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PETITIONER: INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION ETC.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.ETC.

DATE OF JUDGMENT:       13/02/1996

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) KIRPAL B.N. (J)

CITATION:  1996 AIR 1446            1996 SCC  (3) 212  JT 1996 (2)   196        1996 SCALE  (2)44

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T B.P.JEEVAN REDDY,J.      WRIT PETITION (C) NO.967 OF 1989:      This  writ   petition  filed   by  an  environmentalist organization brings  to light  the woes  of people living in the vicinity  of chemical  industrial plants  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 industrialization  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? 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 out these opening remarks.      Bichhri is  a small  village  in  Udaipur  district  of Rajasthan. To its 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 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 that comes in

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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.      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  ‘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 unites producing ‘H’ acid have  been established  in Gujarat, as would be evident from the  decision of  the 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.Kirpal,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  20mt., as  trial 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 deep into the bowels  of   the  earth   polluting  the  aquifers  and  the subterranean 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 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 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 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. 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 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      On notice  being given,  counter-affidavits  have  been filed by  the Government  of India, Government of Rajasthan, Rajasthan Pollution Control Board [R.P.C.B.] and Respondents

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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 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 [Prevention and  Control of Pollution] Act, 1974 [Water Act] and Air (Prevention and Control of Pollution) Act, 1981 [Air Act], again  subject to  certain conditions.  However,  this unit changed  its product  without clearance from the Board. Instead of  sulphuric acid,  it started  manufacturing 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)  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  concentration of  dissolved  solids along with  several  dangerous  pollutants.  This  unit  was commissioned in  February, 1988  without obtaining the prior consent of  the Board and accordingly, notice of closure was served on  April 30, 1988. On May 12, 1988, the unit applied for consent  under Water 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 inspection, 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  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  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   issued   imposing   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 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 disposed of in accordance with  the  provisions  contained  in  the  Hazardous  Wastes (Management  and   Handling)  Rules,   1989   framed   under Environment (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

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enclosed several  documents to its counter in support of the averments contained therein.      The Government 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.4 to 8  in the  writ petition. Therefore, the State Government has initiated  action  through  the  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 remains unaffected.      The Ministry  of Environment and Forests, Government 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.  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  Government at  any time  even that  in June, 1989, a  study of  the situation  in Bichri village and some 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 Respondents Nos.4 to 8 thus:      "The effluents  are very  difficult      to treat  as many of the pollutants      present are  refractory in  nature.      Setting up  such  highly  polluting      industry in a critical ground water      area was essentially ill-conceived.      The  effluents  seriously  polluted      the  nearby  drain  and  overflowed      into Udaisagar main canal, severely      corroding its cement-concrete lined      bed and  banks. The polluted waters      also   seriously    degraded   some      agricultural   land   and   damaged      standing 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 aquifer.      Currently about  60 wells appear to      have  been  significantly  polluted      but every  week a  few  new  wells,      down  the   aquifer  start  showing      signs  of   pollution.   This   has      created serious  problems for water      supply   for   domestic   purposes,      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   serious

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    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."      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  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.      In the  counter-affidavit filed  on behalf of the fifth respondent  [Silver   Chemicals],  it  is  stated  that  the manufacture of  ‘H’ acid  which was  commenced 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 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 Archaeological Department of the Government of Rajasthan had issued  environmental clearance  for  its  unit  [rather surprising statement].  ’No-Objection Certificates’ had also been issued  by the Executive Engineer [Irrigation], Udaipur Division and the Wild Life Warden. So far 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.      In the  counter-affidavit filed  on behalf of the sixth respondent [Rajasthan  Multi 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 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 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 commenced production in April 1987  and closed  down completely in 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,  therefore, is  not responsible  for  causing  any

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pollution. It  is further submitted that it is a small-scale industry and  was  registered  with  the  District  Industry 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.      Hindustan Zinc  Limited  was  impleaded  as  the  ninth respondent at the instance of Respondents Nos.4 to 8. It has filed a  counter-affidavit 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  Respondents Nos.4  to 8 in Bichhri or surrounding villages. ORDERS PASSED AND STEPS TAKEN DURING THE PERIOD 1989-1992:      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 requested  to suggest  both short- term and  long-term measures  required to  combat the hazard already caused.  Directions were  also made  for  supply  of drinking  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 Bichhri village.      On the  next date  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 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 the environment.  Directions  were  given  to  the  R.P.C.B.  to arrange for  its transportation,  treatment and safe storage according  to   the  technically   accepted  procedures  for disposal of  chemical wastes  of that  kind. All  reasonable expenses  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 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 earth and water in the area, the Court directed the 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

