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PETITIONER: F.B. TARAPORAWALA AND OTHERS ETC.ETC.

       Vs.

RESPONDENT: BAYER INDIA LTD. AND OTHERS

DATE OF JUDGMENT:       09/09/1996

BENCH: KULDIP SINGH, B.L HANSARIA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T HANSARIA. J.      Industrial growth, yes; but by exposing a large segment of  society   to  the   risk  of   losing  lives,  no.  This apprehension is  not imaginary.  Bhopal disaster  brought to the knowledge  of all  what  a  tragedy  can  be  caused  by chemical industries. In the wake of what happened there more than a  decade ago,  industrialists engaged in production of chemicals  started  thinking  of  taking  precautionary  and protective measures to see that if worst wore to befall, how could their financial liability be taken care of. 2.   The aforesaid  mental make-up led some leading chemical manufacturers in  the country, like Bayer India Limited, one of the respondents herein, to approach the Bombay High Court in a  pending writ  petition filed  by some builders seeking certain orders  of the  High  Court.  In  one  of  the  writ petitions taken  by the  High Court  for hearing,  which was numbered  as  4497/90,  the  Court  required  the  Municipal Corporation to  re-examine the  building plans  and to  pass appropriate  orders   keeping  in   view,  inter  alia,  the provisions of  section 46  of the  Maharasthra Regional  and Town Planning  Act. The  matter was brought to this Court by the  respondents   contending,  inter   alia,  that  in  the sanctioned  plan  the  area  had  been  shown  reserved  for industrial user.  This Court  permitted the  respondents  to file a  review petition  before the  High Court. On being so approached,  the   High  Court  dismissed  the  intervention application of  the respondents  and directed  the Municipal Corporation to  permit  construction.  This  order  led  the respondents  to   approach  this   Court  again   by  filing Interlocutory Application  in  the  disposed  of  SLP.  This Court, by  an order  passed on  24.2.1993, directed the High Court to  dispose of  the  review  application  and  further directed  to   maintain  status  quo,  which  prevented  the appellants tn carry on construction activity within one k.m. radius from the factory premises. The High Court disposed of the review  application on 26.9.1994 by giving the following directions :-      "(i) No  additions or modifications      shall be  permitted in  respect  of

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    buildings that  have been completed      or those were under construction as      on the data of stay order passed by      this Hon’ble Court on 8.1.1996.      (ii) In  respect of  schemes  where      permission may  have  been  granted      but no actual construction has been      commenced as  on the  date of  this      Court’s  order   dated  8.1.1991  ,      prohibition in  respect of  a total      ban on  further construction within      1  km.  radius  from  the  chemical      units shall apply.      (iii)  Save   and  except   in  the      aforesaid  cases,  the  stay  order      passed by  this Court  on  8.1.1991      shall continue  to the  extent that      there shall  be  a  prohibition  in      respect of  any further permissions      or for  that further permissions or      for that matter construction within      1 k.m.  radius  from  the  chemical      factories.      (iv) The  stay  order  shall  stand      vacated only  in those of the cases      as indicated where construction has      been commenced  and was required to      be stopped by virtue of the stay of      this Hon’ble  Court."These  appeals      question the  aforseaid  directions      of the High Court. 3.   The appeals  were heard  on a  number of  occasions and being of  the prima  facie view  that  by  giving  aforesaid immunity to  the industrialists injustice has been caused to the   residents of  the locality  inasmuch as prohibition of constructions within 1 k.m. radius like- Thane did adversely affect the  right to  reside in the locality, leaving at the same time  the large  number of inhabitants already residing exposed to  the risk  mentioned above,  it was thought by us that  if   the  industrialists  wanted  to  safeguard  their interest in  the event  of some  accident happening in their factories, it  was for  them either to shift their factories to such places where the residential area could be kept wide apart from  the factory  premises. But  then,the response of the respondents to the first proposal being negative because of the  huge financial involvement we applied our mind as to whether we  could examine  at  our  level  the  question  of relocation. 4. Respondents  were heard  on this aspect on many occasions and in  the written  submissions filed  on 2.9.1996 by Bayer India. which  can be  taken as a representative stand of the respondents, it  has been  stated relocation is not possible logistically,  financially   or   otherwise.   The   written submission  mentions   about  various  aspects  relating  to relocation at pages 16 to 20. It has been felt by us that we have neither  the expertise nor are in possession of various information, which  shall be  required. to decide one way or the so  far as  the question  of relocation is concerned. In such a  situation what  has appealed  to us is to leave this matter to be examined by an Authority which we would require the Central  Government  to  constitute,  as  visualized  by section 3(3)  of the  Environment Protection  Act, 1986 (the Act). It  is not  necessary to  deal at length as to what is visualized by  this Act and why ? This has been explained in detail in  a judgment  delivered by one of us (Kuldip Singh,

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J.) on  August 28, 1996 in Writ Petition (C) No.914 of 1991, on behalf  of a  3-Judge Bench.  The concept of "sustainable development", whose  salient points  have been  noted in the aforesaid Judgment, does call upon one and all to see to the maintenance  of   balance  between   development   and   its sustenance in future. 5. In  the appeals at hand, we are confronted with a problem which has  more serious  consequences and  which touches the core of  Article 21 of the Constitution inasmuch as the very lives of  the inhabitants  living around  the  factories  in question are  in great jeopardy so much so that any probable accident in  the factories  may see  annihilation  of  large number of  inhabitants. May  be the  accident does  not take place, as  has been  submitted by Shri Jaitley appearing for the respondents.  There is,  however, no  ruling out  of the same altogether as Bhopal has shown. No risk can, therefore, be taken.   But  then relocation  does need  a deeper  probe because of the various factors which would be required to be gone into.  Such an  exercise can  usefully be  taken by  an Authority of which mention has been made above. 6. We,  therefore, direct  the constitution  of an Authority under section 3(3) of the Act by the Central Government, who shall confer  all the  necessary powers under the Act on the Authority, which  shall be constituted within one month from the receipt  of this  order. The  Authority shall submit its report to  the Central  Government within three months after examining and  deciding all  the relevant  issues  including those mentioned  by us.  This would  be  done  by  affording reasonable opportunity  of hearing to the concerned parties. Follow up actions shall be taken by all concerned as per the recommendations of the Authority within reasonable time. 7. As  the constitution  and deliberation  of the  authority would take times, and its ultimate result cannot be foreseen at this  stage, we  have thought it fit to direct the Bombay Municipal Corporation  to proceed  further  with  the  plans which had  been submitted  by the  appellants, some of which also came to be sanctioned. But then, as sanctioning in some cases was  about a  decade back  and  as  the  scenario  and thinking on  the subject  has since  then changed  a lot, so also the building bye-laws, we have thought it fit to direct the Corporation  to re-examine  the  question  of  grant  of sanction on  the basis  of the  existing rules and bye laws. The Corporation may proceed with this exercise, but it would await the  result of  the report of the aforesaid Authority. We have  desired the  Corporation to  undertake this work at this stage  itself  because  the  matter  has  been  delayed already and  Authority’s deliberation would not be available for quite some time. 8. In the aforesaid view of the matter, the review petitions filed before  the High  Court by  the  respondents  are  not required to  be kept alive and they would stand dismissed on withdrawal, to  which effect  prayer was made before us. The impugned directions  of the  High Court  would automatically lapse. 9. The  appeals are  disposed of  with these  directions. No order as to costs.