F.B. TARAPORAWALA AND ORS. ETC. ETC.versusBAYER INDIA LTD. AND ORS.

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                                                                                     ~-




A                F.B. TARAPORAWALA AND ORS. ETC. ETC.
                                   v.
                        BAYER INDIA LTD. AND ORS.

                               SEPTEMBER 9, 1996
B                 [KULDIP SINGH AND B.L. HANSARIA, JJ.)                       t'


          En~ironment Protection Act, 1986: Section 3(3).                      ··~


          Environmental lav.-Building plans submitted by builders--lntervention
C by lndustrialists-Cliemical Manufacturers-Directions given by High
    Court-Prohibition of construction within one kilometer of radius from
    chemical f actories-£ffect of-Risk to residents already residing within that
    radius-Sil/eguards for-Relocation of industries-Direction for Constitution
    of Central Authority for examining relocation.                             ·

D         Eitvironmental Law--Sustainable development.

          Constitution of India, 1950 : Article 21.                            "

          Right to life-Right to reside-/ndustrial area-residents of-f'robability
E of accident in factories-Protective measures for residents. •
          Wiih a view to obtaining orders in connection with their building
    plans, some builders filed writ petitions in the Bombay High Court. Some
    of the leading chemical manufacturers of the country including respon·
    dents fded intervention application in these proceedings on the ground      '
F   that the area in question had been reserved for industrial use. The High
    Court issued various directions in this regard including the one that there
             a
    shall be' prohibition in respect or any further construction within 1 kni.
    radius from the chemical factories. The respondent-chemical manufac-.
    turers preferred appeals before this Court challenging the directions
    issued by the High Court. This Court being of the prime f acie view that by
G   giving immunity to the industrialist in the impugned directions, injustice
    has been caused to the respondents of the locality inasmuch as prohibition
    of constrtiction within om~ km. radius in a crowded place like Thane did
    adversely affect the right to reside in the locality, leaving at the same time
    the large· number of inhabitants already residing exposed to the risk. Thus,
H   with a view to safeguarding the interests of the respondents in the event of
                                         680
                                                                            681

-
                 F.B. TARAPORAWALAv. BAYER INDIA LTD.

    some accident happening in the factory, it was considered desirable that A
    chemical manufacturers should either (i) obtain ownership of the area; or
    (ii) shift their factories to such place where residential area could be kept
    wide apart from the factory premises. However, respondent's response to
    both these options was negative on. account of huge financial involvement
    as well as feasibility. Further in view of the fact that this Court has neither B
    the expertise nor was it in possession of various information which shall
    be required, to decide one way or the other so far as relocation was
    concerned, it was considered desirable to leave this matter to be examined
    by an Authority.

                             .
          Disposing the appeals, this Court                                       c
           HELD : 1. The concept of "sustainable development" does call upon
    one and all to see to the maintenance of balance between development and
    its sustenance in future. [684·CJ

          2. In this case the problem touches the core of Article 21 of the D
    Constitution inasmuch as the very lives of the inhabitants living around
    the factories in question are in great jeopardy so much so that any
    probable accident in the factories may see annihilation of large number of
    inhabitants. May be the accident does not take place. But no risk can be
    taken. However, relocation does need a deeper probe because of the various E
    factors which would be required to be gone into. Such an exercise can
    usefully be taken by an Authority. Accordingly it is directed that the
    Central Government shall constitute an Authority, as visualised by section
    3(3) of the Environment Protection Act, 1986 within one month from the
    receipt of this order. The said Authority shall examine and decide all the
    relevant issues after affording reasonable opportunity of hearing to the F
    concerne_d parties. It shall submit its report within 3 months. [684·D·G] ·

          Ve/lore Citizens Welfare Fornm v. Union of India, [1996] 57 S.C.C.
    647, referred to.

         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7086 of G
    1994 Etc.

         From the Judgment and Order dated 29.6.94 of the Bombay High
    Court in R.P. No. 1485/91 in W.P. No. 4497 of 1990.

