M.C.MEHTAversusUNION OF INDIA AND ORS.

A                                   M.C.MEHTA
                                          v.
                           UNION OF INDIAAND ORS.

                                 AUGUST 31, 1999

B           [S. SAGHIR AHMAD AND M. JAGANNADHA RAO, JJ.]


          Environment (Protection) Act, 1986:

          Environmental pollution-Taj Trapezium Zone-Atmospheric pollution-
C   High levels-Natural gas-Refusal to accept-By industries in Agra-Held:
    For Zone I-(a) 53 iron foundries not agreeing to accept natural gas to be
    closed forthwith if not already closed as per Supreme Court's order dated 30-        I
    12-I996; (b),29 non-cupola based industries, having entered into agreement       '
    with GAIL, but not accepted natural gas, to be closed by 15-9-1999; (c) As
D   and when these 29 industries take steps to receive natural gas they be
    allowed to function; (d) No coal/coke to be supplied after 15-9-1999 to those
    78 cupola-based industries which have not installed the cupola c~nversion
    technology; (e) As and when these 78 industries instal cupola. conversion
    technology they be allow_ed to function-For. Zones' lI and III-Central
    Government directed to examine expert reports.in connection with dismantling
E   of old Yamuna Bridge so that GAIL can taM a decision regarding laying of
    pipeline for supply of gas to the two zones.

          This Court in MC. Mehta's case (decided on 30-12-1996) directed the
     Gas Authority of India Ltd. (GAIL) to make available natural gas·to the
     industries in and around the Taj Trapezium Zone (TTZ) i,e. Zone I of the
F   Agra city by a certain date. However, only a certain number of industries
    alone had contacted GAIL for supply of natutal gas. Out of these, certain
    industries were awaiting the technology for conversion into natural gas. As
    regards Zones II and III of the TTZ, the respondent-Union. of India had not
    examined the reports of technical experts in connection with the disinantling
G   of the old Yamuna Bridge so that GAIL could take a decision regarding
    laying of the pipeline along the old Yamuna Bridge. The present application
    had been filed by GAIL seeking suitable directions in respect of the aforesaid           >
    matters.

          Disposing of the application, the Court
H                                        124
                           M.C. MEHTA v. U.0.1.                           125
      HELD : 1. It is matter of grave concern if the atmospheric pollution       A
in and around the Taj Trapezium Zone (ITZ) is allowed to continue. Therefore,
the following directions in respect of the industries located in Zone 1 of the
TTZ are issued:- (130-H]

      (a) 53 iron foundries which have not agreed to accept natural gas have
to be closed forthwith, if not already closed as per the orders of this Court    B
in MC. Mehta's case (decided on 30-12-1996).

      (b) 29 non-cupola based industries which have entered into agreement
with GAIL, but have not accepted the natural gas, have to be closed down by
15-9-1999 (as per clause 5 of order dated 30-12-1996).
                                                                                 c
      (c) As and when these 29 non-cupola based industries take steps to
receive natural gas, they shall be allowed to function.

      (d) In respect of the 78 cupola-based iron foundries, which had entered
into an agreement with the Gas Authority of India.Ltd. (GAIL), but have not
yet installed the cupola conversion technology, no coal/coke is to be supplied   D
to them after 15-9-1999.

      (e) As and when any of these 78 iron foundries gets converted to
natural gas and takes steps to receive gas from GAIL, they will be allowed
to function. [131-A-E]
                                                                                 E
      2. As regards Zones II and III of the TTZ, the Union oflndia is directed
to examine the expert technical reports in connection with the dismantling
of the old Yamuna Bridge so that GAIL can take a decision regarding laying
of pipeline for supply of natural gas to Zones II and III. [132-C]

     CIVIL ORIGINAL JURISDICTION: I.A. No. 61 in Writ Petition (C) No.           F
13381of1984.

     (Under Article 32 of the Constitution of India).

