Holding

Private polluting industries, though not "State" actors, are subject to writ jurisdiction through the State’s statutory duties, and under the absolute‑liability rule and polluter‑pays principle they must bear the cost of environmental remediation.

Summary

The Supreme Court entertained a social‑action writ filed by the Indian Council for Enviro‑Legal Action on behalf of villagers of Bichhri, who suffered severe water, soil and health damage due to untreated effluents and toxic sludge from private chemical industries. The petition sought directions against the Union of India, the Rajasthan Government and the State Pollution Control Board to enforce statutory duties under the Water, Air and Environment (Protection) Acts. The Court held that the petition was maintainable even though the polluters were private entities, because the State’s failure to act violated the fundamental right to life under Article 21. Applying the absolute‑liability rule from the Oleum Gas Leak case and the "polluter‑pays" principle, the Court directed the Central Government to determine and recover the cost of remedial measures from the respondents and ordered the closure of their plants. It also directed the Central Government to fix the amount of compensation, to monitor implementation, and allowed the villagers to sue for damages in civil courts. The writ petition was allowed with comprehensive directions for remediation and enforcement.

Issues considered

The maintainability of a writ under Article 32 against private polluting industries.
Whether the State Pollution Control Board and the governments can be compelled to perform statutory duties to protect the right to life.
The applicability of the absolute‑liability rule and the polluter‑pays principle to private industrial activities.
The power of the Court to direct the Central Government to recover remediation costs from the polluters.
The question of awarding damages against private respondents under Article 32.
Whether the respondents qualify as a "State" within the meaning of Article 12.

Legislation cited

Air (Prevention and Control of Pollution) Act, 1981
Constitution of Indias. Article 21, s. Article 32
Environment (Protection) Act, 1986s. Section 2(a), s. Section 3, s. Section 4, s. Section 5, s. Section 6, s. Section 7
Hazardous Wastes (Management and Handling) Rules, 1989
Industries (Development and Regulation) Act, 1951
Water (Prevention and Control of Pollution) Act, 1974s. Section 24, s. Section 25, s. Section 33, s. Section 33A

Subjects

environmental lawabsolute liabilitypolluter paysArticle 21Article 32social action litigationindustrial pollutionpublic interest litigationremedial measuresenvironmental remediation

Judgment

INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION A
v.
UNION OF INDIA

FEBRUARY 13, 1996

[B.P. JEEVAN REDDY AND B.N. KIRPAL, JJ.] B

Constitution of India, 1950 : Articles 21 and 32.

Writ Petition-Maintainability of-Social action litigation--On behalf
of affected villagers-Due to pollution caused by private chemical in- C
dustries--Directed against Central and State Govemments and State Pollution
Control Board-To compel them to perfonn their statutory duties-Held :
Petition maintainable even if private chemical industries were not amenable
to writ jurisdiction-The Cowt had power and duty to intervene and protect
right to life of citizens-Water (Prevention and Control of Pollution) Act,
1981-AIR (Prevention and Control of Pollution) Act, 1981-Hazardous D
Wastes (Management and Handling) Rules, 1989.

Constitution of India, 1950 : Article 32.

Petition complaining of pollution by private chemical industries-Court
can direct Central Govemment to recover costs of remedial measures from E
offending industries-Question of awarding damages against these industries
left open.

Environmental (Protection) Act, 1986: Sections 3 & 4.

Environmental Pollution-Remedial measures-Costs for carrying
F
out-Central Govemment could levy on pollute~Such power was implicit in
Sections 3 & 4.

·Environmental (Protection) Act, 1986: Sections 3 & 5.
I G
Envirimmental Pollution-Remedial measures-Pollute~Liability
of-To defray costs-{Jniversally accepted as sound principle-central
Govemment empowered to give directions and take measures for giving effect
to this principle.

Environmental Pollution-chemical industries-Main culprits-Their H
503
/.

504 SUPREME COURT REPORTS [1996] 2 S.C.R.

A establishment and functioning must be scmtinized rigorously.
Torts:

Environmental pollutiort--Negligence-P1inciples of "strict liability'' and
..
"Polluter pays"-Applicability of-Hazardous or inherently dangerous ac-
B tivity-Person carrying on-Absolute liability-Rule of-Laid down-In
Oleum gas leak-Not obiter but appropriate and binding--Rule in Reylands
v. Fletche1~Suitability and applicability to Indian conditions.

Practice and Procedure :
c Environmental pollution-:;-R.ight to life-Invasion of-Due to pollution
caused by private chemical industries-Rep01ts from experts-Called by
Court-Use of-Various orders passed on basis of reports-Objection there-
tO-Urged at a belated stage after lapse of several years-Wholly unacceptable.

D The units/factories of the Respondents, located in an industrial
complex, were all chemical industries and were controlled by the same
group of individuals. The respondents started producing certain chemicals
like Oleum (concentrated form of sulphuric acid), Single Super Phosphate,
'H' acid, fertilizers and a few other products. The respondents had not
obtained the requi.site clearances/consents/licences; nor did they instal any
E equipment for treatment of highly toxic effiuents discharged by them. 'H'
acid was meant for export exclusively. Its manufacture gave rise to enor-
mous quantities of highly toxic effiuents-in particular iron - based and
gypsum-based sludge - which if not properly treated, posed grave threat to
mother Earth. It poisoned the earth, the water and everything that came
F ·in contact with it. The chemical produced ~y the respondents had given
birth to highly toxic sludge (iron-based sludge and gypsum-based sludge)
besides other pollutants. Since the toxic untreated waste waters were
allowed to flow out freely and because. the untreated toxic sludge was
thrown in the open in and around the complex, the toxic substances had
percolated deep into the bowels of the earth polluting foe acquifers and
G the sub-terranean supply of water. The water in the wells and the streams
and turned dark and dirty rendering it unfit for human consumption, unfit
for cattle to drink and for irrigating the land. The soil had become polluted
rendering it unfit for cultivation, the main stay of the villagers, resulting
in misery to the vill~gers needs no emphasis. It spread disease, death and
H disaster in the village and the surrounding areas. The villagers then rose
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.O.I. 505

in virtual revolt leading to the imposition of Section 144 Cr.P.C. by the A
District Magistrate in the area. It was averred by the respondents that
both the units, had stopped manufacturing 'ff' acid and were closed. Yet
the consequences of their action remain - the sludge, the long-lasting
damage to earth, to underground water, to human beings, to cattle and the
village economy.
B
The petitioner filed the present writ petition before this Court by way
of social action litigation, complaining precisely of the above situation and
requesting for appropriate remedial action. The Court requested the Na-
tional Environmental Engineering Research Institute (NEERI) to study
the situation in and around the village and submit their report "as to the C
choice and scale of the available remedial alternatives". It was found that
out of a large quantity of sludge only a small quantity had been stored in
the pits provided by the respondents. The remaining sludge was still there
either within the area of the complex of the respondents or outside their
complex. Huge quantities of sludge were lying around either in the form
of mounds or placed in depressions, or spread over the continguous areas D
and covered with local soil to conceal its existence. The said sludge was
only a part of the pernicious discharge emanating from the manufacture
of 'H' acid. The other part, which was not visible now (except in its
deleterious effects upon the soil and underground water) was the 'mother
liquor' produced in enormous quantities which had either flowed out or E
percolated into ·the soil.

On behalf of the petitioner it was contended that the abundant
material on record clearly established the culpability of the respondents for
the devastation in the village and surrounding areas and their respon-
sibility and obligation to properly store the remaining sludge, stop dis· F
charge of all untreated effluents by taking necessary measures.

On behalf of the respondents it was contended that they were private
corporate bodies and were not 'State' within the meaning of Article 12 of
the Constitution; that a writ petition under Article 32 of the Constitution G
was, therefore, not maintainable; that the State Pollution Control Board
. had been adopting a hostile and malafide attitude towards them; that
blaming them for the pollution was incorrect as a fact and unjustified; that
they had been cooperating with this Court in all matters and carrying out
its directions faithfully, and that the Reports submitted by the various
so-called expert committees that sludge was still lying around within and H.
q

j
506 SUPREME COURT REPORTS [1996] 2 S.C.R. '

A outside their complex and/or that the toxic wastes from the Sulphuric Acid
Plant were flowing through and reaching the sludge a:'Jd creating a highly
dangerous situation w~s untrue and incorrect.

Allowing the appeal, this Court

B HELD : 1.1. This writ petition is not really for issuance of ap-
propriate writ, order or directions against the respondents but is directed
against the Central Government, the State Government and the State
Pollution Control Board to perform their statutory duties on the ground
that their failure to carry out their statutory duties is seriously undermin-
c ing the right to life (of the residents of the village and the affected area)
guaranteed by Article 21 of the Constitution. If this Court finds that the
Government/authorities have not taken the action required of them by law
and that their inaction is jeopardising the right to life of the citizens of
this Country or of any section thereof, it is the duty of this Court to
D intervene. If it is found that the respondents are flouting the provisions of
law and the directions and orders issued by the lawful authorities, this
Court can certainly make appropriate directions to ensure compliance
with law and lawful directions made thereunder. This is a social action
litigation on behalf of the villagers whose right to life, as elucidated by this
Court in several decisions, is invaded and seriously infringed by the
E respondents as is established by the various Reports of the experts called
for, and filed before this Court. If an industry is established without
obtaining the requisite permission and clearances and if the industry is
continued to be run in blatant disregard of law to the detriment of life and
liberty of the citizens living in the vicinity, this Court has power to
F intervene and' protect the fundamental right to life a.nd liberty_ of the
citizens of this country. [536-E-H; 537-A-B]

1.2. The State Pollution Control Board has not been adopting a
hostile attitude towards the re~pondents and the reports prepared by it
G can be relied upon. If the respondents establish and operate their plants
contrary to law, flouting all safety norms provided by law, the State
Pollution Control Board is bound to act. On that account, it cannot be
said to be acting out of animus or adopting a hostile attitude. Repeated
and persistent violations call for repeated orders. That is no proof of
hostility. The Reports were called by this Court and several Orders pass~d
-
H on the basis of those Reports. It was never suggested on behalf of Respon-
'
\
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.O.I. 507

dents that unless they are permitted to cross-examine the experts or the A
persons who made those Reports, their Reports cannot be acted upon. This
objection, urged at this late stage of proceedings - after a lapse of several
years - is wholly unacceptable. The persons who made the said Reports are
all experts in their field and under no obligation either to the State
Pollution Control Board or for that matter to any other person or in-
B
dustry. It is in view of their independence and competence that their
Reports were relied upon and made the basis of passing Orders by this
Court from time to time. (537-C-H; 538-A]

13. The report of National Environmental Engineering Research
Institute clearly establish that huge quantities of sludge were still lying C
around either in the form of mounds or placed in depressions, or spread
over the continguous areas and covered with local soil to conceal its
existence. It is worth reiterating that the said sludge is only part of the
pernicious discharges emanating from the manufacture of 'H' acid. The
other part, which is unfortunately not visible now (except in its deleterious
effects upon the soil and underground water) is the 'mother liquor' D
produced in enormous quantities which has either flowed out or percolated
into the soil. It must, therefore, be held that the respondents alone are
responsible for all the damage to the soil, to the underground water and
to the village in general. (539-C-E; H]
E
Indian Council for Enviro-Legal Action v. Union of India, (1995) 5
SCALE 578, relied on.

2.1. Even if it is assumed that this Court cannot award damages
against the respondents in these proceedings that does not mean that the
Court cannot direct the Central Government to determine and recover the F
cost of remedial measures from the respondents.

The Central Government is empowered under Sections 2 (a), 3 and
5 of the Environment (Protection) Act, 1986 to take all measures and issue
all such directions as are called for, for the above purpose. In the present
case, the said powers will include giving directions for the removal of G
sludge, for undertaking remedial measures and also the power to impose
the cost of remedial measures on the offending industry and utilise the
amount so recovered for carrying out remedial measures. This Court can
certainly give directions to the Central Government/its delegate to take all
such measures, if in a given case this Court finds that such directions are H
j
.\

508 SUPREME COURT REPORTS [1996] 2 S.C.R.

A warranted. It cannot, therefore, be said that this Court cannot make
· appropriate directions for the purpose of ensuring remedial action. It is
more a matter of form. [542-E; 543-A-D; G]

Indian Council for Enviro-Legal Action v. Union of India, (1995) 5
SCALE 578, relied on.
B
2.2. The question is whether and to what extent can the respondents
be made responsible for defraying the cost of remedial measures in these
proceedings under Article 32. Any principle evolved in this behalf should
be simple, practical and suited to the conditions obtaining in this country.
C The law stated by this Court in M.C. Mehta v. Union of India (Oleum Gas
Leak Case), [1987) 1 SCC 395 is by far the more appropriate one and the
said decision is not obiter. According to this rule, once the activio/ carried
on is hazardous or inherently dangerous, the person carrying on such
activity is liable to make good the loss caused to any other person by his
D activity irrespective of the fact whether he took reasonable care while
carrying on his activity. The rule is premised upon the very nature of the
activity carried on. In the words of the.Constitution Bench, such an activity
"can be tolerated only on the condition that the enterprise engaged in such
hazardous or inherently dangerous activity indemnifies all those who
suffer on account of the carrying on of such hazardous or inherently
E dangerous activity regardless of whether it is carried on carefully or not."
The Constitution Bench has also assigned the reason for stating the law
in the said terms. It is that the enterprise (carrying on the hazardous or
inherently dangerous activity) alone has the resource to discover and
guard against hazards or danger and not the person affected and the
F practical difficulty (on the part of the affected person) in establishing the
absence of reasonable care. or that the damage to him was foreseeable by
the enterprise. [540-B; 546-F-H; 547-A-C]
r
23. The Constitution Bench also observed such liability is not sub-
ject to any of the exceptions which operate vis-a-vis the tortious principle
G of strict liability under the rule in Ryland v. Fletcher. The twin tests ~ apart
from the proof of damage to the plaintiff by the act/negligence of the
defendants - which must be satisfied to attract this rule are "foreseeability"
and "non-natural" user of the land. [545-F]

H M.C. Mehta v. Union of India, [1987) 1S.C.C.395, followed.
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.0.I. 509

Union Carbide C01poration v. Union of India, [1991] 4 S.C.C. 584, A
paras 14 & 15, overruled .
.'
Pravinbhai Jashbhai & Ors. v. State of Gujarat and Anr., (1995) 2
G.L.R. 1210; Cambridge Water Company v. Eastern Counties Leather, plc,
(1994) 2 W.L.R. 53 and Bumie Port Authority v. General Jones Pty Ltd.,
(1994) 68 Aus. W 331, referred to. B

Ballard v. Tomlinson, (1885) 29 Ch. D. 115, cited.