          H.N. Salve, Aron Jaitley, Dr. Rajeev Dhawan, P. Samda.ni, Vinod L. H
                                                                             I




    682                   SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.

A Desai, K.J. John, D.N. Mishra, S.V. Deshpande, A.M. Khanwilka(, D.M.
    Nargolkar, N.H. Seervai, P.H. Parekh, E.R. Kumar, M.C. Mehta, Ms.
    Seema Midha, K.R.R. Pillai, Ms. Suchitra and A. Chitale for the appearing
    parties.

          The Judgment of the Court was delivered by
B                                                                        "
          HANSARIA, .J, Industrial growth, yes; but by exposing a large seg-
    meht of society to the risk of losing lives, no. This apprehension is not
                                                                        a
    im~ginary. Bhopal disaster brought to the knowledge of all what ~ragedy
    can be caused by chemical industries. In the wake of what happened there
C   more than a decade ago, industrialists engaged in production of chemicals
    started thinking of taking precautionary and protective measures to see that
    if worst were to befall, how could their financial liability be taken care of.

         (2) The aforesaid mental make-up led some leading chemical
  manufacturers in the country, like Bayer India Limited, one of the respon-
D dents herein, to approach the Bombay High Court in a pending writ
  petition filed by some builders seeking certain orders of the High Court.
  In one of the writ petitions taken by the High Court for hearing, which was
  numbered as 4497/90, the Court requ~red the Municipal Corporation to
  re-examine the building plans and to pass appropriate orders keeping in
E view, inter alia, the provisions of section 46 of the Maharashtra Regional
  and Town Planning Act. The matter was brought to this Court by the
  respondents contending, inter alia, that in the sanctioned plan the area had
  been shown reserved for industrial user. This Court permitted the respon-
  dents to file a review petition before the High Court. On being so ap-
  proached, the High Court dismissed the intervention application of the
F respondents and directed the Municipal Corporation to permit construc-
  tion. This order led the respondents to approach this Courts again by filing
  Interlocutory Application in the disposed of SLP. This Court, by an order
  passed on 24.2.1993, directed the High Court to dispose of the review
  application and further directed to maintain status quo, which prevented
G the appellants to carry on construction activity within one k.m. radius from
  the factory premises. This High Court disposed of the review application
  on 26.9.1994 by giving the following directions :

             "(i) No additions or modifications shall be permitted in respect
                  of buildings that have been completed or those were under
H                 construction as on the date of stay order passed by this
     F.B. TARAPORAWALAv. BAYER INDIA LTD. [HANSARIA,J.]                    683

              Hon'ble Court on 8.1.1991.                                          A
         (ii) In respect of schemes where perm1ss1on may have been
              granted but no actual construction has been commenced as
              on the date of this Court's order dated· 8.1.1991, prohibition
              in respe1t of a total ban on further construction within 1 km.
              radius from the chemical units shall apply.                         B

         (iii) Save and except in the aforesaid cases, the stay order passed
               by this Court on 8.1.1991 shall continue to the extent that
               there shall be a prohibition in respect of any further permis-
               sions or for that matter construction within 1 k.m. radius from    c
               the chemical factories.

         (iv) The stay order shall stand vacated only in those of the cases
              as indicated where construction has been commenced and
              was required to be stopped by virtue of the stay of this
              Hon'ble Court."                                                     D

These appeals question the aforesaid directions of the High Court.

        3. The appeals were heard on a number of occasions and being of
 the prim a f acie view that by giving aforesaid immunity to the industrialists
 injustice has been caused to the residents of the locality inasmuch as
                                                                                  E
prohibition of con'structions within 1 k.m. radius in a crowded place like
Thane did adversely affect the right to reside in the locality, leaving at the
same time the large number of inhabitants already residing exposed to the
 risk mentioned above, it was thought by us that if the industrialists wanted
 to safeguard their interest in the event of some accident happening in their     F
 factories, it was for them either to obtain the ownership of the area in
,question or to shift their factories to such places where the residential area
 could be kept wide apart from the factory premises. But then, the response
 of the respondents to the first proposal being negative because of the huge
financial involvement, we ap~-!!r mind as to whether we could examine             G
at our level the question of relocation.