     In-person for Petitioner (N.P.)
                                                                                 G.
      V.R. Reddy, P.P. Malhotra, Mrs. Suchitra A. Chitale, Pardeep Misra,
Sanjay Parikh, Ashok K. Srivastava, Vijay Panjwani, Hemant Sharma, B.V.
Bairam Das, Ms. Sushma Suri, Krishan Mahajan and Rakesh U. Upadhyay for
the appearing parties.

     The Judgment of the Court was delivered by                                  H
                                                            ,


     126                      SUPREME COURT REPORTS [1999) SUPP, 2 S.C.R.

A         M. JAGANNADHA RAO, J. This application has been filed by the Gas
     Authority of India Limited (for short 'GAIL') for the following reliefs:

             "(a) extend the schedule for supply of gas to industries in Zone-I of
             Agra City, laid down vide the order dated 3/04/98 passed by this
                                                                                       -
             Hon'ble Court in such a manner that in respect of cupola based
B            industries supply of gas by GAIL coincides with the readiness of the
             consumer industries to draw gas;

             (b) direct non-cupola based industries in Zone-I of Agra to draw gas
             latest by September, 1999;

c            (c) direct the Secretary, PWD, Government of Uttar Pradesh and
             Secretary/Director General, Government of India, Ministry of Surface
             Transport to grant the permission for underpinning the gas pipeline
             to the Yamuna Road Bridge within four weeks so that GAIL may be
             able to the schedule for supply of gas to Zone-II and III laid down
             by this Hon'ble Court vide its order dated 3/04/98."

          The first relief concerns Zone-I and the second relief concerns Zone-
    11 and III in the city of Agra. We shall first deaL with Zone-I and thereafter
    with Zone II and III.

E          Zone I.

            Qn 3.4.1998, this Court directed the GAIL.that it should start supply of
     Natural Gas to the Industries in Zone-I from July, 1998 so as to make available
     gas to the specified industries by December, 1998. It is now stated by GAIL
     that till December, 1998, 115 consumers out of 168 (referred to the order of
F    this Court dated 30.12.96) alone had contacted GAIL for supply ofnatural gas.
     Other industries in Zone-I did not contact GAIL. It was stated that GAIL had
    made gas available in April, 1998 to its first consumer in May, 1998 and that
    by September, 1998, GAIL had completed gas pipeline network to supply gas
    to all the 115 consumers with whom it had entered into a contract in Zone-
G   I. The complaint is that 79 out of these 115 consumers are not coming forward
    in Zone-I and are cupola based iron foundries. The rest are non cupola. All
    these 115 consumers had given an undertaking earlier to receive natural gas
    from GAIL. These 79 industries have been awaiting the technology to be
    developed by the National Metallurgical Laboratory (hereinafter called the
    'NML') for conversion to natural gas. GAIL feels that there is likelihood of
H   delay in the drawal of gas by the 79 cupola based iron foundries in Zone-
            M.C. MEHTA v. U.0.1. [M . .IAGANNADHA RAO. J.]                     127
I by the target dated 3 l.12. I 998. Only 4 cupola based - customers are likely       A
to draw Gas by December, I 998.

      On 12.4. I999, this Court issued .notice to 79 industries in Zone-I requiring
them to show cause why they were not availing of the gas facility to be
supplied by GAIL. They were also asked to state why they did not want to
draw the gas and why their industries should not be allowed to be closed              B
down.