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season. The  respondents were  directed to complete the task within five weeks therefrom.      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- watering 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 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 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  concern,  said  the Court, was  the appropriate  remedial action.  The report of 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 of  India  to  depute  its  experts immediately to  inspect the  area to ascertain the existence and extent of gypsum-based and iron-based sludge, to suggest the handling  and disposal  procedures and  to  prescribe  a package for its transportation and safe storage. The cost of such storage and transportation was to be recovered from the respondents.      Pursuant to  the above Order, a team of experts visited the area and submitted a Report alongwith an affidavit dated March 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 Report stated.  "Above all,  the extent  of pollution in the ground water  seems to  be very great and the entire aquifer 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  high  which  may  cause  the  reddish colorations.  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  have eroded  soil and  caused the extensive damage.  It is  also  possible  that  the  organic contents of the mother liquor would have gone into soil with water together  with the  reddish colour."  The Report  also suggested the  mode of  disposal of  sludge and measures for re-conditioning the soil.

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    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  respondent but  that, the Court said, requires to be examined further.      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. 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  underground  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,  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  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    sludge/contaminated    soil      leachates   as    shown   in    the      photographs and  also supported  by      the results.  The  analysis  result      revealed good  correlation  between      the colour of well water and H-acid      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      groundwater due  to disposal  of H-      acid waste." The report  which is based upon their 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 heading "Site Observations &  Collection  of  Sludge/Contaminated  Soil  Samples",  the following facts are stated:      "2.1.     The Central  team, during      inspection  of   the  premises   of      M/s.HACL,  observed   that   H-acid      sludge      (iron/gypsum)       and      contaminated soil  are still  lying      at different  places, as  shown  in      Fig.1,   within    the   industrial      premises (Photograph  1) which  are

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    the left overs. The area, where the      solar evaporation pond was existing      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.      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      contaminated soil  was  lying  near      the  entombed   pits  for  want  of      additional    disposal    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  of      foreign  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 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  M/s.HACL has a number of other      industrial    units    which    are      operating within  the same premises      without  valid  consents  from  the      Rajasthan Pollution  Control  Board      (RPCB). These  plants are sulphuric      acid (H2SO4),  fertilizer (SSP) and      vegetable   oil   extraction.   The      effluent of  these  units  are  not      properly treated  and the untreated      effluent particularly from the acid      plant is passing through the sludge      dump area playing havoc (Photograph      7).   The    final   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,      So4 :  21,000 mg/1,  Fe : 392 mg/1,      COD :  167  mg/1)  which  was  also      revealed in  the earlier  visits of      the Central  teams. However,  these      units were  not in operation during

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    the present visit."      Under Para 4.2.1, the report stated      inter alia:      "The  sludge   samples   from   the      surroundings of the (presently non-      existent) 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 contaminated      soil is  buried under  the new dump      found by the team."      So much  for the  waste disposal by the respondents and their continuing  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 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 Acid Plant  and the  solvent extraction  plant including oil refinery of  the fourth  respondent with  immediate  effect. Orders  were   also  passed   directing   disconnection   of electricity supply to the said plants. The fourth respondent 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  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 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 constructive 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 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 effluents from the Sulphuric Acid plant.  The construction of temporary tank was supposed to be  an interim  measure pending  the construction  of  an 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  required  in  that  behalf  forthwith. Thereafter, the matter went into a slumber until October 13, 1995. NEERI REPORT:

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    At this  juncture, it  would be appropriate to refer to the Report 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 to its Report at some length:      At Page  7, the  Report mentions  the industrial  wates emerging from the manufacture of ‘H’ acid. It reads:      "Solid wastes  generated from    H-      acid manufacturing process are:      Gypsum sludge  produced during  the      neutralization 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      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.      It  is  estimated  that,  for  each      tonne of H-acid manufactured, about      20   m3    of   wholly    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 of      the wastewater  (90 g/L)  could  be      attributed   to   organics   formed      during    various     stages     of      manufacture.     These      include      naphthalene   trisulphonic    acid,      nitro naphthalene  sulphonic  acid,      Koch  acid   and  H-acid,  besides,      several other intermediates."      At Pages  8 and  9, the  Report describes the manner in which the  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  production  of      375 tonnes  by M/s.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.      *    The sludge  lying in the plant           premises was  entombed in  the           underground pit by RPCB as per           the directions  of the Hon’ble