Rylands v. Fletcher, (1866) 3 H.L. 330, held inapplicable.

- 3.1. The question of liability of the respondents to defray the costs C
of remedial measures can also be looked into from another angle, which
has now come to be accepted universally as a sound principle,. viz., the
"Polluter Pays" Principle. According to this principle, the responsibility for
repairing the damage is that of the offending party. Sections 3 and 5 of the
Environment Act empower the Central Government to give directions and D
take measures for giving effect to this principle. Sections 3 and 4 of the
Environment Act confers upon the Central Government the power to give
directions of the above nature and to the above effect. Levy of costs
required for carrying out remedial measures is implicit in Sections 3 and
4. [547-F-G; 548-G-H; 5:17-E]
E
"Historic Pollution - Dose the Polluter Pay ?" By Carolyn Shelbourn
- Journal of Planning and Environmental Law, Aug. 1974 issue, approved.

3.2. Further, in this case, there is a clear violation of law and
disobedience of the Orders of this Court apart from the orders of the
lawful authorities. This Court has to ensure the observance of law and of F 1

its Orders as a part of enforcement of fundamental rights. That power
cannot be disputed. If so, this Court is competent to make Orders neces-
sary for a full and effective implementation of its Orders - and that
includes the imposition and recovery of cost of all measures including
remedial measures. [542-F, G] G
4. In the circumstances, it is appropriate that the task of determining
· the amount required for carrying out the necessary remedial measures to
repair the damage and to restore the water and soil to the condition it was
in before the respondents commenced their operations, is placed upon the
Central Government in the light of the provisions of the Environment Act. H
j
r
510 SUPREME COURT REPORTS [1996] 2 S.C.R.

A It is open to the Central Government to take the help and assistance of
the State Government, the State Pollution Control Board or such other
agency or authority as it thinks fit. Itis but appropriate that an estimate.
of the cost of remedial measures be made now with notice to the respon-
dents, which amount should be paid to Central Government and/or
B ·recovered from them by the Central Government. [548-H, 549-A, D]
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 967 of
1989.

With
c
Writ Petition- (C) Nos. 94/90, 824/93 and 76 of 1994.

(Under Article 32 of the Constitution of India.)

Altaf Ahmad, Additional Solicitor General, Harish N. Salve, K.N.
D Bhat and P.P. Malhotra, M.C. Mehta, Ms. Seema Midha, K.R.R. Pillai,
P.R. Seetharaman, R.P. Wadhwani, K.B. Rohtagi, M.K. Aggarwal, Ms.
Aparna Rohtagi, Mukul Mudgal, Aruneshwar Gupta, S.B. Wad, Surya
Kant, Ms. Sushma Suri and Wasim A. Qadri for the appearing parties.

The Judgment of th'e Court was delivered by
E
B.P. JEEVAN REDDY, J. WRIT PETITION (C) NO. 967 OF 1989:

This 'Writ petition filed by an environmentalist organisation brings to
light the woes of people living in the vicinity of chemical industrial plants
p in India. It highlights the disregard, nay, contempt for law and lawful
authorities on the part of some among the emerging breed of
entrepreneurs, taking advantage, as they do, of the country's need for
industrialisation and export earnings. Pursuit of profit has absolutely
drained them of any feeling for fellow human beings - for that matter, for
anything else. And the law seems to have been helpless. Systemic defects?
G It is such instances which have led many people in this country to believe ,..
that disregard of law pays and that the consequences of such disregard will
never be visited upon them - particularly, if they are men with means.
Strong words indeed - but nothing less would reflect the deep sense of hurt,
the hearing of this case has instilled in us. The facts of the case will bear
H out these opening remarks.
INDIANCOUNCILFORENVIRO-LEGALActrONv. U.O.I. [B.P.JEEVANREDDY,J.J 511

Bichhri is a small village in Udaipur district of Rajasthan. To its A
north is a major industrial establishment, Hindustan Zinc Limited, a public
sector concern. That did not affect Bichri. Its woes began somewhere in
1987 when the fourth respondent herein, Hindustan Agro Chemicals
Limited started producing certain chemicals like Oleum [said to be the
concentrated form of Sulphuric acid) and Single Super Phosphate. The real
B
calamity occurred when a sister concern, Silver Chemicals [Respondent
No. 5}, commenced production of 'H' acid in a plant located within the
same complex. 'H' acid was meant for export exclusively. Its manufacture
gives rise to enormous quantities of highly toxic effluents - in particular,
iron-based and gypsum-based sludge - which if not properly treated, pose
grave threat to mother Earth. It poisons the earth, the water and everything c
that comes in contact with it. Jyoti Chemicals (Respondent No. 8] is
another unit established to produce 'H' acid, besides some other chemicals.
Respondents Nos. 6 and 7 were established to produce fertilizers and a
few other products.
D
All the units/factories of Respondents Nos. 4 to 8 are situated in the
same complex and are controlled by the same group of individuals. All the
units are what may be called "chemical industries". The complex is located
within the limits of Bichhri village.

Because of the pernicious wastes emerging from the production of E
'H' acid, its manufacture is stated to have been banned in the western
countries. But the need of 'H' acid continues in the West. That need is
catered to by the industries like the Silver Chemicals and Jyoti Chemicals
in this part of the world. (A few other units producing 'H' acid have been
established in Gujarat, as would be evident from the decision of the F
Gujarat High Court in Pravinbhai Jashbhai & Ors. v. State of Gujarat &
Anr., (1995) 2 G.L.R. 1210, a decision rendered by one of us, B.N. Kirpoal,
J. as the Chief Justice of that Court.] Silver Chemicals is stated to have
produced 375 MT of 'H' acid. The quantity of 'H' acid produced by Jyoti
Chemicals is not known. It says that it produced only 20 mt., as trial G
production, and no more. Whatever quantity these two units may have
produced, it has given birth to about 2400-2500 MT of highly toxic sludge
[iron-based sludge and gypsum-based sludge] besides other pollutants.
Since the toxic untreated waste waters were allowed to flow out freely and
because the untreated toxic sludge was thrown in the open in and around
the complex, the toxic substances have percolated dee.P into the bowels of H
512 SUPREME COURT REPORTS [1996] 2 S.C.R.

A the earth polluting the acquifers and the sub-terranean supply of water.
The water in the wells and the streams has turned dark and dirty rendering
it unfit for human consumption. It has become unfit for cattle to drink and
for irrigating the land. The soil has become polluted rendering it unfit for
cultivation, the main stay of the villagers. The resulting misery to the
villagers needs no emphasis. It spread disease, death and disaster in the
B
village and the surrounding areas. This sudden degradation of earth and
water had an echo in Parliament too. An Hon'ble Minister said, action was
being taken, but nothing meaningful was done on the spot. The villagers
then rose in virtual revolt leading to the imposition of Section 144 Cr.P.C.
by the District Magistrate in the area and the closure of Silver Chemicals
C in January, 1989. It is averred by the respondents that both the units, Silver
_,
Chemicals and Jyoti Chemicals have stopped manufacturing 'H' acid since
January, 1989 and are closed. We may assume it to be so. Yet the conse-
quences of their action remain - the sludge, the long-lasting damage to
earth, to underground water, to human beings, to cattle and the village
D economy .. It is with these consequences that we are to contend with in this
writ petition.

The present social action litigation was initiated in August, 1989
complaining precisely of the above situation and requesting for appropriate
remedial action. To the writ petition, the petitioner enclosed a number of
E photographs illustrating the enormous damage done to water, cattle, plants
and to the area in general. A good amount of technical data and other
material was also produced supporting the averments in the writ petition.

COUNTER-AFFIDAVITS OF THE RESPONDENTS:

F On notice being given, counter-affidavits have been filed by the
Government of India, Government of Rajasthan, Rajasthan Pollution Con-
trol Board [R.P.C.B.] and Respondents Nos. 4 to 8. Since the earliest
counter-affidavit in point of time is that of R.P. C.B., we shall refer to it in
the first instance. It was filed on October 26, 1989. The following are the
G averments:
(a) Re.: Hindustan Agro Chemicals Limited [R-4]: The unit obtained
'No-Objection Certificate' from the P.C.B. for manufacturing sulphuric
acid and alumina sulphate. The Board granted clearance subject to certain
conditions. Later 'No-Objection Certificate' was granted under the Water
H [Prevention and Control of Pollution] Act, 1974 [Water Act] and Air
INDIANCOUNCILFORENVIRO-LEGALACTIONv. U.O.l. (B.P.JEEVANREDDY,J.) 513

(Prevention and Control of Pollution) Act, 1981 [Air Act], again subject to A
certain conditions. However, this unit changed its product without
clearance from the Board. Instead of sulphuric acid, it started manufactur-
ing Oleum and Single Super Phosphate [S.S.P.]. Accordingly, consent was
refused to the unit on February 16, 1987. Directions were also issued to
close down the unit.
B
(b) Re.: Silver Chemicals [R-5) : This unit was promoted by the fourth
respondent without obtaining 'No-Objection Certificate' from the Board
for the manufacture of 'H' acid. The waste water generated from the
manufacture of 'H' acid is highly acidic and contains very high concentra-
tion of dissolved solids along with several dangerous pollutants. This unit C
was commissioned in February, 1988 without obtaining the prior consent
of the Board and accordingly, notice pf closure was served on April 30,
1988. On May 12, 1988, the unit applied for consent under Wat er and Air
Acts which was refused. The Government was requested to issue directions
for cutting off the electricity and water to this unit but no action was taken
by the Government. The unit was found closed on the date of mspection, D
viz., October 2, 1989.

(c) Re.: Rajasthan Multi Fertilizers [R-6] : This unit was installed without
obtaining prior 'No-Objection Certificate from the Board and without even
applying for consent under Water and Air Acts. Notice was served on this E
unit on February 20, 1989. In reply whereto, the Board was informed that
the unit was closed since last three years and that electricity has also been
cut off since February 12, 1988.

(d) Re.: Phosphates India [R-7] : This unit was also established without
obtaining prior 'No-Objection Certificate' from the Board nor did it apply F
for consent under the Water and Air Acts. When notice dated February
20, 1989 was served upon this unit, the Management replied that this unit
was closed for a long time.

(e) Re.: Jyoti Chemicals [R-8] : This unit applied for 'No-Objection
Certificate' for producing ferric alum. 'No-Objection Certificate' was is- G
sued imoosing various conditions on April 8, 1988. The 'No-Objection
Certificate' was withdrawn on May 30, 1988 on account of non-compliance
with its conditions. The consent applied for under Water and Air Acts by
this unit was also refused. Subsequently, on February 9, 1989, the unit
, applied for fresh consent for manufacturing 'H' acid. The consent was H
514 SUPREME COURT REPORTS [1996] 2 S.C.R.

A refused on May 30, 1989. The Board has been keeping an eye upon this
unit to ensure that it does not start the manufacture of 'H' acid. On
October 2, 1989, when the unit was inspected, it was found closed.

The Board submitted further [in its counter-affidavit] that the sludge
lying in the open in the premises of Respondents Nos. 4 to 8 ought to be
B disposed of in accordance with the provisions contained in the Hazardous
Wastes (Management and Handling) Rules, 1989 framed under Environ-
ment (Protection) Act, 1986. According to the Board, the responsibility for
creating the ,said hazardous situation was squarely that of Respondents
Nos. 4 to 8. The Board enclosed several documents to its counter in
c support of the averments contained therein.

The Govemment of Rajasthan filed its counter-affidavit on January 20,
1990. It made a curious statement in Para 3 to the following effect: "(T)hat
the State Government is now aware of the pollution of under ground water
being caused by liquid effluents from the firms arrayed as Respondent Nos.
D 4 to 8 in the writ petition. Therefore, the State Government has initiated
action through the Pollution Control Board to check further spread of
pollution." The State Government stated that the water in certain wells in
Bichri village and some other surrounding villages has become unfit for
drinking by human beings and cattle, though in some other wells, the water
E remains unaffected.

