IN THE HIGH COURT OF ORISSA
P.PASAYAT AND D. MISRA, JJ
AIR 1996 ORISSA 195
Talcher Swasthya Surakshya Parishad
Chairman-cum-Managing Director, Mahanadi Coalfields Ltd.
PASAYAT, J:- 1. This application is stated to have been filed in public interest by one Bibhudhendra Pratap Das on behalf of Talcher Swasthya Surakshya Parishad, Backdrop in which this application has been filed is essentially as follows:-
Talcher in the State of Orissa is famous for rich coal deposit, and large quantity of coal is excavated from different mines situated there daily. Because of such extraction, Talcher town and its nearby areas are being polluted environmentally. There is no pure air to breathe, and pure water to drink. Large number of persons have been affected being exposed to dust and effluent materials which they have to perforce inhale. Water has become polluted because of dust and effluent articles rendering it unsuitable for drinking purpose. Mahanadi Coalfields Limited (hereinafter referred to as 'the company') is operating in the areas and necessary steps have not been taken by it to avoid pollution of air and water. There has been flagrant violation of the provisions of Water (*Prevention and Control of Pollution) Act, 1974 (in short, 'the Water Pollution Act') and Air (Control and Prevention of Pollution) Act, 1981 (in short, the 'the Air pollution Act'). Because of the extraction done from underneath the ground surface, land is becoming loose, and there have been several instances of sipage of water and subsidence of earth, thereby endangering human life and property.
2. The company in its counter affidavit has denied the allegations made by the petitioner. It is stated that various safety and remedial measures have been undertaken and fool-proof steps have been taken to ensure that no water and air pollution taken place Natural eco system has been maintained. Steps have been taken to arrest the adverse effects of the operations and to see that the environmental condition and eco-friendly status are maintained. Mining operation at Talcher is subject to various checks and counter-checks and after being satisfied that all safety measures have been taken statutory bodies like Director of Mines Safety permit operation, which has been done in the case of petitioner. A master plan of environment has been prepared by Central Miniing Planning and Design Institute, a subsidiary of Coal India Ltd. for colleries at Talcher, Remedial measures for environmental protection has been indicated after a detailed indepth study of various para-meters which are likely to affect the environment as caused by Coal mining operations. the government of India is required to approve the Environmental Management Plan before any new project is approved for functioning. In essence the allegation of air and water pollution has been denied. The company has further stated that necessary steps have been taken to ensure that there is no water pollution.
3. The Orissa State Prevention and Control of Pollution Board (hereinafter referred to as 'the Pollution Board') has also filed counter affidavit. It has indicated that the parameters fixed for finding out whether there has been any air or water pollution has been kept in view while making periodic checks and taking samplings. The Inspecting Officer of the Pollution Board had visited several areas on 21-11-1993 and 22-11-1993. No major crack or depression could be observed in Talcher area, i.e., on the surface. But there were some cracks in the buildings. No definite opinion could be given as to whether the cracks were because of mining activities or for any other reasons. The monitoring ambient air qwuality in the area did not disclose any potentiality of air pollution on analysis of the ambient air quality. At the time of giving consent certain special conditions had been imposed which have been complied with Samples of discharged effluents of coal mines located at Talcher were collected and after analysis it was found that out of seven collieries, four collieries are not meeting the standard prescribed by the Pollution Board, and therefore, it was treated to be polluted. The four collieries have been identified to be Talcher Underground, Jagannath, South Balanda and Bharatpur Collieries. Reference is made to the inspection report by the Assistant Environment Scientist, a copy of which is annexed as Annexure.A.5 to the counter affidavit filed.