      On 5 .4. I 999, an affidavit of the Agra Iron Founding Association has
been filed stating that 78 (and not 79) were cupola based (item 74 Diwan
Chand Suraj Prakash Jain is not cupola based). The affidavit is filed on behalf C
of 78 cupola based industries. They admit that on 30.12.1996, in M.C. Mehta
v. Union of India, [1997] 2 SCC 353, orders have been passed recording the
undertaking on behalf of these industries for receiving gas as industrial fuel.
They then refer to the chronology of the steps taken by them bonafide for
conversion by approaching NML and Tata-Korf and their spending huge
sums of money in that connection. They state that the problem is that fool- D
proof technology for these 78 industries to use natural gas is not yet ready,
though now it is in the last stage of completion, through the efforts of NML
of Tata-Korf who have been working on a project. As soon as the technology
is available, the 78 industries will switch-over to natural gas. They rely on the
extension granted to GAIL earlier upto December, 1998 as the cause for delay E
in switching over NML has conducted 10 trials on its new technology but
these tests have not been initially successful. The 78 industries have entered
into agreement with GAIL agreeing to switch over to natural gas and have
paid Rs.2 lakhs as security and given Rs.6 lakhs guarantee/indemnity. They
have paid Rs.14 lakhs to Tata Korf in January, 1998. On 6.2.1998 NML and
Tata Korf visited Agra and on I 0.2. 78, the Association placed orders with F
Tata Korf for supply of the technology. On 19 .3 .1998, the Association has
entered into agreement with Tata Korf under which Rs.20 lakhs have been
paid as advance out of Rs.40 lakhs. Knowhow has been agreed to be provided
 by 31. 7.1999 but the trial runs have failed. A chart is filed in this behalf. In
all, 32 lakhs have been paid to Tata Korf. On 22.4.1999, there has been a G
meeting with Tata-Korf. All these steps have been taken during 1997, 1998
upto 22.4.1999.

      On 26.4.1999, Tata Korf has written to the Association that the
commissioning of the cupola and stabilizing the same will take place in 1st
part of July, 1999 and they expect "to receive the orders" from the Association       H
      128                      SUPREME COURT REPORTS (1999] SUPP. 2 S.C.R.

 A    in July, 1999 after the cupola is successfully worked to the satisfaction of the
      Association. The schedule of supply of cupola is:

               (a) 10 cupolas in 4 months

               (b) in each month 5-6 cupolas can be completed.
 B          After installation, those cupolas require fine tuning.

             On 3 .8.1999, Tata Korf has written to the Association that they had
      installed the new instrumentation successfully <,?n 15.6.1999. Some more heats
      have to be developed. The demonstration unit will be established fully by end
 C    of September, 1999. Same schedule of supply as stated earlier is given.

            We have heard learned senior counsel Sri V.R.Reddy for GAIL and Sri
      Sanjay Parikh for the Associati~n. We have also heard Sri Krishan Mahajan
      and Sri Vijay Panjwani.
- D
            Learned counsel Sri Krishan Mahajan has suggested that these 78
      industries have been dodging and procrastinating in shifting to natural gas
      and that as per the orders of this Court dated 30.12.1996 in MC. Mehta v.
      Union ofIndia, [1997) 2 SCC 353, direction No. 5 requires that once the GAIL
      is ready, the industries, if they did not convert to natural gas, they have to
 E    close down. Now GAIL has been ready for supply of natural gas in.September
      1999 and at any rate by December, 1999 in respect of all the 115 industries
      who have agreed to convert to gas. Inasmuch as these 78 industries have not
      become ready to convert, they are liable to be closed down forthwith.

            On the 0th.er hand, learned counsel for the Association Sri Sanjay
 F Parikh has contended that in view of the above steps taken by the industries
      during \ 99.7, 1998 and 1999 as narrated earlier, the stage is now set for switch
      over and that it will create great hardship if the industries are to be directed
      to be closed down now.

 G          Summarising the position, it is as follows. The correspondence between
      the Association and NML and Tata Korf, it shows that by end of September,
      1999, the demonstration unit will be established. Thereafter, cupola will be
      supplied - 10 in 4 months and then in each month, 5 or 6 cupolas will be
      supplied.

 H          Now, going by the date September, 1999, it looks as if 10 cupola units
            M.C. MEHTA v. U.0.1. [M. JAGANNADHA RAO, J.]                    129
will be supplied by January, 2000 (i.e. in 4 months) and by the time all these     A
78 cupola industries change over to gas, ( as per the time schedule given by
Tata Korf) it will be another 17 months - which will take us to July, 2001. This
will be the time span on the assumption that conversion to natural gas will
be started by these 78 industries after September, 1999.