The Ministry of Environment and Forests, Govemment of India filed
its counter on February 8, 1990. In their counter, the Government of India
stated that Silver Chemicals was merely granted a Letter of Intent but it
never applied for conversion of the Letter of Intent into industrial licence.
F Commencing production before obtaining industrial licence is an offence
under Industries [Development and Regulation] Act, 1951. So far as Jyoti
Chemicals is concerned, it is stated that it has not approached the Govern-
ment at any time even for a Letter of Intent. The Government of India
stated that in June, 1989, a study of the situation in Bichri village and some
G other surrounding villages was conducted by the Centre for Science and
Environment. A copy of their Report is enclosed to the counter. The
Report states the consequences emanating from the production of 'H' acid
and the manner in which the resulting wastes were dealt with by Respon-
dents Nos. 4 to 8 thus :

H "The effluents are very difficult to treat as many of the pollutants
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.O.I. (B.P. JEEVAN REDDY, J.] 515

·- present are refractory in nature. Setting up such highly pollutin~ A
industry in a critical ground water area was essentially ill-con-
ceived. The effluents seriously polluted the nearby drain and over-
flowed into U daisagar main canal, severely corroding its
cement-concrete lined bed and banks. The polluted waters also
seriously degraded some agricultural land and damaged standing
B
crops. On being ordered to contain the effluents, the industry
installed an unlined holding pond within its premises and resorted
to spraying the effluent on the nearby hill-slope. This only resulted
in extensive seepage and percolation of the effluents into ground
water and their spread down the acquifer. Currently about 60 wells
appear to have been significantly polluted but every week a few c
new wells, down the acquifer start showing signs of pollution. This
has created ~erious problems for water supply for domestic pur-
poses, cattle-watering crop irrigation and other beneficial uses, and
it has also caused human illness and even death, degradation of
land and damage to fruit, trees and other vegetation. There are D
serious apprehensions that the pollution and its harmful effects
will spread further after the onset of the monsoon as the water
percolating from the higher parts of the basin moves down carrying
the pollutants lying on the slopes - in the holding pond and those
already underground."
E
Each of the Respondent Nos. 4 to 8 filed separate counter-affidavits.
All the affidavits filed on behalf of these respondents are sworn-to by Lt.
Gen. M.L. Yadava, who described himself as the President of each of these
units. In the counter-affidavit filed on behalf of the fourth respondent, it is
stated that it is in no way responsible for the situation complained of. It is .p
engaged in the manufacture of· sulphuric acid and had commenced its
operations on January 6, 1987. It has been granted 'No-Objection
Certificates' from time to time. The consent obtained from R.P.C.B. is valid
upto August 15, 1988. Application for extension of consent has already
been filed. This counter-affidavit was filed on january 18, 1990.
G
In the counter-affidavit filed on behalf of the fifth respondent [Silver
Chemicals], it is stated that the manufacture of 'H' acid which was com-
menced in February, 1988 has been completely stopped after January, 1989.
The respondent is fully conscious of the need to conserve and protect
environment and is prepared fully to cooperate in that behalf. It is ready H
(
j
)
516 SUPREME COURT REPORTS [1996] 2 S.C.R.

A to comply with any stipulations or directions that may be made for the
purpose. It, however, submitted that the real culprit is Hindustan Zinc
Limited. The Archeological Department of the Government of Rajasthan
had issued environmental clearance for its unit [rather surprising state-
ment]. 'No-Objection Certificates' had also been issued by the Executive
Engineer [Irrigation], Udaipur Division and the Wild Life Warden. So far
B as the requirement of 'consent' under Water and Air Acts is concerned, it
merely stated that it had applied for it. Its closure in January, 1989 was on
account of promulgation of an order under Section 144 Cr. P.C. by the
District Magistrate in view of wide-spread agitation by the villagers against
its functioning.
c
In the counter-affidavit filed on behalf of the sixth respondent [Rajas-
than Mult~ Fertilizers], it is stated that it commenced production on March
14, 1982 and closed down in December, 1985. Electrical connection to it
was disconnected on February 13, 1988. It was submitted that since it is a
small-scale industry, no consent was asked for from anyone. It denied that
D it was causing any pollution, either ground, air or water.
..
In the counter-affidavit filed on behalf of the seventh respondent
• [Phosphates India], it is stated that this unit commenced production on
May 15, 1988 but was closed on and with effect from September 1, 1988
E for want of support from the Central Government in the form of subsidies.
It submitted that it has merged with the fourth respondent in 1987-88.

In the counter-affidavit filed on behalf of the eighth respondent [Jyoti
Chemicals], it is stated that it has no electrical connection, that it had
commencei,i production in April 1987 and closed down completely in
F January, 1989. It is stated that the unit produced 'H' acid to an extent of
20 MT as a trial measure for one month with the permission of the
Industries Department. It is no longer manufacturing 'H' acid and, there-
fore, is not responsible for causing any pollution. It is further submitted
that it is a small-scale industry and was registered with the District Industry
G Centre, Udaipur for the manufacture of ferric alum and 'H' acid. It began
its operation simultaneously with the fifth respondent, Silver Chemicals,
and several of the clearances are common to both, as both of them are
• located together. The trial production of 'H' acid, it is stated, took place
in January, 1987..

H Hindustan ·Zinc Limited was impleaded as the ninth respondent at
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.O.I. (B.P. JEEVAN REDDY, J.J 517

the instance of Respondents Nos. 4 to 8. It has filed a counter-affidavit A
denying that it is responsible in any manner for causing any pollution in
Bichri village or the surrounding areas. According to it, its plants are
situated downstream, towards north of Bichri village. We do not think it
necessary to refer to this affidavit in any detail inasmuch as we are not
concerned, in this writ petition, with the pollution, if any, caused by the
ninth respondent in other villages but only with the pollution caused by
B
Respondents Nos. 4 to 8 in Bichri or surrounding villages.

ORDERS PASSED AND STEPS TAKEN DURING
THE PERIOD 1989-1992:
c
The first considered Order made, after hearing the parties, by this
Court is of December 11, 1989. Under this Order, the Court requested the
National Environmental Engineering Research Institute [NEERI] to study
the situation in and around Bichri village and submit their report "as to the
choice and scale of the available remedial alternatives". NEERI was re- D
quested to suggest both short-term and long-term measures required to
combat the hazard already caused. Directions were also made for supply
of d1inking water to affected villages by the State of Rajasthan. The R.P.C.B.
was directed to make available to the Court the Report it had prepared
concerning the situation in Bichri village.
E
On the next da.te of hearing, i.e., March 5, 1990, the Court took note
of the statements made on behalf of Respondents Nos. 4 to 8 that they have
completely stopped the manufacture of 'H' acid in their plants and that
they did not propose to resume its manufacture. The Court also took note
of the petitioner's statement that though the manufacture of 'H' acid may F
have been stopped, a large quantity of highly dangerous effluent
waste/sludge has accumulated in the area and that unless properly treated,
stored and removed, it constitutes a serious danger to ~~ environment.
Directions were given to the R.P .C.B. to arrange for its· transportation,
treatment and safe storage according to the technically accepted proce-
dures for disposal of chemical wastes of that kind. All reasonable expenses G
for the said operation were to be borne by Respondents Nos. 4 to 8
;;-.... [hereinafter referred to in this judgment as the "Respondents"]. So far as
the polluted water in the wells was concerned, the Court noted the offer
made by the learned counsel for the respondents that they will themselves
undertake the de-watering of the wells. The R.P.C.B. was directed to H
l
1
f
\

518 SUPREME COURT REPORTS [1996] 2 S.C.R.

A inspect and indicate the number and location of the wells to be de-watered.

The matter was next taken up on April 4, 1990. It was brought to the
notice of the Court that no meaningful steps were taken for removing the
sludge as directed by this Court in its Order dated March 5, 1990. Since
the monsoon was about to set in, which would have further damaged the
B earth and water in the area, the Court directed respondents to immediately -·
remove the sludge from the open spaces where it was lying and store it in
safe places to avoid the risk of seepage of toxic substances into the soil
during the rainy season. The respondents were directed to complete the
task within five weeks therefrom.
c
It is not really necessary to refer to the contents of the various Orders
passed in 1990 and 1991, i.e., subsequent to the Order dated April 4, 1990
for the present purposes. Suffice it to say that the respondents did not
comply with the direction to store the sludge in safe places. The de-water-
D ing of wells did not prove possible. There was good amount of bickering
between the respondents on one side and the R.P.C.B. and the Ministry of
Environment and Forests on the other. They blamed each other for lack
of progress in the matter of removal of sludge. Meanwhile, years rolled by
and the hazard continued to rise. NEERI submitted an interim Report.
[We are, however, not referring to the contents of this interim Report
E inasmuch as we would be referring to the contents of the final Report
presently after referring to a few more relevant orders of this Court.)

On February 17, 1992, this Court passed a fairly elaborate order
observing that Respondents Nos. 5 to 8 are responsible for discharging the
F hazardous industrial wastes; that the manufacture of 'H' acid has given rise
to huge quantities of iron sludge and gypsum sludge - approximately 2268
MT of gypsum-based sludge and about 189 mt. of iron-based sludge;-that
while the respondents blamed Respondent No. 9 as the main culprit,
Respondent No. 9 denied any responsibility therefor. The immediate con-
cern, said the Court, was the appropriate remedial action. The l'eport of
G the R.P.C.B. presented a disturbing picture. It stated that the respondents
have deliberately spread the hazardous material/sludge all over the place
which has only heightened the problem of its removal and that they have
failed to carry out the Order of this Court dated April 4, 1990. Accordingly,
the Court directed the Ministry of Environment and Forests, Government
H of India to depute its experts immediately to inspect the area to ascertain
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.O.I. [B.P. JEEVAN REDDY, J.) 519

the existence and extent of gypsum-based and iron-based sludge, to suggest A
the handling and disposal procedures and to prescribe a package for its
transportation and safe storage. The cost of such storage and transporta-
tion was to be recovered from the respondents.

Pursuant to the above Order, a team of experts visited the area and
B
submitted a Report alongwith an affidavit dated t:Aarch 30, 1992. The
report presented a highly disturbing picture. It stated that the sludge was
found inside a shed and also at four places outside the shed but within the
premises of the complex belonging to the respondents. It stated further that
sludge has been mixed with soil and at many places it is covered with earth.
A good amount of sludge was said to be lying exposed to sun and rain. The c
Report stated : "Above all, the extent of pollution in the ground water
seems to be very great and the entire acquifer may be affected due to the
pollution caused by the industry. The organic content of the sludge needs
to be analysed to assess the percolation property of the contents from the
sludge. It is also possible that the iron content in the sludge may be very D
high which may cause the reddish colouration. As the mother liquor
produced during the process (with pH-1) was highly acidic in nature and
was indiscriminately discharged on land by the unit, it is possible that this
might h_ave eroded soil and caused the extensive damage. It is also possible
that the organic contents of the mother liquor would have gone into soil E
with water together with the reddish colour." The Report also suggested
the mode of disposal of sludge and measures for re-conditioning the soil.

In view of the above Report, the Court made an order on April 6,

- 1992 for entombing the sludge under the supervision of the officers of the
Ministry of Environment and Forests, Government of India. Regarding
revamping of the soil, the Court observed that for this purpose, it might
become necessary to stop or suspend the operation of all the units of the
F

respondent but that, the Court said, requires to be examined f1,1rther.
G
The work of entombment of sludge again faced several difficulties.
While the respondents blamed the Government officers for the delay, the
Government officials blamed the said respondents of non-cooperation.
Several Orders were passed by this Court in that behalf and ultimately, the
work commenced. H
520 SUPREME COURT REPORTS [1996] 2 S.C.R. .,
A ORDERS PASSED IN 1993, FILING OF WRIT PETITION (C) NO. 76
OF 1994 BY RESPONDENT NO. 4 AND THE ORDERS PASSED
THEREIN:

With a view to find out the connection between the wastes and sludge
resulting from the production of 'H' acid and the pollution in the under-
B ground water, the Court directed· on 20th August, 1993, that samples
should be taken of the entombed sludge and also of the water from the
affected wells and sent for analysis. Environment experts of the Ministry
of Environment and Forests were asked to.find out whether the pollution
in the well water was on account of the said sludge or not. Accordingly,
C analysis was conducted and the experts submitted the Report on November
1, 1993. Under the heading "Conclusion", the report stated.:

"5.0. CONCLUSION

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

5.2. The groundwater is also contaminated due to discharge of
H-acid plant effluent as well as H-acid siudge/contaminated soil
E leachates as sh.own in the photographs and also supported by the
results. The analysis result revealed good correlation between the
colour of well water and Headd content in it. The analysis results
show high degree of impurities in sludge/soil and also in well water
which is a clear indication of contamination of soil and groundwa~er
F due to disposal of H~acid waste."

The report which is based upon th!!ir inspection of the area in September,
1993 revealed many other alarming features. It represents a commentary
on the attitude and actions of the respondents. In Para-2, under the
G heading "Site Observations & Collection of Sludge/Contaminated Soil
Samples", the following facts are stated :

"2.1. The Central team, dur.ing inspection of the premises of M/s.
HACL, observed that H-acid sludge (iron/gypsum) and con-
taminated soil are still lying at different places, as shown in Fig. I,
H within the industrial premises (Photograph 1) which are the left
I

\
"- INDIANCOUNCILFORENVIRO-LEGALACTIONv. U.O.I. [B.P.JEEYANREDDY,J.) 521

overs. The area, where the solar evaporation pond was existing A
with H-acid sludge dumped here and there, was observed to have
been levelled with borrowed soil (Photograph 2). It was difficult
to ascertain whether the sludge had been removed before filling.
However, there are visual evidences of contaminated soil in the
area.
B
moy-
2.2. As reported by the Rajasthan Pollution Control Board (RPCB)
representatives, about 720 tonnes out of the total contaminated soil
and sludge scraped from the sludge dump sites is disposed of in six
lined entombed pits covered by lime/flyash mix, brick soling and
concrete (Photographs 3 &.4). The remaining scraped sludge and c
contaminated soil was lying near the entombed pits for want of
additional djsposal facility. However, during the visit, the left over
sludge and contaminated soil could not be traced at site. Inspection
of the surrounding area revealed that a huge heap offoreign soil
of 5 metre height (Photograph 5) covering a large area, as also
indicated in Fig. 1, was raised on the slopy ground at the foot hill D
within the industry premises. The storm water run-off pathway over
the area showed indication of H-acid sludge leachate coming out
of the heap. Soil in the area was sampled for analysis.

2.3. Mis HACL has a number of other industrial units which are E
operating within the same premises without valid consents from the
Rajasthan Pollution Control Board (RPCB). These plants are
sulphuric acid (H2S04), fertilizer (SSP) and vegetable oil extrac-
tion. The effluent of these units are not properly treated and the
un~reated effluent particularly from the acid plant is passing through
the sludge dump area playing havoc (Photograph 7). The final F
effluent was collected at the outlet of the factory premises during
operation of these units, at the time of groundwater monitoring in
September 1993, by the RBPC. Its quality was observed to be highly
acidic (pH : 1.08), Conductivity : 37,100 mg/1, S04 : 21,000 mg/1,
Fe : 392 mg/1, COD : 167 mg/1) which was also revealed in the G
earlier visits of the Central teams. However, these units were not
in operation during the present visit."
.....__ Under Para 4.2.1, the report stated inter alia:

"The sludge sample from the surroundings of the (presently non-ex- H
"f
522 SUPREME COURT REPORTS [1996] 2 S.C.R. '._

A istent) solar evaporation and the contaminated soil due to seepage ..
\.
from the newly raised dump site also exhibited very high values of
the above mentioned parameters. This revealed that the con-
taminated soil is buried under the new dump found by the team."

