SUPREME COURT OF INDIA
Hon'ble Justice A.S. Anand, Hon'ble Justice B.N. Kirpal and Hon'ble Justice V.N. Khare.
Civil Appeal No. 3564 of 1998 Arising out of Special Leave Petition (C) No. 22597 of 1997. D/d.
Reported in AIR 1998 SC 2578 = (1998) 6 SCC 335 = 1998 (5) JT 214 = 1998 (4) SCALE 322 =
1998 (8) Supreme 169 = 1998 AIRSCW 2609
1. Leave granted
2. This appeal is directed against the judgment and order of a Division Bench of the High Court of Judicature at Madras in Writ Petition No.17333 of 1995, dated 17th July, 1997.
3. After hearing learned counsel for the parties and examining the record we are satisfied that the matter before the High Court was one of public interest and required an in-depth examination by the Court. The Division Bench of the High Court, it appears to us, failed to appreciate the true significance of the matter regarding the need to arrest the unabated pollution, which had become a health hazard and environmental enemy because of discharge of objectionable effluents from the distillery into Bhavani River and adjoining areas. The High Court fell in error to dispose of the writ petition, merely on the consent of the Tamil Nadu Pollution Control Board. Matters like this, which involve greater public interest should not normally be decided merely on consent of the Pollution Control Board. We are somewhat unhappy about the manner in which the Pollution Control Board gave its consent unmindful of the grave consequences, which have been amply demonstrated before us. The order of the High Court, therefore, cannot be sustained. We accordingly, allow this appeal and set aside the order of the High Court and remand the writ petition to it for its fresh disposal in accordance with law.
4. During the pendency of the proceedings in this Court, certain affidavits and undertakings were filed on behalf of the industry respondent No.6 and on 29th January, 1998 we gave certain directions including the direction for the closure of the operation of the Industry (respondent No.6) on or before 2nd February, 1998 because of continuing pollution from its distillery and sugar division. We also directed inspection of the industry and the site adjacent to it by NEERI, who was also asked to submit a report to this Court whether the pollution control devices have been installed by the industry and proper steps taken to control pollution in accordance with the provisions of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter Act) or not NEERI was also directed to inspect the surrounding areas with a view as assess damage, caused due to discharge of effluent by the Industry and to indicate the cost of restitution.
5. Pursuant to the directions issued by us on 29th January, 1998, NEERI has submitted two reports. The first inspection report was submitted on 9th March, 1998 and the second on 1st May, 1998. We have perused those reports and since we are remanding the writ petition to the High Court for its disposal, it appears appropriate to us, to request the High Court to consider those reports and the suggestions made therein while passing orders in the Writ Petition from time to time.
6. Mr.Venugopal, learned Senior counsel appearing for the Industry, submits that remedial steps have already been taken as suggested by this Court as well as by NEERI and that Pollution Control Devices have been fixed and effective steps taken to prevent pollution of water and the industry may, therefore, be permitted to operate.
7. Mr.Harish Salve, learned amicus curiae on the other hand submits that all steps required to check pollution have not been taken and in support of his submission, relies upon the two reports submitted by NEERI to this Court.
The High Court may, therefore:
1. Consider in consultation with NEERI, whether the Industry may be permitted to have a test run or become operational and, if so, with what further safeguards and for remedial measures to be taken. For this purpose NEERI shall appear before the High Court of Madras and inform the Court regarding the viability of the Industry starting either the test run or its separation. The High Court may, thereafter pass appropriate orders regarding the lifting of the ban on operations which was imposed by this Court on 20-1-1998.
2. The High Court may also direct supervision by any of the agencies including NEERI or the Pollution Control Board, with a view to see that the Industry does not cause any type of pollution, in case it is permitted to become separational.
3. The High Court shall also examine the question of restitution of the areas damaged on account of the pollution already caused. The costs of the restitution shall be borne by M/s.Sakthi Sugars Ltd. Tanil Nadu, for which NEERI was requested to submit its report.
4. The High Court shall monitor the case till such time as is considered necessary by it.
8. The High Court may appoint an amicus curiae to assist a for disposal of the case and burden the industry with such costs as it may deem, fit.
9. The parties, through their learned counsel are directed to appear before the High Court on 6th August, 1998,NEERI shall also be requested to appear before the High Court on the same date to give its opinion on technical matters regarding the operational viability of the Industry.
10. In so for as the costs in this Court are concerned, learned amicus curiae, Mr. Harish Salve assisted by Mr.S.Muralidhar submit that the costs may be paid to the Supreme Court Legal Services Committee. We appreciate, the gesture shown by the learned counsel. We also wish to place on record our appreciation for the assistance rendered by Mr.Harish Salve, Senior Advocate and Mr.S.Muralidhar in this Court.