4. Environmental law is an instrument to protect and improve the environment and to control or prevent any act or omission polluting or likely to pollute the environment. In view of the enormous challenges thrown by the industrial revolution, the legislatures throughout the world are busy in this exercise. Many have enacted laws long back and they are busy in remodelling the environmental law. The others have moved their law making machineries in this direction except the under developed States who have yeat to come in this wave length. India was one of these few countries which pid attention right from the ancient time down to the present age and till date, the tailoring of the existing law to suit the changing conditions is going on. The problem of law-making and amending is a difficult task in this area. there are a variety of colours of this problem. For example, the industrial revolution and the evolution of certain cultural and moral values of the humanity and the rural and urban areas developments in agricultural technology waste, barren or industrial belts; developed, develping and under-developed parts of the lands, the rich and poor Indians; the population explosion and the industrial implosion; the people's increasing awareness and the decreasing State Exchequer; the promises in the political manifestos and the State's development action. In this whole gamut of the problems the tiwari Committee came out with the data that we have in India 'nearly five hundred environmental laws' and the Committee pointed out that no systematic study had been undertaken to evaluate those legislative developments. Some legal controls and techniques have been adopted by the legislature in the field of Indian Environmental Law. Different legislative controls right from the ancient time, down to the modern period make interesting reading. Attention has to be paid to identify the areas of great concern to the legislature, the techniques adopted to solve those problems; the pollutants which required continuous exercise; the role of legilsatures and people's participation outside. These are some of many areas which attract the attention in the study of history of the Indian Environmental Law.
5. The rivers also enjoyed a high position in the life of the society. They were considered as Goddesses having not only the purifying capacity but also self purifying ability. Fouling of the water of a river was considered a sin and it attracted punishments of different grades which included, penance, outcasting, fine, etc. The earth or soil also equally had the same importance, and the encient literature provided the means to purity the polluted soil. The above are some of the many illustrations to support the view that environmental pollution was controlled rigidly in the ancient time. It was not an affair limited to an individual or individuals but the society as a whole accepted its duty to protect the environment. The 'dharna' of environment was to sustain and ensure progress and welfare of all. The inner urge of the individuals to follow the set norms of the society, motivated them to allow the natural objects to remain in the natural state. Apart from this motivation, there was the fear of punishment. There were efforts not just to punish the culprit but to balance the eco-system. The noteworthy development in the period was that each individual knew his duty to protect the environment and he tried to act accordingly. Those aspects have been highlighted by a learned Author c.M.Jariwala in his article "Changing dimensions of Indian environmental Law" in the book 'Law and Environment' by P.Leelakrishnan.
6. The Economic and Social council of the United Nations passed a resolution on the 30th July, 1968 on the question of convening an International Conference on problems of human environment. In the United Nations Conference on Human Environment at Stockholm from 6th to 16th June, 1972, Proclamation was made on United Nations on Human Environment. It was stated in the proclamation in these profound words.
"Man is both greature and moulder of his environment which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet a stage has been reached when through the rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspects of man's environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights even the right to life itself.
The protection and improvement of the human environment is a major issue which affects the well-being of people and economic development throughout the words, it is the urgent desire of the peoples of the whole world and the duty of all Governments."
7. When the necessity to promote the environment turned grave, doubt was expressed by some commentation whether the issue of 'the environment' would last. They have been proved wrong, since it is clearly one of the big issues, perhaps the biggest issue of the 1990's. It is a big issue in political terms, since protection of the environment is high on most people's priorities for the 1990s. As a result political parties and governments are falling over each other in their eagerness to appear green, even if as yet their actions rarely match their rhetoric. It is big in terms of the size of the problem faced and the solutions required; golbal warming, the destruction of the ozone layer, acid rain, deforestation, overpopulation and toxic waste are all golbal issue which require an appropriately golbal response. It is big in terms of the range of problems and issues - air pollution, water pollution, noise pollution, waste disposal radioactivity, pesticides, countryside protection, conservation of wildlife - the list is virtually endless. As observed by Siwon Ball and Stuart Bell in 'Environmental Law':
".....In the words of the white Paper on the Environment. This Common Inheritance (Cm.1200, 1990), the issues range 'from the street corner to the stratosphere'. Finally, it is big in terms of the knowledge and skills required to understand a particular issue, Law is only one element in what is a major cross-disciplinary topic. Lawyers need some understanding of the scientific, political and economic processes involved in environmental degradation. Equally, all those whose activities and interests relate to the environment need to acquire an understanding of the structure and content of environmental law, since it has a large and increasing role to play in environmental protection."
Apart from the dire4ct cost to busine4ss of complying with stricte4r re4gulator4y controls4444, the4 pote4ntial liabilitie4s for non-compliance4 are also incre4asing. The4se4 liabilities fall into five general categories.