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

In view of the aforesaid Reports, all of which unanimously point out
the consequences of the 'H' acid production, the manner in which the
C highly corrosive waste water (mother liquor) and the sludge resulting from
the production of 'H' acid was disposed of and the continuing discharge ·
of highly toxic effluents by the remaining units even in the year 1993, the
authorities [R.P.C.B.] passed orders closing down, in exercise of their /
powers under Section 33A of the Water Act, the operation of the Sulphuric
D Acid Plant and the solvent extraction Plant including oil refinery of the
fourth respondent with immediate effect. Orders were also passed direct-
ing disconnection of electricity supply to the said plants. The fourth .respon-
dent filed Writ Petition (C) No. 76 of 1994 in this Court, under Article 32
of the Constitution, questioning the said Orders in January, 1994. The main
grievance in this writ petition was that without even waiting for the
E petitioner's [Hindustan Agro Chemicals Limited] reply to the show-cause
notices,. orders of closure and disconnection of electricity supply were
passed and that this was done by the R.P.C.B. with a malafide intent to
cause loss to the industry. It was also submitted that sudden closure of its
plants is likely to result in disaster and, may be, an explosion and that this \
I
F consideration was not taken into account while ordering.the closure. In its
Order dated March 7, 1994, this Court found some justification in the
contention of the industry that the various counter-affidavits filed by the
R.P.C.B. are self-contradictory. The Board was directed to adopt a con-
structive attitude in the matter. By another Order dated March 18, 1994,
the R.P.C.B. was directed to examine the issue of grant of permission to
G re-start the industry or to permit any interim arrangement in that behalf.
On April 8, 1994, a 'consent' order was passed whereunder the industry
was directed to deposit a sum of Rupees sixty thousand with R.P.C.B.
before April 11, 1994 and the R.P.C.B. was directed to carry on the
construction work of storage tank for storing and retaining ten days ef-
H fluents from the Sulphuric Acid Plant. The construction of temporary tank ,
1

"
1
INDIAN COUNCIL FOR ENVIRO·LEGAL ACTION v. U.O.I. [B.P. JEE:"AN REDDY, J.] 523

was supposed to be an interim measure pending the construction of an A
E.T.P. on permanent basis. The Order dated April 28, 1994 noted the
Report of the R.P.C.B. stating that the construction of temporary tank was
completed ·on April 26, 1994 under its supervision. The industry was
directed to comply with such other requirements as may be pointed out by
R.P.C.B. for prevention and control of pollution and undertake any works
B
required in that behalf forthwith. Thereafter, the matter went into a slum-
ber until October 13, 1995.

NEERI REPORT:

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

At Page 7, the Report mentions the industrial wastes emerging from
the manufacture of 'H' acid. It reads :

"Solid wastes generated from H-acid manufacturing process are : E ·
Gypsum sludge produced during the neutralisation of acidic
solution with lime after nitration stage (around 6 tonnes/tonne
of H-acid manufactured).

Iron sludge produced during the reduction stage (around 0.5 F
tonnes/tonne of H-acid manufactured)

Gypsum sludge contains mostly calcium sulphate along with
sodium salts and organics. Iron sludge constitutes unreacted iron
powder, besides ferric salts and organics.
G
It is estimated that, for each tonne of H-acid manufactured, about
20 m3 of highly corrosive wastewater was generated as mother
liquor, besides the generation of around 2.0 m3 of wash water. The
mother liquor is characterised by low pH (around 2.0) and high
concentration of total dissolved solids (80 - 280 g/L). High COD H
J
524 SUPREME COURT REPORTS [1996] 2 S.C.R.

A of the wastewater (90 g/L) could be attributed to organics formed
during various stages of manufacture. These include nephthalene
trisulphonic acid, nitro nephthalene sulphonic acid, Koch acid and
H-acid, besides several other intermediates.':

At Pages 8 and 9, the Report describes the manner in which the
B sludge and other industrial wastes were disposed of by the respondents. It
states inter alia:

"The total quantities of wastes water and that of sludge generated
were around 8250 m3 and 2440 tonnes respectively for a produc-
c tion of .375 tonnes by Mis. Silver Chemicals Ltd. and M/s. Jyoti
Chemicals Ltd...... .

* Majority of sludge brought back from disposal sites located
outside the plant was transferred inside a covered shed.

D * The sludge lying in the plant premises was entombed in the
underground pit by RPCB as per the directions of the
Hon'ble Supreme Court. It may be mentioned that only 720
MT of sludge out of the estimated quantity of 2440 MT could
be entombed as the capacity of the underground tanks provided
. E by the industry for the pwpose was only to that extent.

* Remaining sludge and sludge mixed soil were, howeve1; present
in the plant premises as these could not be transfe"ed into
underground tanks. It has also been observed that only sludge
above the soil was removed from the six sites and transferred
F to the plant site. Subsurface soil of these sites appears to have
been contaminated as the soil has reddish colour akin to that
of the sludge.

* A fertilizer plant (single superphosphate), a sulphuric acid
plant and an oil extraction and oil refining plant were in
G operation in the same premises where H-acid was earlier
manufactured. The acidic wastewater (around pH I. 0) presently
generated from these units was flowing over the abandoned
dumpsite. 11tis leaches the sludge mixed soil from the aban-
doned dumpsite and the contaminated water flows by gravity
H towards east and finds its way into a nallah flowing through the
INDIAN COUNCIL FOR ENVIRO-LEGALACTION "· U.0.1. [B.P. JEEVAN REDDY, J.) 525

-..
"l
compound and conveys the contaminated water to an ilrigation
canal which oliginates from Udaisagar lake (Pate 1.4)."

(Emphasis added)
A

At Page 10, the Report mentions the six dump sites outside the 'H'
acid plant premises where the sludge was lying in the open. At Pages 26 B
and 27, the Report states on the basis of V.E.S. investigations that while
certain wells were found contaminated, others were not. At Page 96, the
Report states thus :

"Damage to Crops and Trees
c
The field surveys in contaminated fields in zone I and II showed
that no crops were coming in the fields paTticularly in low lying areas.
On some elevated areas, crops like jowar, maize were growing;
however the growth and yield were very poor.
D
Further it was also observed that even trees like eucalyptus planted
in contaminated fields show leaf burning and stunted growth. Many
1
old trees which were badly affected due to contamination are still
· growing under stress conditions as a result of soil contamination.

The top soils at the old dump sites outside the plant premises are E
still contaminated and require decontamination before the land is
used for other purposes.

It was observed that even after the operation of hauling the sludge
back to the industry premises, some sludge mixed soil was still lying
in the premises of a primary school (Table 1.1), which needs F
decontamination."

In Chapter-6, the Report mentions the remedial measures. Para 6.1,
titled "Introduction", states :

"As could be seen from the data reported in Chapters 4 and 5, the G
ground water and soils within 2 km from the plant have been

- contaminated. After critically scrutinising the data, it was con-
cluded that there is an urgent need to work out a decontamination
strategy for the affected area. This strategy includes the decon-
tamination of the soil, contaminated ground water and abandoned H
I
526 SUPREME COURT REPORTS (1996] 2 S.C.R. \

A dump sites .. This Chapter details the remedial measures that can
be considered for implementation to restore the environmental
quality of the affected area."
-
"-'-

The Chapter then sets out the various remedial measures, including
land treatment, soil washing, revegetation, control over the flow of the
B contaminated water to adjoining lands through canals, leaching Of soluble
salts, design of farm to development Agroforestry and/or forestry planta-
tion with salt tolerant crops/plants and ground water decontamination.
Inter alia, the Report states :

c "The entire contaminated area compnsmg of 350 ha of con-
taminated land and six abandoned dump sites outside the industrial
premises has been found to be ecologically fragile due to reckless
past disposal activities practiced by M/s. Silver Chemicals Ltd. and
M/s. Jyoti Chemicals Ltd. Accordingly, it is suggested that the
whole of the contaminated area be developed as a green belt at
D the expense of M/s. Hindustan Agrochemicals Ltd. during the
monsoon of 1994."

Under Para 6.3~2., the Report suggests "Decontamination Alterna-
tives for Groundwater" including Bioremediation, Degradation of H-acid
E by Azotobacter Vinelandii, Isolation of Bacterial Population from H-acid
Contaminated Soil and several other methods.

Under Para 6.4.2, the Report mentions the several decontamination
.alternatives including containment of contaminated soil, surface control,
ground water control, leachate collection and treatment, gas migration
F control and direct waste treatment.

At Pages 157 and 158, the report mentions the continuing discharge
of effluents in an illegal and dangerous manner. It reports :

"It was also observed by NEERl's team during the current study
G that the industry has not provided adequate effluent treatment
facilities and the wastewaters (pH 1.5) from the existing plants
(Sulphuric acid, Fertilizer, and Oil extraction) are being dis-
charged, without treatment, on land within the plant premises. This
indiscriminate and willful disposal activity is further aggravating the
H· contamination problem in the area. Acidic effluent leaches the pol-
/

\
INDIAN COUNCIL FOR ENVIRO-LEGALACTION v. U.0.1. [B.P. JEEVAN REDDY, J.J 527

lutants from the dumped sludge and the contaminated soil and A
facilitates th Cir penetration through the ground and thereby increas-
ing the concentration of sulphates and dissolved solids in
groundwater. What is most selious is the fact that the indust1y
pro,duced chlorosulfonic acid for a few months during late 1992
which is a hazardous and toxic substances as per MEF Notification B
titled 'Manufacture, Storage and Import of Hazardous Chemical
Rules, 1989' and even floated public shares for the manufactures
of this obnoxious chemical. The production was however ceased due
to the intervention of the Rajasthan Pollution Control Board in
December 1992 as the industry was operating without obtaining site
clearance, No Objection Certificate (NOC)!Consent from the con- C
cemed appropriate regularity (regulatory?) auth01ities and without
providing for any pollution control measures. it is, therefore, essen-
tial for M/s. Hindustan Agrochemicals Ltd. to comply with these
requirements for carrying out the present industrial activities. The
abatement of further contamination wa1Tants the closure of all in- D
dustrial operations. till an appropriate effluent treatment plant is
installed, and certified by RPCB for its functionality in keeping
with the provisions of Water Act."

The Report adds :
E
"The Industry management in the past [during 1988-89] has shown
scant respect for Pollution Control and Environment Protection
Acts. Not only this, the management continues industrial activity
producing obnoxious waste waters and dumping the same without
any treatment, contaminating land and ground water without any
concem for ecology and public health. It is necessary that the
provisions of relevant legislations are imposed on the- industry to
avoid environmental damage and harm to public welfare."

(Emphasis added)
G
We do not think that the above Report requires any emphasis at our
hands. It speaks for itself - and it speaks volumes of the 'high regard' the
respondents have for law!

-- At Pages 179 onwards, the Report refers to the damage to the crops
and the land and to the psychological and mental torture inflicted upon H
'('

. f
528 SUPREME COURT REPORTS [1996] 2 S.C.R.,

A the villagers by the respondents and suggests that the principle of 'Polluter
Pays' should be applied in this case inasmuch as "the incident involved
deliberate release of untreated acidic process wastewater and negligent han-
dling of waste sludge knowing fully well the implif:ation of such acts." The
Report suggest that compensation should be paid under two heads, viz.,
(a) for the losses due to damage and (b) towards the cost of restoration of
B environmental quality. It then works out the total cost of restoration of
environmental quality at Rs. 3738.5 lakhs - i.e., Rs. 37.385 crores.

Para 7.4. states the conclusions flowing from the material in Chap-
ter-6 thus:
c "The cost of damage to be disbursed to the affected villagers is
estimated at Rs. 342.8 lakhs and remediation of impacted well
waters and soil at Rs. 3738.5 lakhs. This cost needs to be borne by
the management of the industry in keeping with the Polluter Pays
principle and the doctrine of Strict/Absolute liability, as applied
D to Sri Ram Food and Fertilizers Industry in the case of Oleum leak
in 1985."

REPORT OF R.P.C.B. SUBMITTED IN JANUARY, 1996 DURING THE
FINAL HEARING OF THESE MATTERS:
E When all these matters were posted before the Court on October 13,
1995, we realised that the matter requires to be heard on a priority basis.
Having regard to the voluminous data gathered by this Court and the
several Orders passed from time to time, the matter was listed for regular
hearing. We heard all the parties at length on 10th, 11th, 16th and 17th
F January, 1996. We have been taken through the voluminous record. Sub-
missions have also been made on the questions of law arising herein.

At the end of the first day of regular hearing, we made an Order
calling upon the R.P.C.B. to send a team of high officiais to the spot and
G report to us the latest position on the following aspects : .

(i) Whether the factories of Silver Chemicals, Rajasthan Multi Fer-
tilizers and Joyti Chemicals are still working and whether the machinery
installed in the said plant is still existing? [This information was required
to check the statement of the respondents that the said units are lying
H closed since last several year,s.]
•
"
\
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION" U.0.1. (B.P. JEEVAN REDDY, J.) 529

(ii) To report whether the factory or factories of Respondent No. 4, A
Hindustan Agro-Chemicals Limited, are working and if they are working,
what are the products being manufactured by them? The Board was also
directed to report whether the seventh respondent, Phosphate India, which
was said to have merged with the fourth respondent, is having a separate
factory and if so, what is being produced therein?
B
(iii) The approximate quantity of sludge - whether 'iron sludge' or
'gypsum sludge' - lying in the area. The report was to indicate what quantity
was entombed pursuant to the Orders of this Court and whether any
further sludge was lying in the area or in the premises of the respondents'
complex, its approximate quantity and the time, effort and cost required c
to remove the same.