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         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           by  the   industry   for   the           purpose  was   only  to   that           extent.      *    Remaining  sludge  and  sludge           mixed  soil   were,   however,           present in  the plant premises           as   these    could   not   be           transferred  into  underground           tanks.  It   has   also   been           observed  that   only   sludge           above  the  soil  was  removed           from   the   six   sites   and           transferred 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 operation in the           same premises where H-acid was           earlier   manufactured.    The           acidic wastewater  (around  pH           1.0) presently  generated from           these units  was flowing  over           the abandoned  dumpsite.  This           leaches the  sludge mixed soil           from  the  abandoned  dumpsite           and  the   contaminated  water           flows by  gravity towards east           and  finds   its  way  into  a           nallah  flowing   through  the           compound   and   conveys   the           contaminated   water   to   an           irrigation     canal     which           originates from Udaisagar lake           (Pate 1.4)."      (Emphasis added)      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 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      The field  surveys in  contaminated      fields in zone I and II showed that      no crops  were coming in the fields      particularly in low lying areas. On      some  elevated  areas,  crops  like      jowar, maize  were growing; however      the  growth  and  yield  were  very      poor.      Further it  was also  observed that      even trees  like eucalyptus planted      in contaminated  fields  show  leaf

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    burning and  stunted  growth.  Many      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      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      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  Chapter 4  and 5,  the      ground water  and soils within 2 km      from   the    plant    have    been      contaminated.   After    critically      scrutinising  the   date,  it   was      concluded that  there is  an urgent      need to  work out a decontamination      strategy  for  the  affected  area.      This    strategy    includes    the      decontamination   of    the   soil,      contaminated   ground   water   and      abandoned 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  contaminated water to adjoining lands through canals, leaching of soluble salts, design  of farm  to development  Agroforestry  and/or forestry plantation  with  salt  tolerant  crops/plants  and ground water decontamination. Inter alia, the Report states:      "The   entire   contaminated   area      comprising    of    350    ha    of      contaminated 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 the      expense      of       M/s.Hindustan      Agrochemicals   Ltd.   during   the      monsoon of 1994."      Under Para  6.3.2, the Report suggests "Decontamination Alternatives  for   Groundwater"  including  Bioremediation, Degradation of  H-acid 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

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decontamination  alternatives   including   containment   of contaminated soil,  surface control,  ground water  control, leachate collection and treatment, gas migration 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  NEERI’s      team during  the current study 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      discharged, without  treatment,  on      land  within  the  plant  premises.      This  indiscriminate   and  willful      disposal   activity    is   further      aggravating    the    contamination      problem   in   the   area.   Acidic      effluent  leaches   the  pollutants      from  the  dumped  sludge  and  the      contaminated soil  and  facilitates      their   penetration   through   the      ground and  thereby increasing  the      concentration  of   sulphates   and      dissolved  solids  in  groundwater.      What is  most serious  is the  fact      that    the    industry    produced      chlorosulfonic  acid   for  a   few      months during  late 1992 which is a      hazardous and  toxic  substance  as      per   MEF    Notification    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  concerned      appropriate              regularity      (regulatory?)    authorities    and      without providing for any pollution      control measures. It is, therefore,      essential   for    M/s.   Hindustan      Agrochemicals Ltd.  to comply  with      these requirements for carrying out      the present  industrial activities.      The    abatement     of     further      contamination warrants  the closure      of all  industrial operations  till      an appropriate  effluent  treatment      plant is  installed, and  certified      by RPCB  for its functions of Water      Act."      The Report adds:      "The  Industry  management  in  the      past  [during  1988-89]  has  shown      scant respect for Pollution Control

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    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  concern      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)      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   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  handling of  waste sludge knowing Fully well the implication of such acts." The Report suggests that  compensation should  be paid under two heads, viz., (a)  for the  losses due to damage and (b) towards the cost of  restoration of 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 Chapter-6 thus:      "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  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:      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 January, 1996. We have been taken through the voluminous record.  Submissions 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 officials to  the spot  and report to us the latest position on the following aspects: (i)  Whether the  factories of  Silver Chemicals,  Rajasthan Multi Fertilizers  and Jyoti Chemicals are still working and whether the  machinery installed  in the said plant is still existing?  [This  information  was  required  to  check  the