      4. Respondents were heard on this aspect on many occasions and in
the written submissions filed on 2.9.1996 by Bayer India, which can be
taken as a representative stand of the respondents, it has been stated
relocation is not possible logistically, financially or otherwise. The written H
    684                    SUPREME COURT REPORTS (1996] SUPP.5,S.C.R.

A submission mentions about various aspects relating to relocation at pages
   16 to 20. It has been felt by us that we have neither the expertise nor are
   we in possession of various information, which shall be required, ts decide
   one way or the other so far as the question of relocation is concerned. In
   such a situation what has appealed to us is to leave this matter to be
B examined by an Authority which we would require the Central Government
   to constitute, as visualised by section 3(3) of the Environment Protection
   Act, 1986 (the Act). It is not necessary to deal at length as to what is
   visualised by this Act and why?" This has been explained in detail in a
  _ju~gment delivered by one of us (Kuldip Singh, J.) on August 28, 1996 in
   Writ Petition (C) No. 914 of 1991, on behalf of a 3-Judge Bench. The
C concept of "sustainable development", whose salient points have been noted
   in the aforesaid judgment, does call upon one and all to see to the
   maintenance of balance between development and its sustenance in future.

          ! 5. In the appeals at hand, we were confronted with a problem which
D has more serious consequences and which touches the core of Article 21
    of the Constitution inasmuch as the very lives of the inhabitants living
    around the factories in question are in great jeopardy so much so that any
    probable accident in the factories may see annihilation of large number of
    inhabitants. May be the accident does not take place, as has been submitted
    by Shri Jaitley appearing for the respondents. There is, however, no ruling
E   out of the same altogether as Bhopal has shown. No risk can, therefore, be
    taken. But then relocation does need a deeper probe because of the various
    f~ctors which would be required to be gone into. Such an exercise can
    usefully be taken by an Authority of which mention has been made above.


F
       _ 6. We, therefore, direct the constitution of an Authority under sec-
    tion 3(3) of the Act by the Central Government, who shall confer all the
    necessary powers under the Act on the Authority, which shall be con-
    stituted within one month from the receipt of this order. The Authority
    ~hall submit its report to the Central Government within three months after
G   examining and deciding all the relevant issues including those mentioned
    by us. This would be done by affording reasonable opportunity of hearing
    ~o-the concerned parties. Follow up actions shall be taken by all concerned
    as per the recommendations of the Authority within reasonable ,time.

H           7. As the constitution and deliberation of the authority would take
     F.B. TARAPORAWALAv. BAYERINDIALTD.[HANSARIA,J.)                        685

time, and its ultimate result cannot be foreseen at this stage, we have A.
thought it fit to direct the Bombay Municipal Corporation to proceed
further with the plans which had been submitted by the appellants, some
of which also came to be sanctioned. But then, as sanctioning in some cases
was about a decade back and as the scenario and thinking on· the subject
has since then changed a lot, so also the building bye-laws, we have thought B
it fit to direct the Corporation to re-examine the question of grant of
sanction on the basis of the existing rules and bye-law. The Corporation
may proceed with this exercise, but it would await the result of the report
of the aforesaid Authority. We have desired the Corporation to undertake
this work at this stage itself because the matter has been delayed already
and Authority's deliberation would not be available for quite some time;     C

       8. In the aforesaid view of the matter, the review petitions filed before
the High Court by the respondents are not required to be kept alive and
they would stand dismissed on withdrawal, to which effect prayer was made
before us. The impugned directions of the High Court would automatically
lapse.                                                                             D
         9. The appeals are disposed of with these directions. No order as to
costs.

T.N.A.                                                   Appeals disposed of.
                                                                                   E