(iv) The Board was also to take samples of the water in wells and
tanks in the area and have them analysed and tell us whether it is fit for
drinking by cattle and/or fit for irrigation purposes.
D
Accordingly, the R.P.C.B. officials visited the site and have filed a
Report dated January 16, 1996 along with an affidavit. The Report dis-
Closes the following facts :

(1) The two units, Silver Chemicals and Jyoti Chemicals, do not exist E
now. There is no machinery. A godown and a Ferric Alum plant have been
constructed at the site of the said plant. The Ferric Alum plant was not in
operation at the time of inspection though plant and machinery for
manufacturing it was found installed therein. Certain old stock of Ferric
Alum was also found lying within the plant premises_
F
(2) Hindustan Agro-Chemicals Limited [R-4] has seven industrial
plants-, viz., Rajasthan Multi Fertilizers [manufacturing Grannulated Single
Super Phosphate (G.S.S_P.)], a Sulphuric Acid Plant, a Chlorosulphonic
Acid Plant, Edible Oil Solvent Extraction Plant, Edible Oil Refinery and
a Ferric Alum Plant (known as M/s. Jyoti Chemicals), all of which are G
located within the same premises. All these seven plants were found not
operating on the date of inspection by the R_P_C.B. officials though in many
cases the machinery and the other equipment was in place. So far as the
sludge still remaining h the area is concerned, the report stated :

"3. Village Bicchidi and other adjoining areas were visited by the H
530 SUPREME COURT REPORTS (1996] 2 S.C.R.

A undersigned officials to know whether gypsum and iron sludge is
still lying in the aforesaid area. In area adjoining the irrigation
<-
canal, sludge mixed with soil were found on an area of about 3000
sq. ft. The area was covered with foreign soil. Sample of the sludge
mixed soil was collected for the perusal of the Hon'ble Court.
Entire premises of Mis Hindustan Agro Chemicals Ltd. was also
B inspected and sludge mixed with soil was observed in a large area.
It was further observed that fresh soil in the varying depth has been
spread over in most of the area. In view of the fact that sludge was
mixed with the soil and difficult to separate out of the soil it is very
difficult to estimate the exact quantity of the sludge required to be
c removed. Samples of sludge mixed with soil were collected from
different part of this area after serving due notices under Environ-
ment Protection Act, 1986."

So far as the water in the wells was concerned, the Report mentioned that
D they took samples from the wells from Bichhri and other surrounding
villages, i.e., from thirty two different locations and that water in sixteen
locations was found to "contain colour of varying intensities ranging from
very dark brown to light pink which apparently shows that these
wells/handpumps are still polluted".

E Sri K.N. Bhat, learned counseJ for the respondents, however, sub-
mitted that the R.P.C.B. officials have throughout been hostile to the
respondents and that, therefore, the Reports submitted by them should not
be acted upon. He also submitted that respondents have had no oppor-
tunity to file objections to the said Report or to produce material to
F . contradict the statements made therein. While taking note of these submis-
sions, we may, however, refer to the letter dated January 13, 1996 written
by the fourth respondent to the R.P.C.B. In this letter, the particulars of
the stocks remaining in each of its seven plants are mentioned along with
the date of the last production in each of those plants. The last dates of
production are the following : Sulphuric Acid Plant - November 10, 1995,
G S.S.P. Plant [Phosphate India] - November 11, 1995, G.S.S.P. Plant [Rajas-
than Multi Fertilizers] - July 7, 1995, Solvent Extraction Plant and Refinery
- December 2, 1993,-Jyoti Chemicals - October, 1990 and Chlorosulphonic
Acid Plant -September 29, 1995. It is worthy of note that these dates are
totally at variance with the dates of closure mentioned in the counter-af-
H fidavits filed by these units in 1990~9f.
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.0.1. [B.P. JEEVAN REDDY, J.) 531

CONTENTIONS OF THE PARTIES: A

Sri M.C. Mehta, learned counsel appearing for the petitioner,
brought to our notice the several Reports, orders and other material on
record. He submitted that the abundant material on record clearly estab-
lishes the culpability of the respondents for the devastation in village
Bichhri and surrounding areas and their responsibility and obligation to
B
properly store the remaining sludge, stop discharge of all untreated ef-
fluents by taking necessary measures and defray the total cost required for
remedial measures as suggested by NEERI [Rupees forty crores and odd].
Learned counsel suggested that in view of the saga of repeated and
continuous violation of l~w and lawful orders on the part of the respon- c
dents, they must be closed forthwith. So far as the legal propositions are
concerned, the learned counsel relied strongly upon the Constitution
Bench decision in M.C. Mehta v. Union of India (Oleum Gas Leak Case),
(1987) 1 SCC 395 as well as the recent Order of this Court in Indian Council
for Enviro-Lega/ Action v. Union of India, (1995) 5 SCALE 578. Learned D
counsel also invited our attention to quite a few foreign decisions and text
books on the subject of environment. Sri Altaf Ahmed, learned Additional
Solicitor General appearing for the Union of India, also stressed the need
for urgent appropriate directions to mitigate and remedy the situation on
the spot in the light of the expert Reports including the one made by the
central team of experts. E

The learned counsel for the State of Rajasthan, Sri Aruneshwar
Gupta, expressed the readiness of the State Government to carry out and
enforce such orders as this Court may think fit and proper in the cir-
cumstances. F
Sri K.B. Rohtagi, learned counsel for the R.P.C.B., invited our atten-
tion to the various orders passed, action taken, cases instituted and Reports
submitted by the Board in this matter. He submitted that until recently the
Board had no power to close down any industry for violation of environ-
mental laws and that after conferment of such power, they did pass orders G
of closure. He denied the allegations of malaftdes or hostile intent on the
part of the Board towards the respondents. Learned counsel lamented that
despite its best efforts, the Board has not yet been successful in eradicating
the pollution in the area and hence asked for stringent orders for remedy-
ing the apalling conditions in the village due to the acts of the respondents. H
.<
,.J

532 SUPREME COURT REPORTS [1996] 2 S.C.R.

A Sri K.N. Bhat, learned counsel for the respondents, made the follow-
ing submissions :

(1) The respondents are private corporate bodies. They are not
'State' within the meaning of Article 12 of the Constitution. A writ petition
under Article 32 of the ~onstitution, therefore, does not lie against them.
B
(2) The R.P.C.B. has been adopting a hostile attitude towarqs these
respondents from the very beginning. The Reports submitted by it ~r
obtained by it are, therefore, suspect. The respondents had no opportunity
to test the veracity of the said Reports. If the matt~r had been fought out
c in a properly constituted suit, the respondents would have had an oppor-
tunity to cross-examine the experts to establish that their Reports are
defective and cannot be relied upon.

(3) Long before the respondents came into existence, Hindustan
Zinc Limited was already in existence close to Bichhri village and has been
D discharging toxic untreated effluents in an unregulated Jllanner. This had
affected the water in the wells, streams and acquifers. This is borne out by
the several Reports made long prior to 1987. Blaming the respondents for
the said pollution is incorrect as a fact and unjustified.

(4) The respondents have been cooperating with this Court in all
E matters and carrying out its directions faithfully. The report of the R.P.C.B.
dated November 13, 1992 shows that the work of entombment of the sludge
. was almost over. The Report states that the entire sludge would be stored
in the prescribed manner within the next two days. In view of this report,
the subsequent Report oJ the Central team, R.P.C.B. and NEERI cannot
F be accepted or relied upon. There are about 70 industries in India
manufacturing 'H' acid. Only the units of the respondents have been picked
upon by the Central and State authorities while taking no action against
the other units. Even in the matter of disposal of sludge, the directions
given for its disposal in the case of other units are not as stringent as have
G been prescribed iti the case of respondents. The decision of the Gujarat
High Court in Pravinbhai Jashbhai Patel shows that the method of disposal
prescribed there is different and less elaborate than the one prescribed in
this case.

(5) The Reports submitted by the various so-called expert commit-
H tees that sludge is still lying around within and outside the respondents'
INDIAN COUNCIL FOR ENVIRO-LEGALACTION v. U.0.1. [B.P . .TEEVAN REDDY, J.] 533

complex and/or that the toxic wastes from the Sulphuric Acid Plant are A
flowing through and leaching the sludge and creating a highly dangerous
situation is untrue and incorrect. The R.P.C.B. itself had constructed a
temporary E.T.P. for the Sulphuric Acid Plant pursuant to the Orders of
this Court made in Writ Petition (C) No. 76 of 1994. Subsequently, a
permanent E.T.P. has also been constructed. There is no question of
B
untreated toxic discharges from this plant leaching with sludge. There is
no sludge and there is no toxic discharge from the Sulphuric Acid Plant.

(6) The case put forward by the R.P.C.B. that the respondents' units
do not have the requisite permits/consents required by the Water Act, Air
Act and the Environment [Protection] Act is again unsustainable in law C
and incorrect as a ·fact. The respondents' units were established before the
amendment of Section 25 of the Water Act and, therefore, did not require
any prior consent for their establishment.

(7) The proper solution to the present problem lies in ordering a
comprehensive judicial enquiry by a sitting Judge of the High Court to find D
out the causes of pollution in this village and also to recommend remedial
measures and to estimate the loss suffered by the public as well as by the
respondents. While the respondents are prepared to bear the cost of
repairing the damage, if any, caused by them, the R.P.C.B. and other
authorities should be made to compensate for the huge losses suffered by E
the respondents on account of their illegal and obstructionist policy
adopted towards them.

(8) The decision in Oleum Gas Leak case has been explained in the
opinion of Ranganath Misra, CJ., in the decision in Union Carbide Cor-
poration V. Union of India, [1991) 4 sec 584. The law laid down in Oleum F
Gas Leak case is at variance with the established legal position in other
Commonwealth countries.

Sri Bhat suggested that in the larger interests of environment, in-
dustry and public, this Court may direct the Government of India to G
constitute, by proper legislation, environment courts all over the country -
which courts alone should be empowered to deal with such cases, to give
appropriate directions including orders of closure of industries wherever
necessary, to make necessary technical and scientific investigations, to
suggest remedial measures and to oversee their implementation. Proceed-
ings by way of a writ in this Court under Article 32 or in the High Court H
\
i
534 SUPREME COURT REPORTS [1996] 2 S.C.R.

A under Article 226, the learned counsel submitted, are not appropriate to
deal with such matters, involve as they do several disputed questions of fact
-
and technical issues.

Before we proceed to deal with the submissions of the learned
counsel, it would be appropriate to notice the relevant provisions of law.
B
RELEVANT STATUTORY PROVISIONS:

Article 48A is one of the Directive Principles of State Policy. It says
that the State shall endeavour to protect and improve the environment and
to safeguard the forests and wildlife of the country. Article 51A sets out
c the fundamental duties of the citizens. One of them is "(g) to protect and
improve the natural environment including forests, lakes, rivers and wild
life and to have compassion for livin1roreatures ...... ".

The problem of increasing pollution of rivers and streams in the
D country - says the Statement of Objects and Reasons appended to the Bill
which became the Water [Prevention and Control of Pollution] Act, 1974
- attracted the attention of the State Legislatures and the Parliament. They
realised the urgency of ensuring that domestic and industrial effluents are
not allowed to be discharged into water courses without adequate· treat-
ment and that pollution of rivers and streams was causing damage to the
E country's economy. A committee was set up in 1962 to draw a draft
ena~tment for prevention of water pollution. The issue was also considered
by the Central Council of Local Self-Government in September, 1963. The
· ·. Council suggested the desirability of having a single enactment for the
purpose. A draft Bill was prepared and sent to various States. Several
p expert committees also made their recommendations meanwhile. Since an
enactment on the subject was relatable to Entry 17 read with Entry 6 of
List-I~ in the Seventh Schedule to the Constitution - and, therefore, within
the exclusive domain of the States - the State Legislatures of Gujarat,
Kerala, Haryana and Mysore passed resolutions as contemplated by Article
252 of the Constitution enabling the Parliament to make a law on the
G subject. On that basis, the Parliament enacted the Water [Prevention and
Control of Pollution] Act, 1974. [The State of Rajasthan too passed the
requisite resolution.] Section 24(1) of the Water Act provides that "subject
to the provisions of this section, (a) no person shall knowingly cause or
permit any poisonous, noxious or polluting matter determined in ~ccord-
H ance with such standards as may be laid down by the State Board to enter
\'

~
INDIAN COUNCIL FOR ENVJRO-LEGAL ACTION v. U.0.1. [RP. JEEVAN REDDY. J.] 535

whether (directly or indirectly) into any stream or well .... ". Section 25(1), A
before it was amended by Act 53 of 1988, provided that "(1) subject to the
provisions of this section, no person shall, without the previous consent of
the State Board, bring into use any new or altered outlet for the discharge
of sewage or trade effluent into a stream or well or begin to make any new
discharge of sewage or trade effluent into a steam or well." As amended
B
by Act 53 of 1988, Section 25 now reads : "25(1) Subject to the provisions
of this section, no person shall without the previous consent of the State
Board, (a) establish or take any steps to establish any industry, operation
or process or any treatment and disposal system or an extension or an
addition thereto, which is likely to discharge sewage or trade effluent into

-- a stream or well or sewer or on land [such discharge being hereafter in this
section referred to as 'discharge of sewage']; er (b) bring into use any new
or altered outlets for the discharge of sewage or (c) begin to make any new
discharge of sewage ..... ". [It is stated that the Rajasthan Assembly passed
resolution under Article 252 of the Constitution adopting the said amend-
c

ment Act vide Gazette Notification dated may 9, 1990.J Section 33 em- D
powers the Pollution Control Board to apply to the court, not inferior to
that of a Metropolitan Magistrate or a Judicial Magistrate of the First
Class, to restrain any person causing pollution if the said pollution is likely
to prejudicially affect water in a stream or a well. Section 33A, which has
been introduced by Amendment Act 53 of 1988, empowers the Board to
order the closure of any industry and to stop the electricity, water and any E
other service to such industry if it finds such a direction necessary for
effective. implementation of the provisions of the Act. Prior to the said
amendment Act, the Pollation Control Board had no such power and the
course open to it was to make a recommendation to the Government to
pass appropriate orders including closure. F
The Air [Prevention and Control of Pollution] Act, 1981 contains
similar provisions.