       Now in the orders of this Court dated 30.12.1996, the directions (4) and    B
(5) read as follows : (at p. 304):

        "(4). Those industries which neither apply for gas connection nor for
        alternative industrial plot shall stop functioning with the aid of coke/
        coal in the TTZ w.e.f. April 30, 1997. Supply of coke/coal to these
        industries shall be stopped forthwith. The District Magistrate and the     C
        Superintendent of Police shall have this order complied with.

         (5) The GAIL shall commence supply of gas to the industries by June
        30, 1997. As soon as the gas supply to an industry commences, the
        supply of coke/coal to the said industry shall be stopped with             D
        immediate effect."

      In the above background, the question is whether these 78 cupola
industries are to be allowed to function on coal/coke without receiving natural
gas. So far as the remaining non-cupola industries which are 37 (out of 115)
who have contracted to draw, there is no reason why they have not accepted         E
the supply of natural gas. Out of these, we are told only 8 industries were
drawing natural gas. The rest 29 have been obviously taking it easy.

      We can divide the discussion into the various categories as follows:

      (1) The overall total was 168 and only 115 have entered into agreement       F
with GAIL. Therefore, so far as the remaining (168-115) = 53 iron foundries
are concerned, there is no justification for them to function - unless they have
shifted out-and under clause 4 of the order dated 30.12.1996 of this Court,
the said 53 iron foundries are already liable to be closed. If they have not
shifted, these 53 industries must stop forthwith as they have acted in breach      G
of direction no.4.

      (2) So far as the 29 non-cupola industries out of 115 (excluding 8 which
have switched over to gas), there can be no difficulty in applying clause 5
of the order of this Court. If by 15.9.1999, these 29 industries do not accept
gas, clause 5 of the order dated 30.12.1996 shall apply forthwith to them.         H
     130                       SUPREME COURT REPORTS (1999] SUPP. 2 S.C.R.

A          (3) So far as the 78 cupola based industries are concerned, the question
     is what order is to be passed? We have shown that even if the conversion
    starts from October, 1999, the t~e frame for all the 78 industries will be easily
    21 months - which will take us to July 2001. This Court has given enough
    time to these industries right from 31.12.1996. We do not mean to say that
B   they have not taken some steps for conversion but if the Tata Korf time-
    schedule can give the conversion technology to all the 78 of them at the
    earliest only by July 2001, the question is whether these 78 coke/coal based
    industries which are continuously using coke/coal can be allowed to pollute
    the air in and around the Taj Trapezium and also whether they are to be
    allowed for such a long period upto July 2001. We cannot lose sight of the
C   fact that GAIL has completed its obligation to be ready, even by September,
    1998.

          No doubt, even now, as stated by counsel, these 78 industries are
   prepared to stand by the undertaking given by them to this Court to receive
   natural gas. In our view, having regard to the fact that the conversion of all
D ·these 78 cupola based industries is likely to be not completed till July, 2001
   - it will be a matter of grave concern if the atmospheric pollution (as noted
   in the Neeri and Dr. Varadarajan reports and our earlier orders) is allowed to
   continue. Question is not strictly whether the 78 industries have or have not
   acted bonafide in making some efforts for conversion to natural gas but
   assuming they have taken some steps, the question is whether the danger to
E the environment does not require urgent action. The data already collected
   shows high levels of pollution in Agra in this area affecting the environment
   in the TTZ area.
           In the circumstances, we are of the view that there is no other way to
    deal with the situation than to apply claus~;(5) of the order of this Court dated
F   30.12.1996 set out above, strictly to these 78 cupola based industries. We are
    conscious that any order to stop supply of coke/coal to the 78 coke/coal
    based iron foundries will result in the closing down of these 78 industries for
    some time, before they are able to switch on to natural gas. Obviously, the
    closure will not be permanent one but of a temporary nature. There will be
G   no difficulty in permitting them to re-open as soon as they have the cupola
    conversion technology installed in their respective industries. We are, therefore,
    compelled to put clause (5) of the order of this Court into full effect in respect
    of these 78 industries w.e.f. 15.9.1999.
           In the result, we direct as follows:-
H          (1) Out of 168, 53 iron foundries which have not agreed to accept gas
                 M.C. MEHTA v. U.0.1. [M. JAGANNADHA RAO, J.]                    131
      have to be closed forthwith, if not already closed as per orders of this Court    A
      dated 30.12.1996 unless they have shifted. The District Magistrate and
      Superintendent of Police, Agra shall take action accordingly.