(a) Criminal liabilities:
The number of criminal offences for non-compliance with environmental legilsation is immense, and in recent years the regulatory agencies have shown an increased willingness to resort to prosecution. Private prosecution is also a possibility. Fines will be the normal penalty, though in a number of cases sentences of imprisonment have been imposed (there is normally a potential personal liability for directors and senior managers) Maximum fine levels have risen in recent years, as have actual levels of fines imposed.
(b) Administrative sanctions:
In most regulatory systems there is a ranges of options available to the regulator, including variation, suspension or revocation of a licence. Since these steps may lead to the closure of a plant, they are obviously of great importance.
(c) Clean up costs:
In most environmental legislation there is a power to clean up after a pollution incident and recover the cost from the pulluter or (in some cases) the occupier.
(d) Civil liability:
There is growing interest in the 'toxic torts' although many of the actions have in fact been around for a long time. Many environmental actions rest upon strict liability. Although liability may often be difficult to establish, the size of claims may be very high indeed.
(e) Adverse publicity:
In practice the publicity attracted as a result of infringements of the law may be as costly as any direct costs.
In the light of all these risks, not to mention the increased costs of waste disposal and of complying with stricter standards, some of the most significant recent developments in the environmental field relate to management issues. For example, a British Standard on Environmental Management Systems (BS 7750) has completed its pilot programme and is expected to be finalised by the end of 1993. This relates mainly to the introduction of appropriate systems. The EC has agreed a Regulation on Eco-Management and Auditing (Regulation, 1836/93), which goes further in some respects by requiring a public statement of environmental performance, external verification procedures, and a commitment to continuing improvements in environmental performance. Both these schemes are voluntary in the sense that there is to be no compulsion to join them. However, it appears that the pressures from supply chains and from the public may well be such that in practice many firms will be forced to introduce some form of environmental auditing of their business.
8. In the aforesaid background it is needless to say that all concerned, i.e., the Government, the Government agency like the Pollution Board, the coal-mines owners operating in the area have to ensure that at the after of industrial development, environment and consequentially health of the people do not get sacrificed. It is the function of Pollution Board to ensure that rigid guidelines required to be followed in the matter of air and water pollution are maintained, and no deviation is done. Statistics may not always reflect the correct state of affairs. In the maze of figures, let welfare of people be not lost. From the affidavits filed by the opposite parties, we find that though air pollution was (not>) noticed, there was water pollution so far as four collieries are concerned. Consequences of such pollution have to be determined by the Pollution Board and on such determination being done, strict steps should be taken to see that there is no recurrence. The consequential action pursuant to such detection is a matter for the Pollution Board to take. We express no opinion on that aspect.
9. So far as cracks in the buildings are concerned, a mere statement that it could not be ascertained whether the cracks were due to mining activities or for any other reason is not sufficient, and an indepth study has to be undertaken to ensure that cracks are not due to mining activities. For industrial development, the people should not become ill on account of collapse of buildings, surface erosion, and water pollution.
10. We direct the State government to monitor sampling and analysis activities to be conducted by the Pollution Board in accordance with law. The Pollution Board should rise to the occasion, and see that the purpose of its creation is served in reality and not in paper. Its duty is to take strigent steps in case of detection of any water or air pollution. That would be a small step in the big problem of controlling air and water pollution. It is stated that the company has in the meanwhile spent rupees one crore for making massive plantation and green belts around the mines through Orissa Forest Development Corporation. The report of the Central Ground Water Board, South Eastern Region, Bhubaneswar filed, goes to show that the annual and post-monsoon trend shows that there is no significant rise or fall of water level (underground). It is further stated that presently coal is being extracted from under ground mines by Board and Pillar method. It is indicated that in depillaring zone of habitated area all safety precautions are taken to avoid any sort of subsidence, crack, potholes, etc. which may damage the structure, settlement vegetation, water body etc. The Coal Mines Regulation, 1957 provides certain norms relating to avoidance of disturbance on surface. These need to be strictly followed. Stowing of sand in the required ratio should be adhered to. The authorities under the Mines Act should make periodic verification to ensure that mines safety is maintained. It is not to be forgotten that while everything on the surface appeared to be normal in two areas, disasters in coal mines in Bihar State caused immense loss of lives. With the hope that there is no recurrence of such disasters in Talcher area, we part with the case.
The application is disposed of accordingly.
D.Misra, J. II.I agree.