In the year 1986, Parliament enacted a comprehensive legislation,
Environment (Protection) Act. The Act defines "environment" to include G
"water, air and land and the inter-relationship which exists among and
between water, air and land and human beings, other living creatures,
plants, micro-organison and property." The preamble to the Act recites
that the said Act was made pursuant to the decisions taken at the United
Nations Conference on the Human Environment held at Stockholm in H
1
I
,I

536 SUPREME COURT REPORTS [1996] 2 s.c.R.

A June, 1972 in which India also participated. Section 3 empowers the
Central Government "to take all such ineasures as it deems necessa1y or
expedient for the pwpose of protecting and improving the quality of the
environment and preventing, controlling and abating environmental pollu-
tion". Sub-section (2) elucidates the several powers inhering in Central
government in the matter of protection and promotion of environment.
B
Section 5 empowers the Central Government to issue appropriate direc-
tions to any person, officer or authority to further the objects of the
enactment. Section 6 confers rule-making power upon the Central Govern-
ment in respect of matters referred to in Section 3. Section 7 says that "no
person carrying on any industry, operation or process shall discharge or
c emit or permit to be discharged or emitted any environmental pollutant in
excess of such standards, as may be prescribed".

The Central Government has made the Hazardous Wastes (Manage-
ment and Handling) Rules, 1989 in exercise of the power conferred upon
D it by Section 6 of the Environment (Protection) Act prescribing the manner
in which the hazardous wastes shall be collected, treated, stored and
disposed of.

CONSIDERATION OF THE SUBMISSIONS:

E Taking up the objections urged by Sri Bhat first, we find it difficult
to agree with them. This writ petition is not really for issuance of ap-
propriate writ, order or directions against the respondents but is directed
against the Union of India, Government of Rajasthan and R.P.C.B. to
compel them to perform their statutory duties enjoined by the Acts
-
F aforementioned on the ground that their failure to carry out their statutory
duties is seriously undermining the right to life [of the residents of Bichhri
and the affected area] guaranteed by Article 21 of the Constitution. If this
Court finds that the said authorities have not taken the action required of
them by law and that their inaction is jeopardising the right to life of
citizens of this country or of any section thereof, it is the duty of this court
G to intervene. If it is found that the respondents are flouting the provisions
of law and the directions and orders issued by the lawful authorities, this
Court can certainly make appropriate directions to ensure compliance with-
law and lawful directions made thereunder. This is a social action litigation
on behalf of the villagers of Bichhri whose right to life, as elucidated by
H this Court in several decisions, is invaded and seriously infringed by the
~- INDIAN COUNCIL FOR ENVIRO-LEGALACTION v. U.O.I. [B.P. JEEVAN REDDY.J.] 537

respondents as is established by the various Reports of the experts called A
for, and filed before, this Court. If an industry is established without
obtaining the requisite permission and clearances and if the industry is
continued to be run in blatant disregard of law to the detriment of life and
liberty of the citizens living in the vicinity, can it be suggested with any
modicum of reasonableness that this Court has no power to intervene and B
protect the fundamental right to life and liberty of the citizens of this
country. The answer, in our opinion, is self-evident. We are also not
convinced of the plea of Sri Bhat that R.P.C.B. has been adopting a hostile
attitude towards his clients throughout and, therefore, its contentions or
the Reports prepared by its officers should not be relied upon. If the
respondents establish and operate their plants contrary to law, flouting all
c
safety norms provided by law, .the R.P.C.B. was bound to act. On that
account, it cannot be said to be acting out of animus or adopting a hostile
attitude. Repeated and persistent violations call for repeated orders. That
is no proof of hostility. Moreover, the Reports of R.P.C.B. officials are fully
corroborated and affirmed by the Reports of central team of experts and D
of NEER!. We are also not prepared to agree with Sri Bhat that since the
Report of NEERI was prepared at the instance of R.P.C.B., it is suspect.
This criticism is not only unfair but is also uncharitable to the officials of
NEERI who have no reason to be inimical to the respondents. If, however,
the actions of the respondents invite the concern of the experts and if they E
depict the correct situation in their Reports, they cannot be accused of any
bias. Indeed, it is this court that asked NEERI to suggest remedial
measures and it is in compliance with those orders that NEERI submitted
its interim Report and also the final Report. Similarly, the objection of Sri
Bhat that the Reports submitted by the NEERI, by the Central team
F
(experts from the Ministry of Environment and Forests, Government of
India] and R.P.C.B. cannot be acted upon is equally unacceptable. These
Reports were called by this Court and several Orders passed on the basis
of those Reports. It was never suggested on behalf of Respondents Nos. 4
to 8 that unless they are permitted to cross-examine the experts or the
persons who made those Reports, their Reports cannot be acted upon. This G
objection, urged at this late stage of proceedings - after a lapse of several
years - is wholly unacceptable. The persons who made the said Reports are
all experts in their field and under no obligation either to the R.P.C.B. or
for that matter to any other person or industry. It is in view of their
independence and competence that their Reports were relied upon and H
,/
!
538 SUPREME COURT REPORTS (1996] 2 S.C.R.

A made the basis of passing Orders by this Court from time to time.

Now coming to the question alleged pollution by Hindustan Zinc
Limited (R-9], it may be that Respondent No. 9 is also responsible for
discharging untreated effluents at one or the other point of time but that
is not the issue we are concerned with in these writ petitions: These writ
B petitions are confined to the pollution caused in Bichhri village on account
of the activities of the respondent. No Report among the several Reports
placed before us in these proceedings says that Hindustan Zinc Limited is
responsible for the pollution at Bichhri village. Sri Bhat brought to our
notice certain Reports stating that the discharges from Hindustan Zinc
C Limited were causing pollution in certain villages but they are all down
stream, i.e., to the north of Bichhri village and we are not concerned with
the pollution in those village~ in these proceedings. The bringing in of
-
Hindustan Zinc Limited in these proceedings is, therefore, not relevant. If
necessary, the pollution, if any, caused by Hindustan Zinc Limited can be
D tlie subject-matter of a separate proceeding.

We may now deal with the contentions of Sri Bhat based upon the
affidavit of R.P.C.B. dated November 13, 1992 which has been repeatedly
and strongly relied upon by the learned counsel in support of his submis-
sion that the entire sludge has been properly stored by or at the expense
E of his clients. It is on the basis of this affidavit that Sri Bhat says that the
subsequent Reports submitted showing the existence of sludge within and
outside their complex should not be accepted or acted upon. Let us turn
to the affidavit of R.P.C.B. dated November 13, 1992 and see how far does
it support Sri Bhat's contention. It is in Para 2(b) that the sentence, strongly
F relied upon by Sri Bhat occurs, viz., "remaining work is likely to be
completed by 15th November, 1992". For a proper appreciation of the
purport of the said sentence, it would be appropriate to read the entire
Para 2(b), which is to the following effect: "(b) that all the six tanks have
been entombed with brick toppings. Roofing is complete on all tanks which
have also been proyided with proper outlets for the exit of gases which may
G form as a result of possible chemical reactions in the sludge mass. The
tanks have also been provided with reinforced concrete to prevent broop-
ing of the roof. Remaining work is likely to be completed by 15th Novem-
ber, 1992." We find it difficult to read the said sentence as referring to the
storage of th~ remaining about 1700 MT of sludge. When the storage of
H 720 MT itself took up all the six tanks provided by the respondent, where
INDIAN COUNCIL FOR ENVIRO-LEGALACTION v. U.0.L [B.P. JEEVAN REDDY, J.) 539

was the remaining 1700 tonnes stored? Except relying upon the said A
sentence repeatedly, Sri Bhat has not been able to tell us where this 1700
MT has been stored, whether in tanks and if so, who constructed the tanks
and when and how were they covered and sealed. He is also not able to
tell us on what dates the remaining sludge was stored. It is evident that the
aforesaid sentence occurring in clause 2(b) refers to the proper sealing and
B
completion of the said tanks wherein 720 MT of sludge was stored. If, in
fact, the said 1700 MT has also been entombed, it was not difficult for the
respondents to give the particulars of the said storage. We are, therefore,
unable to agree with Sri Bhat that the subsequent Reports which repeatedly
and uniformly speak of the presence of sludge within and outside the
complex of the respondents should not be accepted. It may be recalled that c
the Report of the team of Central Experts was submitted on November 1,
1993 based upon the inspection made by them in September/October, 1993.
To the same effect is the affidavit of R.P.C.B. dated October 30, 1993 and
the further affidavit dated December 1, 1993. These Reports together with
the report of NEERI Clearly establish that huge quantities of sludge were D
still lying around either in the form of mounds or placed in depressions,
or spread over the contiguous areas and covered with local soil to conceal
its existence. It is worth reiterating that the said sludge is only part of the
pernicious discharges emanating from the manufacture of 'H' acid. The
other part, which is unfortunately not visible now [except in its deleterious
effects upon the soil and underground water] is the 'mother liquor' E

--
produced in enormous quantities which has either flowed out or percolated
into the soil.

So far as the responsibility of the respondents for causing the pollu-
tion in the wells, soil and the acquifers is concerned, it is clearly established F
by the analysis Report referred to in the Report of the Central Experts
team dated November 1, 1993 [Page 1026 of Vol. II]. Indeed, number of
Orders passed by this Court, referred to hereinbefore, are premised upon
the finding that the respondents are responsible for the said pollution. It
is only because of the said reason that they were asked to defray the cost
of removal and storage of sludge. It is precisely for this reason that, at one G
stage, the respondents had also undertaken the de-watering of polluted
wells. Disclaiming the responsibility for the pollution in and around Bichhri
village, at this stage of proceedings, is clearly an afterthought. We accord-
ingly held and affirm that the respondents alone are responsible for all the
damage to the soil, to the underground water and to the village Bichhri in H
.(
j
540 SUPREME COURT REPORTS [1996) 2 S.C.R.

A general, damage which. is eloquently portrayed in the several Reports of
the experts mentioned hereinabove. NEER! has worked out the cost for
repairing the damage at more than Rupees forty crores. Now, the question
is whether and to what extent can the respondents be made responsible for
defraying the cost of remedial measures in these proceedings under Article
32. Before we advert to this question, it may perhaps be appropriate to
B clarify that so far as removal of remaining sludge and/or the stoppage of
discharge of further toxic wastes are concerned, it is the absolute respon-
sibility of the respondents to store the sludge in a· proper manner [in the
same manner in which 720 MT of sludge has already been stored) and to
stop the discharge of any other or further toxic wastes· from its plants
C including Sulphuric Acid Plant and to ensure that the wastes discharged
do not flow into or through the sludge. Now, turning to the question of
liability, it would be appropriate to refer to a few decisions on the subject.

In Oleum Gas Leak case, a Constitution Bench discussed this ques-
D tion at length and held thus :

"We are of the view that an enterprise which is engaged in a
hazardous or inherently dangerous industry which poses a potential
threat to the health and safety of the persons working in the factory
and residing in the surrounding areas owes an absolute and non-
E delegable duty to the community to ensure that no harm results to
anyone on account of hazardous or inherently dangerous. nature
of the activity which it has undertaken. The enterprise must be
held to be under an obligation t<? provide that the hazardous or
inherently dangerous activity in which it is engaged must be con-
---
F ducted with the highest standards of safety and if any harm results
on account of such activity, the enterprise must be absolutely liable
to compensate for such harm and it should be no answer to the
enterprise to say that it had taken all reasonable care and that the
harm occurred without any negligence on its part. Since the per-
sons harmed on account of the hazardous or inherently dangerous
G activity carried on by the enterprise would not be in a position to
isolate the process of operation from the hazardous preparation
of substance or any other related element that caused the harm
the enterprise must be held strictly liable for causing such harm
as a part of the social cost for carrying on the hazardous or
H inherently dangerous activity. If the enterprise is permitted to carry
INDIAN COUNCIL FOR ENVIRO-LEGALACDON "· U.0.1. [B.P. JEEVAN REDDY, J.J 541

on an hazardous or inherently dangerous activity for its profits, the A
law must presume that such permission is conditional on the
enterprise absorbing the cost of any accident arising on account
of such. hazardous or inherently dangerous activity as an ap-
propriate item of its overheads. Such hazardous or inherently
dangerous activity for private profit can be tolerated only on
B
condition that the enterprise engaged in such hazardous or in-
herently dangerous activity indemnifies all those who suffer on
account of the carrying on of such hazardous or inherently
dangerous activity regardless of whether it is carried on carefully
or not .......... We would therefore hold that where an enterprise
is engaged in a hazardous or inherently dangerous activity and c
harm results to anyone on account of an accident in the operation
of such hazardous or inherently dangerous activity resulting for
example, in escape of toxic gas the enterprise is strictly and
absolutely liable to compem~te all those who are affected by the
accident and such liability is not subject to any of the exceptions D
which operate vis-a-vis the tortious principle of strict liability under
the rule in Ryland v. Fletcher [supra] ..

We would also like to point out that the measure of compen-
sation in the kind of cases referred to in the preceding paragraph
must be correlated to the magnitude and capacity of the enterprise E
because such compensation must have a deterrent effect. the larger
and more prosperous the entire, greater must be the amount of
compensation payable by it for the harm caused on account of an
accident in the carrying on of the hazardous or inherently
dangerous activity by the enterprise."
F
Sri Bhat, however, points out that in the said decision, the question
whether the industry concerned therein was a 'State' within the meaning of
Article 12 and, therefore, subject to the discipline of Part-III of the
Constitution including Article 21 was left open and that no compensation
as such was awarded by this Court to the affected persons. He relies upon G
the observations in the concurring opinion of Ranganath Misra, CJ., in
Union Carbide Corporation (1991] 4 SCC 584. The learned Chief Justice,
referred in the first instance, to the propositions enunciated in Oleum Gas
Leak case and then made the following observations in Paras 14 and 15:

"14. In M.C. Mehta case, no compensation was awarded as this H
542 SUPREME COURT REPORTS [1996] 2 S.C.R. '

A Court could not reach the conclusion that Shriram (the delinquent
comI?any) came within the meaning of 'State' in Article 12 so as
to be liable to the discipline of Article 21 and to be subjected to
a proceeding under Article 32 of the Constitution. Thus what was
said was essentially obiter.

