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974
FACTS OF THE CASE:
Indian Council for Enviro-Legal Action is an NGO filed a writ petition under Article 32 against the Union of India and other chemical industries caused pollution in Bicchri village of Udaipur district, Rajasthan. This is a social action litigation field to sought remedy for the villagers and seeking the central & state government to perform their duties. To the north of bicchri a major industry called Hindustan Zinc ltd exist . In 1987 Hindustan Agro Chemical ltd, started producing Oleum and Single Super Phosphate. The HACL begin its subsidiary , Silver Chemicals ltd on producing ‘H’ acid in a plant within same complex.. Another unit called Jyoti Chemicals ltd established to produce ‘H’ acid with other chemicals. H acid production is banned in western countries but the need is still growing. The problem here is excessive quantities of highly toxic effluents of iron & gypsum sludge , which is not properly treated were disposed on land. About 2400 to 2500 MT of toxic sludge were discharged besides other pollutants. These toxic substance percolated deep into earth polluting the aquifers and subterranean water. The well and streams turned dark and dirty, made unfit for consumption and agriculture, also caused disease and health issues to the nearby people. The villagers started a revolt resulted in imposition of 144 C.R.P.C by district magistrate. It was declared by respondents that both the unit manufacturing H-acid were closed but the effect still remains. Petitioners putforth the issue before court and court requested the National Environment Engineering Research Institute (NEERI) to analyse the area and submit report and long term & short term remedial measures.
ORDERS PASSED DURING CASE(1989-1992):
On 11th December 1989 – court ordered NEERI to study and submit remedial measures report
On 5th March 1990 – court ordered RPCB to arrange for transportation, treatment and safe disposal of highly toxic effluents at the cost of respondents
On4th April 1990 – since no proper steps taken regarding the pervious order, the court ordered respondents to immediately remove the sludge within 5 weeks
On 17th February 1992 – court passed an order that respondents were liable for the discharge of waste; the production of H-acid gave birth to highly toxic iron& gypsum based sludge and fail to carry out the court order on 5th march 1990. It directed ministry of environment and forest , govt of India to send an expert team to analyse the area.
On 6th April 1992- court ordered for entombment of sludge under the supervision of officers of government of India and ministry of environment and forest
On 20th August 1993- court ordered to collect samples from entombment of sludges and nearby water for analysis .
ISSUES OF CASE:
1. Whether writ under article32 can be filed against a corporate industry & is it maintainable ?
2. To what extent the respondent held liable for cost of remedial measures in these proceedings?
3. Whether the industries producing chemical taken any environmental protection measures?
PETITIONER’S ARGUMENTS:
Due to the pollution caused by the respondent’s industries, ecosystem of Bicchri village degraded a lot . The units manufacturing H-acid started to produce various chemicals without obtaining license without proper equipments for disposal treatments. These units continue to function besides the RPCB order of closure. These show the clear violation of law and orders of court . Even after closure , the respondent doesn’t take adequate measures to remove the toxic effluents which caused a serious damage . Based on the report submitted by “Experts Committee of Ministry of Environment and Forest”,stated it is evident beyond doubt that due to the waste effluents discharged while preparation of H-acid resulted in the contamination of ground water. Also NEERI report in page 96, states due to this pollution, the crop production damaged a lot. Even the Eucalyptus trees shown stunned growth and many trees affected. Ground water and soil about 2km from the unit have been contaminated. The petitioners clearly stated the obligation and responsibility to clear up the remaining sludge and defray the compensation as suggested by NEERI report
RESPONDEN’S ARGUMENTS:
The respondents condemn that the writ is not maintainable under art.32 against a corporate industry as they are not state and hence court cant able to take action against the industries. They complained that a hostile approach taken by RPCB against them throughout the proceedings. Therefore they suspect the credibility of report submitted by the authorities. They also said that they never given a opportunity to cross examine the Experts.
JUDGEMENT:
The court held , the petition was filed against the Central and State government to do their duty and not against the respondents. The failure of government to perform their duty resulted in the serious infringement of citizens to live in a healthy environment. If the government officials doesn’t take action and it is proved in court, then it is the duty of court to make directions. Though the court can’t order to pay damages, it can direct the central government to determine the cost of remedy. By the provisions of section 3,4,5 of Environmental (Protection) Act, 1986 the central government is empower to take necessary steps regarding the issue . The respondents were offenders and there is no proof regarding the malafide actions of RPCB. Since the reports were submitted on request of court and not by others there is no need of cross examination of experts.
The court stated “M.C MEHTA VS UOI” [ OLEUM GAS LEAKAGE] case rule as , once a hazardous activity carried on a industry by person , then the management should make good to the loss caused whether the action took place with reasonable care or not. Absolute liability principle derived from this case subsequently attracts the “polluter pay principle” to be used in the present case . Under Section 3 and 5 of Environmental (Protection ) Act, 1986 , the court can put effect the Principle of Polluter Pays into action . The Bench stated that this liability is not subjected to any form of exceptions and order to pay the petitioners. As per this principle , the responsibility to repair the damage vest with the offender. The remedy to be paid under two heads : Cost to the Individuals and Cost to the Recovery of Ecology.
DIRECTIONS:
1. Central Government should determine the remedial cost. On 11th April 1997 the respondents were ordered to pay rupees 37,385,000 with 12% compound interest.
2. Due to several violation of law and severe damage to ecology caused by the respondent industries , they were Categorized under “ Rogue Industries” and passed order to close down those industries in Bicchri village.
3. Chemical industries to be scrutinized more rigorously irrespective of large –scale and medium-scale industry. All the chemical industries shall allowed to operate only after consideration of all environmental aspects and to be monitored closely.
4. Recommendation for setting up of Environment Courts with legally trained judicial officers and to allow summary proceedings.
5. Respondents to pay 50,000 rupees to the petitioner who fought about 6 years with their own means.
CONCLUSION:
The voluntary bodies deserve an applaud for their selfless actions which sought remedy to the villagers of bicchri. This case involve a important question that “ which is more important; environmental conditions or development?” the answer will be a balanced growth between the environment and development . The ultimate goal of the development lies with the good life of people . The development which ignore and degrade the environment is not really a boon but a curse which kill the entire world.
FAQ:
1. What is Polluter Pays Principle?
Person who make pollution result in environmental degradation shall be responsible for paying damages.
2. Can Writ be filed against corporate bodies?
Writ can be filed against government bodies under the purview of article 12. But court can order the authority to take action if offence committed.