            (2)(i) Out of 115 industries which have opted and entered into agreements
      with GAIL, 37 are non-c.upola based and ~mong the 8 have converted to
      natural gas while in respect of the remaining 29 non-cupola industries, Clause    B
      (5) of the order of this Court dated 30.12.96 shall come into operation w.e.f.
      15.9.1999, for they have no excuse for not accepting the natural gas from
      GAIL. The District Magistrate and Superintendent of Police, Agra will take
      steps to close down these industries by 15.9.1999.

            (ii) However, as and when these 29 non-cupola industries take steps to      C
      receive gas, they shall be allowed to function.

            (3)(i) In respect of the remaining 78, which are cupola based, in view of
      the reasons given above, clause (5) of the order dated 30.12.96 of this Court
      will come into operation w.e.f. 15.9.1999. That will mean that in respect of      D
...   these 78 iron foundries industries, the District Magistrate, Agra and the
      Superintendent of Police, Agra will have to see to it that no coal/coke is
      supplied to them after 15.9.1999.

            (ii) Out of the 78 cupola based iron foundries, as and when any of them
      gets converted to natural gas and takes steps to receive gas from GAIL, they      E
      will be allowed to function.

          We dispose of the IA in respect of Zone-I accordingly. Copy to be
      communicated to District Magistrate and Superintendent of Police, Agra.

            GAIL and Sri Krishan Mahajan are requested to furnish a list of the         p
      respective industries to the above officials in a week.

                                 ZONE II and ZONE III

            So far as Zone II and Zone III are concerned, a number of affidavits
      have been filed by the GAIL and. one by the Government of India. As the           G
      matter is to ·be adjourned, we do not propose to give a detailed order. Sri
      V.R.Reddy, learned senior counsel for GAIL has placed before us the
      correspondence and contended that, by its affidavit, the Union of India
      appears to have in principle, accepted that a pipeline can be allowed to be
      laid along the Old Yamuna Bridge but that the Union of India want to put
      GAIL on notice that, inasmuch as the old Bridge may require to be dismantled      H
    132                      SUPREME COURT REPORTS (1999) SUPP. 2 S-.C.R.

A by Government, GAIL must be prepared to go ahead with laying down the                •
    pipeline with that possibility of the Old Bridge being dismantled. Sri Reddy
    however points out that there are reports of some technical experts that the
    old Bridge need not be dismantled in the near future. He contends that,
    unfortunately, the Government of India has not so far applied its mind to
B   these reports and therefore ~t has to take a final decision in the matter of
    dismantling of the Old Yamuna Bridge, after considering these reports. Learned
    senior counsel contends that appropriate directions be given to the Union of
    India in this behalf.

           In view of the above cpntention, we direct the Union of India to examine
C the expert reports given in connection with the. dismantling of the old Bridge
    and take a final decision in regard to the same and give its response to this
    Court by way of affidavit so that GAIL can take a decision as to the laying
    of its pipeline for supply of natural gas to Zones II and III. Response of Union
    of India to be tiled within four weeks.

D        Thus, we dispose of this I.A. so far as Zone I is concerned. The I.A.
    now remains pending in respect of Zone II and III. List I.A. after four weeks.

    I.A.                                                              disposed of.