B 15. The extracted part of the observations from M.C. Mehta case
perhaps is a good guidelines for working out compensation in the
cases to which the ratio is intended to apply. The statement of the
law ex-facie makes a departure from the accepted legal position
in Rylands v. Fletcher. We have not been shown any binc}ing
c precedent from the American Supreme Court where the ratio of
M.C. Mehta decision has in terms been applied. In fact Bhagwati,
C.J., clearly indicates in the judgment that his view is a departure
from the law applicable to western countries."

The majority judgment delivered by M.N.Venkatachaliah, J. [on be-
D llalf of himself and two other learned Judges] has nQt expressed any
opinion on this issue. We on o~r part find it difficult to say, with great
respect to the learned Chief Justice, that the law declared in Oleum Gas
Leak case is obiter. It does not appear to be unnecessary for the purposes
I of that case. Having declared the law, the Constitution Bench directed the
E parties and other organisations to institute actions on the- basis of the law
so declared.* Be that as it may, we are of the considered opinion that even
if it is assumed [for the sake of argument] that this Court cannot award
damages against the respondents in these proceedings that does not mean
* A distinction between the Oleum Gas Leak case and the present case may be noticed.
That was not a case where the industry was established or was being operated contrary
F to law as in the present case. That was also not a case where the orders of lawful ·
authorities and Courts were violated with impunity as in this case. In this case, there
is a clear violation of law and disobedience to the Orders of this Court apart from the
orders of the lawful authorities. The facts stated above and findings recorded by us
hereinafter bear it out. This Court has to ensure the observance of law and of its
Orders as a part of enforcement of fundamental rights. That power cannot be disputed.
If so, a question may arise why is this Court not competent to make Orders necessary
for a full and effective implementation of its Orders - and that includes the imposition
G and recovery of cost of all measures including remedial measures. Above all, the
Central Government has the power under the provisions of Sections 3 and 5 of the
Environment (Protection) Act, 1986 to levy and recover the cost of remedial measures
- as we shall presently point out. If the Central Government omits to do that duty, this
Court can certainly issue appropriate directions to it to takt necessary measures. Is it
not open to the Court, in an appropriate situation, to award damages against private
parties as part of relief granted against public authorities. Thls is a question upon which
H we do not wish to express any opinion in the absence of a full debate at the Bar.
INDIAN COUNCIL FOR ENVIRO-LEGALACTION v. U.0.1. [B.P. JEEVAN REDDY, J.] 543

that the Court cannot direct the Central Government to determine and A
recover the cost of remedial measures from the respondents. Section 3 of
the Environment (Protection) Act, 1986 expressly empowers the Central
Government [or its delegate, as the case may be] to "take all such measures
as it deems necessaiy or expedi.ent for the purpose of protecting and improving
the quality of environment...... ". Section 5 clothes the Central Government
B
[or its delegate] with the power to issue directions for achieving the objects
of the Act. Read with the wide definition of "environment" in Section 2(a),
Sections 3 and 5 clothe the Central Government with all such powers as
are "necessary or expedient for the purpose of protecting and improving
the quality of the environment". The Central Government is empowered to
take all measures and issue all such directions as are called for the above c
purpose. In the present case, the said powers will include giv.ng directions
for the removal of sludge, for undertalCing remedial measures and also the
power to impose the cost of remedial measures on the offending industry
and utilise the amount so recovered for carrying out remedial measures.
This Court can certainly give directions to the Central Government/its D
delegate to take all such measures, if in a given case this Court finds that
such directions are warranted. We find that similar directions have been
made in a recent decision of this Court in In di.an Council for Enviro-Legal
Action and Ors. [supra). That was also a writ petition filed under Article
32 of the Constitution. Following is the direction:
E
"It appears that the Pollution Control Board had identified as many
as 22 industries responsible for the pollution caused by discharge
of their effluents into Nakkavagu. They were responsible to com-
pensate to farmers. It was the duty of the State Government to
ensure that this amount was recovered from the industries and
F
paid to the farmers."

It is, therefore, idle to contend that this Court cannot make appropriate
directions for the purpose of ensuring remedial action_ It is more a matter
of form.
G
... Sri KN. Bhat submitted that the rule of absolute liability is not
accepted in England or other Commonwealth countries and that the rule
evolved by the House of Loards in Rylands v. Fletcher, (1866) 3 H.L. 330
is the correct rule to be applied in such matters. Firstly, in view of the
binding decision of this Court in Oleum Gas Leak case, this contention is H
544 SUPREME COURT REPORTS [1996) 2 S.C.R. '

A untenable, for the said decision expressly refers to the rule in Rylands but
refuses to apply it saying that it is not suited to the conditions in India.
Even so, for the sake of completeness, we may discuss the rule in Rylands
· and indicate why that rule is inappropriate and unacceptable in this
country. The rule was first stated by Blackburn, J. [Court of Exchequer
Chamber] in the following words:
B
"We think that the true rule of law is, that the person who for his
own purposes brings on his lands and collects and keeps there
anything likely to do mischief if it escapes, must keep it in at his
peril, and, if he does not do so, is prima facie answerable for all
c the damage which is the natural consequence of its escape. He can
excuse himself by shewing that the escape was owing to the
plaintiffs default; or perhaps that the escape was the consequence
of vis major, or the act of God; ........ and it seems but reasonable
and just that the neighbour, who has brought something on his own
property which was not naturally there, harmless to others so long
D as it is confined to his own property, but which he knows to be
mischievous if it gets on his neighbour's, should be obliged to make
good the damage which ensues if he does not succeed in confining
it to his own property."

E The house of Lords, however, added a rider to the above statement,
viz., that the user by the defendant should be a "non- natural" user to attract
the rule. In other words, if the user by the defendant is a natural user of
the land, he would not be liable for damages. Thus, the twin tests - apart
from the proof of damage to the plaintiff by the act/negligence of the
F defendants - which must be satisfied to attract this rule are "foreseeab~lity"
and "non-natural" user of the land.

The rule in Rylands has been approved by the House of Lords in the
recent decision in Cambridge Water Company v. Eastem Counties Leather,
...
-
.....-

PLC, (1994) 2 W.L.R. 53. The plaintiff, Cambridge Water Company, was
G a statutory corporation engaged in providing public water supply within a
certain area including the city of Cambridge. It was lifting water from a
bore well situated at some distance from Sawstyn. The defendant-company.
Eastern Leather, was having a tannery in Sawstyn. Tanning necessarily
-
involves degreasing of pelts. For that purpose, the defendant was using an
H organo chlorine called P.C.E. P.C.E. was stored in a tank in the premises
INDIAN COUNCIL FOR ENVIRO-LEGALACTION v. U.O.I. [B.P. JEEVAN REDDY,J.) 545

of the defendant. The plaintiffs case was that on account of the P.C.E. A
percolating into the ground, the water in its well became contaminated and
unfit for human consumption and that on that account it was obliged to
find an alternative source at a substantial cost. It sued the defendant for
the resulting damages: The plaintiff based his claim on three alternative
grounds, viz., negligence, nuisance and the rule in Rylands. The Trial Judge
B
(High Court) dismissed the action in negligence and nuisance holding that
the defendant could not have reasonably foreseen that such damage could
occur to the plaintiff. So far as the rule in Rylands was concerned, the Trial
Judge held that the user by the defendant was not an non-natural user and
hence, it was not liable for damages. On appeal, the Court of Appeal
declined to decide the matter on the basis of the rule in Rylands. It relied c
strongly upon the ratio in Ballard v. Tomlinson, (1885) 29 Ch. D. 115
holding that no person having a right to use a common source is entitled
to contaminate that source so as to prevent his neighbour from having a
full value of his right of appropriation. The Court of Appeal also opined
that the defendant's use of the land was not a natural use. On appeal by D
the defendant, the House of Lords allowed the appeal holding that
foreseeability of the harm of the relevant type by the defendant was a
pre-requisite to the right to recover damages both under the heads of
nuisance and also under the rule in Rylands and since that was not
established by the plaintiff, it has to fail. The House of Lords, no doubt,
held that the defendant's use of the land was a non- natural use but E
dismissed the suit, as st~ted above, on the ground that the plaintiff has failed
to establish that pollution of their water supply by the solvent used by the
defendant in his premises was in the circumstances of the case f orseeable by
the defendant.
F

- The Australian High Court has, however, expressed its disinclination
to treat the rule in Rylands as an independent head for claiming damages
or as a rule rooted in the law governing the law of nuisance in Bwnie P01t
Auth01ity v. General Jones Pty Ltd., (1994) 68 Australian Law Journal 331.
The respondent, General Jones Limited, had stored frozen vegetables in
three cold storage rooms in the building owned by the appellant, Burnie G
Port Authority (Authority]. The remaining building remained under the
-. occupation of the Authority. The Authority wanted to extend the building.
The extension work was partly done by the Authority itself and partly by
an independent contractor [Wildridge and Sinclair Pty. Ltd.]. for doing its
work, the contractor used a certain insulating material called E.P.S., a H
546 SUPREME COURT REPORTS [1996) 2 S.C.R.

A highly inflammable substance. On account of negligent handling of E.P.S.,
there was a fire which inter alia damaged the rooms in which General Jones
had stored its vegetables. On an action by General Jones, the Australian
High court held by a majority that the rule in Rylands having attracted
many difficulties, uncertainties, qualifications and exceptions, should now
be seen, for the purposes of Australian Common Law, as absorbed by the
B principles of ordinary negligence. The Court held further that under the
rules governing negligence, if a person in control of a premises, introduces
a dangerous substances to carry on a dangerous activity, or allows another
to do one of those things, owes a duty of reasonable care to avoid a
reasonably foreseeable risk of injury or damage to the person or property
c of another. In a case where a person or the property of that other is lawfully
in a place outside the premises, the duty of care varies in degree according
to the magnitude of the risk involved and extends to ensuring that such
care is taken. Applying the said principle, the Court held that the Authority
allowed the independent contractor to introduce or retain a dangerous
D substance or to engage in a dangerous activity in its premises which
substance and activity caused a fire that destroyed the goods of General
jones. The evidence, the Court held, established that the independent
contractor's work was a dangerous activity in that it involved real and
foreseeable risk of a serious conflagration unless special precautions were
taken. In the circumstances, it was held that the Authoiity owed a non-
E delegable duty of care to General Jones to ensure that its contractor took
reasonable steps to prevent the occwTence of a fire and the breach of that
duty attracted liability pursuant to the ordina1y principles of negligence for the
damage sustained by the respondent.

F On a consideration of the two lines of thought [one adopted by the
English Courts and the other by the Australian High Court], we are of the
opinion that any principle evolved in this behalf should be simple, practical
and suited to the conditions obtaining in this country. We are convinced
that the law stated by this Court in Oleum Gas Leak case is by far the more
appropriate one - apart fro~ the fact that it is binding upon us. [We have
G disagreed with the view that the law stated in the said decision is obiter. J
According to this rule, once· the activity carried on is hazardous or in-
herently dangerous, the person carrying ort such activity is liable to make
good the loss caused to any other person by his activity imspective of the
fact whether he took reasonable care while carrying on his activity. The
.H rule is premised upon the very nature of the activity carried on. In the
INDIANCOUNCILFORENVIRO-LEGALACTIONv. U.O.I. (B.P.JEEVANREDDY,J.] 547

words of the Constitution Bench, such an activity "can be tolerated only on A

...,., the condition that the enterprise engaged in such hazardous or inherently
dangerous activity indemnifies all those who suffer on account of the
carrying on of such hazardous or inherently dangerous activity regardless
of whether it is carried on carefully or not" The Constitution Bench has
also assigned the reason for stating the law in the said terms. It is that the
B
enterprise [carrying on the hazardous or inherently dangerous activity]
alone has the resource to discover and guard against hazards or dangers -
and not the person affected and the practical difficulty [on the part of the
affected person] in establishing the absence of reasonable care or that the
damage to his was foreseeable by the enterprise.
c
Once the law in Oleum Gas Leak case is held to be the law ap-
plicable, it follows, in the light of our findings recorded hereinbefore, that
Respondents Nos. 4 to 8 are absolutely liable to compensate for the harm
caused by them to villagers in the affected area, to the soil and to the
underground water and hence, they are bound to take all necessary D
measures to remove the sludge and other pollutants lying in the affected
area [by affected area, we !!lean the area of about 350 ha. indicated in the
sketch at Page 178 of NEERI Report] and also to defray the cost of the
remedial measures required to restore the soil and the underground water
sources_ Sections 3 and 4 of Environment [Protection] Act confers upon
the Central Government the power to give directions or the above nature E

-
and to the above effect. Levy of costs required for carrying out remedial
measures is implicit in Sections 3 and 4 which are couched in very wide
\
and expansive language. Appropriate directions can be given by this Court
to the Central Government to invoke and exercise those powers with such
modulations as are called for in the facts and circumstances of this case.
F
The question of liability of the respondents to defray the costs of
remedial measures can also be looked into from another angle, which has
now come to be accepted universally as a sound principle, viz., the "Polluter
Pays" Principle.
G

- "The polluter pays principle demands that the financial costs of
preventing or remedying damage caused by pollution should lie
with. the undertakings which cause the pollution, or produce the
goods which cause the pollution. Under the principle it is not the
role of government to meet the costs involved in either prevention · H
t
1
\
548 SUPREME COURT REPORTS [1996] 2 S.C.R.