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statement of  the respondents  that the said units are lying closed since last several years.] (ii) To  report   whether  the   factory  or   factories  of Respondent  No.4,   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? (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 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.      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 discloses the following facts: (1)  The two units, Silver Chemicals and Jyoti Chemicals, do not exist  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. (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  Suphuric 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  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 in the area is concerned, the report stated:      "3.  Village   Bicchidi  and  other      adjoining areas were visited by the      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  M/s.Hindustan      Agro  Chemicals   Ltd.   was   also      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

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    very  difficult   to  estimate  the      exact  quantity   of   the   sludge      required to  be removed. Samples of      sludge   mixed   with   soil   were      collected from  different  part  of      this area after serving due notices      under Environment  Protection  Act,      1986."      So far  as the  water in  the wells  was conceded,  the Report mentioned  that they took samples from the wells from Bichhri and  other surrounding  villages, i.e.,  from thirty two different  locations and  that water in sixteen location 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".      Sri K.N.Bhat,  learned  counsel  for  the  respondents, however,  submitted   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 opportunity to  file objections  to the  said Report  or  to produce material  to contradict the statements made therein. While taking  note of  these submissions,  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,  S.S.P..  Plant  [Phosphate  India]  - November  11,   1995,  G.S.S.P.   Plant   [Rajasthan   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-affidavits filed by these units in 1990-91.      CONTENTIONS OF THE PARTIES:      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  establishes   the culpability  of  the  respondents  for  the  devastation  in village   Bichhri    and   surrounding   areas   and   their responsibility  and   obligation  to   properly  store   the remaining sludge,  stop discharge of all untreated effluents 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 law and lawful  orders on the part of the respondents, 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)  S.C.C.395) as well as the recent Order  of this  Court in  Indian Council  for Enviro- Legel Action v. Union of India [1995 (5) SCALE 578]. Learned 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.      The learned  counsel for  the State  of Rajasthan,  Sri

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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 circumstances.      Sri K.B.Rohtagi,  learned  counsel  for  the  R.P.C.B., invited our  attention 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 environmental laws  and that after conferment of such power, they did  pass orders  of closure. He denied the allegations of malafides  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 remedying the appalling conditions  in   the  village   due  to   the  acts  of  the respondents.      Sri K.N.Bhat, learned counsel for the respondents, made the following 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 Constitution, therefore, does not lie against them. (2)  The R.P.C.B.  has  been  adopting  a  hostile  attitude towards these  respondents  from  the  very  beginning.  The Reports submitted  by it  or obtained  by it are, therefore, suspect. The  respondents had  no opportunity  to  test  the veracity of  the said Reports. If the matter had been fought out in  a properly  constituted suit,  the respondents would have had  an opportunity  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 Zine  Limited was  already in  existence close  to Bichhri village  and has  been discharging  toxic  untreated effluents in  an unregulated  manner. This  had affected the water in  the wells, streams and aquifers. 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  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 of  the  Central  team, R.P.C.B. and  NEERI cannot 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 been prescribed in 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 committees that  sludge is  still lying  around  within  and outside the  respondents’  complex  and/or  that  the  toxic wastes from the Sulphuric Acid Plant are 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

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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 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 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  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 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  Corporation  v.  Union  of  India  (1991  (4) S.C.C.584). The  law laid  down in Oleum 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, industry  and public, this Court may direct the Government of  India to  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. Proceedings by way of a writ in  this Court  under Article  32 or  in the High Court 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.      RELEVANT STATUTORY PROVISIONS:      Article 48A is one of the Directive Principles of State Policy. It says that the State shall endeavor to protect and improve the  environment and  to safeguard  the forests  and wildlife  of   the  country.   Article  51A   sets  out  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 living creatures.....".      The problem  of  increasing  pollution  of  rivers  and streams in  the 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 treatment and that pollution of rivers  and streams  was causing  damage to the country’s

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economy. A  committee was  set up  in 1962  to draw  a draft enactment 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 expert committees also made their recommendations meanwhile. Since an  enactment on the subject was relatable to Entry 17 read with  Entry 6 of List-II 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 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   accordance  with   such standards as  may be  laid down  by the State Board to enter whether  (directly   or  indirectly)   into  any  stream  or well.....". Section  25(1), 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 stream or well." As amended 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’]; or (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  amendment Act  vide Gazette Notification dated May 9, 1990.] Section 33 empowers 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 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 Pollution 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.      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 "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-organism  and  property."  The  preamble  to  the  Act