A of such damage, or in carrying out remedial action, because the
effect of this would be to shift the financial burden of the pollution
incident to the taxpayer. The 'polluter pays' principle was
promoted by the Organisation for Economic Co-operation and
Development [OECDJ during the 1970s when there was great
public interest in environmental issues. During this time there were
B demands on government and other institutions to introduce
policies and mechanisms for the protection of the environment and
the public from the threats posed by pollution in a modern in-
dustrialised society. Since then there has been considerable dis-
cussion of the nature of the polluter pays principle, but the precise
c scope of the principle and its implications for those involved in
past, or potentially polluting activities have never been satisfactory
agreed.

Despite the difficulties inherent in defining the principle, the
European Community accepted it as a fundamental part of its
D strategy on environmental matters, and it has been one of the
underlying principles of the four Community Action Programmes
on the Environment. The current Fourth Action Programme
([1987] O.J.C328/1) makes it clear that 'the cost of preventing and
eliminating nuisances must in principle be borne by the polluter',
E and the polluter pays principle has now been incorporated into the
European community Treaty as part of the new Articles on the
environment which were introduced by the Single European Act
of 1986. Article 130R(2) of the Treaty states that environmental
considerations are to play a part in all the policies of the Com-
munity, and that action is to be based on three principles : the
F
need for preventative action; the need for environmental damage
to the rectified at source; and that the polluter should pay."

["Historic Pollution -Does the Polluter Pay?" By Carolyn Shelbourn
- Journal of Planning and Environmental Law, Aug. 1974 issue.]
G
Thus, according to this principle, the responsibility for repairing the
damage is that of the offending industry. Section 3 and 5 empower the
Central Government to give directions and take measures for giving effect
to this principle. In all the circumstances of the case, we think it ap-
-
H propriate that the task of determining the amount required for carrying out
').
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.O.L [B.P. JEEVAN REDDY, J.)

the remedial measures, its recovery/realisation and the task of undertaking
549

A
the remedial measures is placed upon the Central Government in the light
of the provisions of the Environment [Protection] Act, 1986. It is, of course,
open to the Central Government to take the help and assistance of State
Government, R.P.C.B. or such other agency or authority, as they think fit.

The next question is what is the amount required for carrying out the B
necessary remedial measures to repair the damage and to restore the water
and soil to the condition it was in before the respondents commenced their
operations. the Report of NEERI has worked out the cost at more than
Rupees forty crores. The estimate of cost of remedial measures is, however,
not a technical matter within the expertise of NEERI officials. Moreover, c
the estimate was made in the year 1994. Two years have passed by since
then. Situation, if at all, must have deteriorated further on account of the
presence of - and dispersal of th~ sludge - in and around the complex of
the respondents by them. They have been discharging other toxic effluents
from their other plants, as reported by NEERI and the central team. It is
but appropriate that an estimate of the cost of remedial measures be made D
now with notice to the responde.nts, which amount should be paid to
Central Government and/or recovered from them by the Central Govern-
ment. Other directions are also called for in the light of the facts and
circumstances mentioned above.
E
CONCLUSIONS :

~ From the affidavits of the parties, Orders of this Court, technical
Reports and other data, referred to above [even keeping aside the latest
Report of the R.P.C.B.], the following facts emerge :
F
(I) Silver Chemicals [R-5] and Jyoti Chemicals [R-8] had manufac-
tured about 375 MT of 'H' acid during the years 1988-89. This had given
rise to about 8250 rn3 of waste water and 2440 tonnes of sludge [both
iron-based and gypsum-based]. The waste water had partly percolated into
the earth in and around Bichhri and part of it had flowed out. Out of 2440
tonnes of sludge, about 720 tonnes has been stored In the pits provided by G
the respondents. The remaining sludge is still there either within the area

-- of the complex of the respondents or outside their complex. With a view
·to conceal it from the eyes of the inspection teams and other authorities,
the respondents have dispersed it all over the area and covered it with
earth. In some places, the sludge is lying in mounds. The story of entombing H
)
.z
.550 SUPREME COURT REPORTS [1996) 2 S.C.R.

A the entire quantity of sludge is untrue.

The units manufacturing 'H' acid - indeed most of the units of the •
respondents - had started functioning, i.e., started manufacturing various
chemicals without obtaining requisite clearances/consents/licences. They
did not instal any equipment for treatment of highly toxic effluents dis-
B charged by them. They continued to function even after and inspite of the
closure orders of The R.P.C.B. They did never carry out the Orders of this
court fully, [e.g., entombing the sludge] nor did they fulfil the undertaking
given by them to the Court [in the matter of removal of sludge and
de-watering of the wells]. Inspite of repeated Reports of officials and
C expert bodies, they persisted in their illegal course of action in a brazen
manner, which exhibits their contempt for law, for the lawful authorities
and the Courts.

(II) That even after the closure of 'H' acid plant, the fourth respon-
D dent had not taken adequate measures for treating the highly toxic waste
water and other wastes emanating from the Sulphuric Acid Plant. The
untreated highly toxic waste water was found - by NEERI as well as the
Central team - flowing through the dumps of iron/gypsum sludge creating
a highly potent mix. The letter of the fourth respondent dated January 13,
1996, shows that the Sulphuric Acid Plant was working till November 10,
E 1995. An assertion is made before us that permanent E.T.P. has also been
constructed for the Sulfuric Acid Plant in addition to the temporary tank
which was constructed under the Orders of this Court. We express no
opinion on this assertion, which even if true, is valid only for the period 1-·

subsequent to April, 1994.
F
(III) The damage caused by the untreated highly toxic wastes result-
ing from the production of 'H' acid - and the continued discharge of highly
toxic effluent from the Sulphuric Acid Plant, flowing through the sludge
[H-acid waste] - is undescribable. It has inflicted untold misery upon the
villagers and long lasting damage to the soil, to the uncerground water and
G to the environment of that area in general. The Report of NEERI contains
a sketch, at Page 178, showing the area that has been adversely affected by
the production of 'H' acid by the respondents. The area has been divided
into three zones on the basis of the extent of contamination. A total area
of 350 ha has become seriously contaminated. The water in the wells in
H that area i.s not fit for consumption either by human beings or cattle. It has
'
. . ._ INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION v. U.O.I. [B.P. JEEVAN REDDY, J.) 551

seriously affected the productivity of the land. According to NEERI. A
Report, Rupees forty crores is required for repairing the damage caused
to men, land, water and the flora.

(IV) This Court has repeatedly found and has recorded in its Orders
that it is respondents who have caused the said damage. The analysis
B

-- Reports obtained pursuant to the directions of the Court clearly establish
that the pollution of the wells is on account of the wastes discharged by
Respondents Nos. 4 to 8, i.e., production of 'H' acid. The Report of the
environment experts dated November 1, 1993 has already been referred to
hereinbefore. Indeed, several orders of this Court referred to supra are also
based upon the said finding. c
(V) Sections 3 and 5 of the Environment (Protection) Act, 1986,
apart from other provisions of Water and Air Acts, empower the Govern-
ment to make all such directions and take all such measures as are
necessary or expedient for protecting and promoting the 'environment',
which expression has been defined in very wide and expansive terms in D
Section 2(a) of the Environment [Protection] Act. This power includes the
power to prohibit an activity, close an inqustry, direct and/or carry out
remedial measures, and wherever necessary impose the cost of remedial
measures upon the offending industry. The principle "Polluter Pays" has
gained almost universal recognition, apart from the fact that it is stated in E
absolute terms in Oleum Gas Leak case. The law declared in the said
decision is the law governing this case.

DIRECTIONS :

Accordingly, the following directions are made : F

1. The Central Government shall determine the amount required for
carrying out the remedial measures including the removal of sludge lying
in and around the complex of Respondents 4 to 8, in the area affected in
village Bichhri and other adjacent villages, on account of the production G
of 'H' acid and the discharges from the Sulphuric Acid Plant of Respon-
dents 4 to 8. Chapters-VI and VII in NEER! Report [submitted in 1994]
shall be deemed to be the show-cause notice issued by the Central Govern-
ment proposing the determination of the said amount. Within six weeks
from this day, Respondents 4 to 8 shall submit their explanation, along with
such material as they think appropriate in support of their case, to the H
)
552 SUPREME COURT REPORTS [1996] 2 S.C.R. -\

A Secretary, Ministry of Environment and Forests, Government of fodia,
[M.E.F.] The Secretary shall thereupon determine the amount in consult-
ation with the experts of his Ministry within six weeks of the submission of
the explanation by the said Respondents. The order passed by the
Secretary, [M.E.F.] shall be communicated to Respondents 4 to 8 - and all
concerned - and shall also be placed before this Court. Subject to the

--
B
Orders, if any, passed by this Court, the said amount shall represent the
amount which Respondents 4 to 8 are liable to pay to improve and restore
the environment in the area. For the purpose of these proceedings, the
Secretary, [M.E.F.] and Respondents 4 to 8 shall proceed on the assump-
tion that the affected area is 350 ha, as indicated in the sketch at Page 178
C of NEERI Report. In case of failure of the said respondents to pay the
said amount, the same shall be recovered by the Central Government in
accordance with law. The factories, plant, machinery and all other immov-
able assets of Respondents 4 to 8 are attached herewith. The amount so
determined and recovered shall be utilised by the M.E.F. for carrying out
D all necessary remedial measures to restore the soil, water sources and the
environment in general of the affected area to its former state.

2. On account of their continuous, persistent and insolent violations
of law, their attempts to conceal the sludge, their discharge of toxic
effluents from the Sulphuric Acid Plant which was aliowed to flow through
E the sludge, and their non- implementation of the Orders of this Court - all
of which are fully borne out by the expert committees' Reports and the
findings recorded hereinabove - Respondents 4 to 8 have earned the
dubious distinction of being characterised as "rogue industries". They have
inflicted untold misery upon the poor, un,suspecting villagers, despoiling
F their land, their water sources and their entire environment .. all in pur-
suance of their private profit. ·They have forfeited all claims for any
consideration by this Court. Accordingly, we herewith order the closure of
all the piants and factories of Respondents 4 to 8 lo.cated in Bichhri village.
The R.P.C.B. is directed to seal all the factories/units/plants of the said
G respondents forthwith. So far as the Sulphuric Acid Plant is c0ncerned, it
will be closed at the end of one week from· today, within which period
Respondent No. 4 sh'l-ll wind down its operations so as to avoid risk of any
untoward consequences, as asserted by Respondent No.4 in Writ Petition
(C) No. 76 of 1994. It is the responsibility of Respondent No. 4 to take
necessary steps in this behalf. The R.P.C.B. shall seal this unit too at the
H end of one week from today. The re-opening of these plants shall depend
INDIAN COUNCIL FOR ENVIRO-LEGALACTION v. U.0.1. [B.P. JEEVAN REDDY, J.) 553

upon their compliance with the directions made and obtaining of all A
requisite permissions and consents from the relevant authorities. Respon-
dents 4 to 8 can apply for directions in this behalf after such compliance.

3. So far as the claim for damages for the loss suffered by the villagers
in the affected area is concerned, it is open to them or any organisation on
their behalf to institute suits in the appropriate civil court. If they file the B
suit or suits in Jonna pauperis, the State of Rajasthan shall not oppose their
applications for leave to sue in Jonna paupe1is.

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

5. The Central Government and the R.P.C.B. shall file quarterly
Reports before tliis Court with respect to the progress in the implementa-
tion of Directions 1 to 4 aforesaid.
G
6. The suggestion for establishment of environment courts is a com-
mendable one. The experience shows that the prosecutions launched in
ordinary criminal courts under the provisions of the Water Act, Air Act
and Environment Act never reach their conclusion either because of the
work-load in those courts or because their is no proper appreciation of the
significance of the environment matters on the part of those in charge of H
<
I
A_
554 SUPREME COURT REPORTS (1996) 2 S.C.R.

A conducting of those cases. Moreover, any orders passed by the authorities
under Water and Air Acts and the Environment Act are immediately
questioned by the industries in courts. Those proceedings take years and
years to reach conclusion. Very often, interim orders are granted
meanwhile which effectively disable the authorities from ensuring the im-
plementation .of their orders. All this points to the need for creating
B environment courts which alone should be empowered to deal with all
matters, civil and criminal, relating to environment. These courts should be
manned by legally trained persons/judicial officers and should be allowed
to adopt summary procedures. This issue, no doubt, requires to be studied
and examined indepth from all angles before taking any action.
c 7. The Central Government may also consider the advisability of
strengthening the. environment protection machinery both at the Centre
and the States and provide them more teeth. The heads of several units
and agencies should be made personally accountable for any lapses and/or
negligence on the part of their units and agencies. The idea of an environ-
D mental audit by specialist bodies created on a permanent basis with power
to inspect, check and take necessary action not only against erring in-
dustries but also against erring officers may be considered. The idea of an
environmental · audit conducted periodically and_ certified annually, by
specialists in the field, duly recognised, can also be considered. The ul-
E timate idea is to integrate and balance the concern for environment with
the need for industrialisation. and technological progress.

Respondents 4 to 8 shall pay a sum of Rupees fifty thousand by way
of costs to the petitioner which had to fight this litigation over a period of
over six years with its own means. Voluntary bodies, like the petitioner,
F deserve encouragement wherever their actions are found to be in fur-
therance of public interest. The said sum shall be deposited' iii this Court
within two weeks from today. It shall be paid over to the petitioner.

Writ Petition (C) No. 967of1989 is allowed with the above directions
with costs as specified hereinabove.
G
WRIT PETITION (C) NO. 76 OF 1994:

In view of the decision in Writ Petition (C) No. 967 of 1989, the writ -
petition is dismissed.

H No costs.
INDIAN COUNCIL FOR ENVIRO-LEGALACTION v. U.0.1. [B.P. JEEVAN REDDY, J.) 555

WRIT PETITION (C) NO. 94 OF 1990 : A
In view of the decision in Writ Petition (C) No. 967 of 1989, no
separate Orders are necessary in this petition. The writ petition is accord-
ingly dismissed.

No costs. B
WRIT PE.TIT/ON (C) NO. 824 OF 1993:

In view of the decision in Writ Petition (C) No. 967 of 1989, no
separate Orders are necessary in this petition. The writ petition is accord-
ingly dismissed. c
No costs.

v.s.s. Petition dismissed.