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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 June, 1972 in which India also participated. Section 3 empowers the Central Government "to  take  all  such  measures  as  it  deems  necessary  or expedient for  the purpose  of protecting  and improving the quality of  the environment  and preventing, controlling and abating environmental pollution". Sub-section (2) elucidates the several  powers inhering  in Central  Government in  the matter of protection and promotion of environment. Section 5 empowers  the   Central  Government   to  issue  appropriate directions to  any person,  officer or  authority to further the objects  of the enactment. Section 6 confers rule-making power upon  the Central  Government 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  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 (Management and  Handling) Rules,  1989 in  exercise of  the power conferred  upon 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:      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  appropriate  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  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 jeopardizing  the right  to life  of the citizens of this country or  of any  section thereof,  it is the duty of this Court 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 this Court in several decisions,  is   invaded  and  seriously  infringed  by  the 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, can it be suggested with any modicum of reasonableness that this Court has  no power to intervene and 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 safety  norms provided by law, the R.P.C.B. was pound to act. On  that account, it cannot be said to be acting out of

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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  of NEERI.  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 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 [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 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 made the basis of passing Orders by this Court from time to time.      Now coming  to the  question of  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 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  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  villages 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  the  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 submission that the entire sludge has been  properly stored  by  or  at  the  expense  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  relied upon  by Sri  Bhat occurs,  viz., "remaining work  is likely to be completed by 15th November,

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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  provided with proper outlets  for the  exit of  gases which  may form as a result of  possible chemical  reactions in  the sludge mass. The tanks  have also  been provided with reinforced concrete to prevent propping of the roof. Remaining work is likely to be completed  by 15th  November, 1992." We find it difficult to read the said sentence as referring to the storage of the remaining about  1700 MT  of sludge. When the storage of 720 MT itself  took  up  all  the  six  tanks  provided  by  the respondent, where  was the  remaining  1700  tonnes  stored? Except relying  upon the  said sentence repeatedly, Sri Bhat has not  been able  to tell  us where  this 1700 MT has been stored, whether  in tanks  end 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 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 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  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’  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 pollution in the wells, soil and the aquifers is concerned, it  is clearly established 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  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  accordingly  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 general, damage which is eloquently portrayed in the several Reports of  the experts  mentioned  hereinabove.  NEERI  has worked out  the cost  for repairing  the damage at more than

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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 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 responsibility 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  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 question 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-      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 to provide that      the   hazardous    or    inherently      dangerous activity  in which  it is      engaged must  be conducted 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 responsable      care and  that  the  harm  occurred      without any negligence on its part.      Since the persons harmed on account      of  the   hazardous  or  inherently      dangerous 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 inherently  dangerous  activity.      If the  enterprise is  permitted to      carry on an hazardous or inherently      dangerous activity for its profits,      the  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

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    dangerous    activity     as     an      appropriate item  of its overheads.      Such   hazardous    or   inherently      dangerous  activity   for   private      profit can  be  tolerated  only  on      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...........We  would   therefore      hold that  where an  enterprise  is      engaged   in    a   hazardous    or      inherently dangerous  activity  and      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 compensate all      those  who   are  affected  by  the      accident and  such liability is not      subject to  any of  the  exceptions      which   operate    vis-a-vis    the      tortuous   principle    of   strict      liability under  the rule in Ryland      v. Fletcher [supra].      We would  also like  to  point  out      that the measure of compensation in      the kind  of cases  referred to  in      the  preceding  paragraph  must  be      correlated  to  the  magnitude  and      capacity of  the enterprise 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." 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 the observations in the concurring opinion of Ranganath Misra,CJ.,  in Union Carbide Corporation [1991 (4) S.C.C. 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      Court   could    not   reach    the      conclusion   that    Shriram   (the      delinquent company) came within the      meaning of ‘State’ in Article 12 so      as to  be liable  to the discipline

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    of Article  21 and  to be subjected      to a proceeding under Article 32 of      the  Constitution.  Thus  what  was      said was essentially obiter.      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  binding  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 behalf of  himself and  two other  learned Judges]  has  not expressed any  opinion on this issue. We on our 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  of   that  case.  Having  declared  the  law,  the Constitution  Bench   directed   the   parties   and   other organizations 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 that the Court cannot direct the Central Government to determine and ------------------------------------------------------------ **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 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 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  take 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. This is a question upon which we do not wish to express any  opinion in  the absence of a full debate at the Bar.      recover  the   cost  of   remedial  measures  from  the

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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   necessary  or   expedient  for  the  purpose  of protecting     and      improving     the     quality     of environment.........".  Section   5  clothes   the   Central Government  [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 purpose. In  the present  case, the said powers will include giving directions for the removal of sludge, for undertaking remedial measures  and also  the power to impose the cost of remedial measures  on the offending industry and utilize 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 warranted. We find that similar directions have been made in a recent  decision of  this  Court  in  Indian  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:      "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      compensate to  farmers. It  was the      duty of  the  State  Government  to      ensure   that   this   amount   was      recovered from  the industries  and      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.      Sri  K.N.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 Lords 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  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:      "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      the damage  which  is  the  natural      consequence of  its escape.  He can

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    excuse himself  by shewing that the      escape was owing to the plaintiff’s      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      neighbor, who has brought something      on his  own property  which was not      naturally there, harmless to others      so long  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." 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 defendants  - which must be satisfied to attract  this rule  are "foreseability" 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. Eastern Counties  Leather,  PLC  [1994  (2)  W.L.R.53].  The plaintiff,  Cambridge   Water  Company,   was  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 decreasing of  pelts. For  that purpose,  the defendant  was using an oregano chlorine called P.C.E. P.C.E. was stored in a tank  in the  premises of  the defendant.  The plaintiff’s case was  that on account of the P.C.E. 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  (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 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 neighbor  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 the  defendant, the  House of  Lords allowed  the  appeal holding that  foreseability 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

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use but  dismissed the  suit, as stated 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 forseable by the defendant.      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  Burnie  Port Authority v.  General Jones  Pty Ltd.  [(1994) 68 Australian Law Journal 331]. The respondent, General Jones Limited, has stored frozen  vegetables in three cold storage rooms in the building owned  by  the  appellant,  Burnie  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 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 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 substance 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 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 dangerbus 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 Authority owed a non-delegable duty of care to General Jones to ensure  that its  contractor  took  reasonable  steps  to prevent the occurrence of a fire and the breach of that duty attracted liability  pursuant to  the ordinary principles of negligence for the damage sustained by the respondent.      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 from the fact that it is binding upon us. [We have disagreed with the view  that the  law  stated  in  the  said  decision  is obiter.] According  to this  rule, once the activity 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 activity  irrespective of the fact

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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 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  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  him  was  foreseeable  by  the enterprise.      Once the  law in  Oleum Gas Leak Case is held to be the law applicable,  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 measures to remove the sludge and other pollutants lying in  the affected  area [by  affected area, we mean the area of about 350 he, 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 spruces.  Sections 3 and 4 of Environment [Protection] 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 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.      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.      "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  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  Organization  for      Economic      Co-operation      and      Development [OECD] during the 1970s      when   there   was   great   public      interest in  environmental  issues.      During this time there were demands      on     government     and     other      institutions to  introduce policies

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    and mechanisms  for the  protection      of the  environment and  the public      from the threats posed by pollution      in a modern industrialized society.      Since   then    there   has    been      considerable  discussion   of   the      nature   of   the   polluter   pays      principle, but the precise 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 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’, 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      Community, and that action is to be      based on three principles: the need      for preventative  action; the  need      for  environmental   damage  to  be      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.] Thus, according  to this  principle, the  responsibility for repairing the  damage is  that of  the  offending  industry. Sections 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 appropriate that the task of determining the amount required for   carrying    out    the    remedial    measures,    its recovery/realisation  and   the  task   of  undertaking  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 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.

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The Report  of NEERI  has worked  out the  cost at wore than Rupees forty  crores.  The  estimate  of  cost  of  remedial measures is,  however, not  a technical  matter  within  the expertise of  NEERI officials.  Moreover, 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 the 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 now  with notice to the respondents, which amount should be paid to Central Government and/or recovered from them  by the  Central Government.  Other directions are also called  for in the light of the facts and circumstances mentioned above. 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: (I)  Silver Chemicals  [R-5] and  Jyoti Chemicals  [R-8] had manufactured about 375 MT of ‘H’ acid during the years 1988- 89. This  had given rise to about 8250 m3 of waste water and 2440 tones 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 tones of sludge, about 720 tones has been stored in the pits provided by  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  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 discharged 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  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  respondent  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, 1995. An assertion is  made before  us that permanent E.T.P. has also been constructed for the Sulphuric 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 subsequent to

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April, 1994. (III)     The damage  caused by  the untreated  highly toxic wastes resulting  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 underground water and 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 he has become seriously contaminated. The water in the wells in that area is not fit for consumption  either by  human beings  or cattle.  It has seriously affected  the productivity  of the land. According to  NEERI  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  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. (V)  Sections 3  and 5  of the Environment [Protection] Act, 1986, apart  from other  provisions of  Water and  Air Acts, empower the  Government 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 Section 2(a)  of   the  Environment  [Protection]  Act.  This  power includes  the  power  to  prohibit  an  activity,  close  an industry, 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 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: 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 of ‘H’ acid and the discharges from the Sulphuric Acid Plant of Respondents 4  to 8.  Chapters-VI and  VII in  NEERI  Report [submitted in  1994] shall  be deemed  to be  the show-cause notice  issued  by  the  Central  Government  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  Secretary,  Ministry  of Environment and  Forests, Government of India, [M.E.F.]. The Secretary  shall   thereupon   determine   the   amount   in consultation with  the experts  of his  Ministry within  six weeks of  the submission  of the  explanation  by  the  said Respondents. The  orders passed  by the  Secretary, [M.E.F.] shall be  communicated to  Respondents 4  to  8  -  and  all

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concerned -  and shall  also be  placed before  this  Court. Subject to  the 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  assumption that  the affected area is 350 ha,  as indicated  in the  sketch at  Page 178  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 lmmovable 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 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 allowed  to flow  through 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,  unsuspecting  villagers, despoiling their  land, their water sources and their entire environment - all in pursuance of their private profit. They have forfeited  all claims  for any  consideration  by  this Court. Accordingly, we herewith order the closure of all the plants and  factories of  Respondents  4  to  8  located  in Bichhri village.  The R.P.C.B.  is directed  to seal all the factories/units/plants of the said respondents forthwith. So far as  the Sulphuric  Acid Plant  is concerned,  it will be closed at  the end  of one  week from  today,  within  which period Respondent  No.4 shall 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  end of  one week from today. The re-opening of these plants  shall   depend  upon   their  compliance   with  the directions made  and obtaining  of all requisite permissions and consents from the relevant authorities. Respondents 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  organization  on  their  behalf  to institute suits in the appropriate civil court. If they file the suit or suits in forma pauperize, the State of Rajasthan shall not  oppose their  applications for  leave to  sue  in forma pauperize. 4.   The Central  Government shall consider whether it would not be  appropriate, in  the light of the experience gained, that chemical  industries 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 scrutinizing  their   establishment  and   functioning  more rigorously. No  distinction 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, should be allowed to be established only after taking

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into considerations  all the environmental aspects and their functioning should  be monitored closely 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 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. 5.   The Central  Government and  the  R.P.C.B.  shall  file quarterly Reports  before this  Court with  respect  to  the progress  in   the  implementation  of  Directions  1  to  4 aforesaid. 6.   The suggestion  for establishment of environment courts is  a   commendable  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 there is no proper appreciation of the  significance of  the environment matters on the part of those  in charge  of 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 implementation  of their orders. All this points to  the need  for creating  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. 7.   The  Central   Government   may   also   consider   the advisability of  strengthening  the  environment  protection machinery both at the Center 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  environmental audit by specialist bodies created on a permanent basis  with  power  to  inspect,  check  and  take necessary action not only against erring industries 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  ultimate 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, deserve encouragement wherever their actions are found to be in furtherance  of public  interest. The  said sum  shall be deposited in  this Court  within two  weeks from  today.  It shall be paid over to the petitioner.      Writ Petition  (C) No.967  of 1989  is allowed with the above directions with costs as specified hereinabove.      WRIT PETITION (C) NO.76 OF 1994:      In view  of the decision in Writ Petition (C) No.967 of

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1989, the writ petition is dismissed.      No costs.      WRIT PETITION (C) NO.94 OF 1990:      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 accordingly dismissed.      No costs.      WRIT PETITION (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 accordingly dismissed.      No costs.