11. The Industry M/s.Sakthi Sugars Ltd., Tamil Nadu shall pay a sum of Rs.20,000/- by way of costs, which shall be deposited in the account of the Supreme Court Legal Services Committee within one week.
12. The Registry shall transmit the complete record of the case to the High Court without any delay. The record may be sent by courier for which the expenses shall be borne by respondent No.6.
Earlier order in the matter:
Hon'ble Justice A.S. Anand, Hon'ble Justice B.N. Kirpal and Hon'ble Justice V.N. Khare.
Special Leave Petition (C) No. 22597 of 1997. D/d.
A.S. Anand, J. - An additional affidavit of Undertaking has been filed in Court today by Mr. P. Natarajan on behalf of the Industry, respondent No. 6.
2. We have heard learned counsel for respondent No. 6, the learned Amicus Curiae as also the learned counsel appearing for Tamil Nadu Pollution Control Board.
3. From a perusal of the affidavit filed by the Member Secretary, Tamil Nadu Pollution Control Board on 12.1.1998, it transpires that certain directions were issued by the Board in exercise of the powers conferred under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974, as amended in 1988 to respondent No. 6. These directions were inter alia aimed at ensuring proper storage of effluent in lagoons and for proper treatment and disposal of the treated effluent. As many as 11 directions, as detailed in the affidavit, were given. Para 5 of the said affidavit discloses that the Industry (respondent No. 6) has not complied with direction Nos. 6, 7, 8 and 9. It is also stated that during the inspection of the Industry on 23rd of November, 1997, it was noticed that the seepage of effluent from lagoon `C' joined the drain and ultimately reached river Bhavani thereby contravening the conditions imposed in the directions by the Board. The affidavit goes on to say that show cause notice was also issued by the Board to the Industry calling upon it to state why penal action for offences punishable under Section 44 read with Section 45(a) of the Act should not be initiated for violating the conditions imposed by the Board.
4. Respondent No. 6 in its affidavit filed on 27th of January, 1998 has not denied that 11 directions had been issued to it by the Board and that some of those directions have not been complied with. It is stated in para (d) as follows :
"In respect of the direction of the Tamil Nadu Pollution Control Board at Para (viii) that the Company shall give progress report on disposal of accumulated effluent in lagoons every fortnight and also fortnightly progress report on the actions taken to comply with the conditions stipulated in the Consent Order issued by the Tamil Nadu Pollution Control Board, it is submitted that the Company has furnished daily statements giving complete particulars of the effluent generated, effluent utilised for composting and for concentration, inflow into lagoons, outflow from the lagoons and other detailed particulars. The receipt of these daily statements by the Tamil Nadu Pollution Control Board is acknowledged in their Affidavit filed before this Honourable Court. Apart from the daily statements, the Company has also furnished consolidated and fortnightly reports to the Joint Chief Environmental Engineer of the Tamil Nadu Pollution Control Board."
5. In the affidavit of Undertaking filed on behalf of respondent No. 6 today it is stated that since 16th of January, 1998, the production capacity of the Industry has been reduced and ferti-irrigation has been completely stopped. It is also stated that the entire effluent is being utilised within the premises for bio-composting and that there is no discharge of water or effluent on land or in the water.
6. With regard to the two unlined lagoons, it is stated in para 7(a) of the affidavit of undertaking filed today that effluent has been stored in the two unlined lagoons and it is reiterated that no further discharge of effluent is being made into the unlined lagoons.
7. As already noticed, according to the Board, the seepage from the unlined lagoons in which effluent has been stored joins the drain and ultimately reaches river Bhivani thereby polluting the river water. This is a serious matter and shows that pollution is continuing because of actions of respondent No. 6 and remedial steps have not been taken to prevent pollution and contamination of the river water. Respondent No. 6, has obviously failed to arrest the unabated pollution, which has become a health hazard and environmental enemy. Enough time has been given to the Industry (respondent No. 6) to take the remedial steps, it has failed to do so. We are, therefore, left with no other option but to direct the closure of the operation of the Industry (Respondent No. 6) on or before 2nd February, 1998 and we direct accordingly. The Tamil Nadu Pollution Control Board shall submit a report regarding compliance of this direction by the Industry within ten days.
8. We clarify that the direction herein above given by us to close the Industry (respondent No. 6) will not come in the way of the Industry to empty the two unlined lagoons, otherwise than through ferti-irrigation or discharge on land or in river, or to do compost work.
9. From the affidavit of Undertaking of respondent No. 6 filed today, we also find on admission that there are eleven small intermediary transit tanks used for transferring the effluent from the concentration plant to the lagoons, which are also unlined at the bottom. Respondent No. 6 shall not put to use those transit tanks unless the lining is complete in all respects.
10. After the effluent from the two unlined lagoons have been removed and those lagoons lined and the eleven small intermediary transit tanks are also lined it shall be open to the Industry (respondent No. 6) to approach the Court for appropriate orders regarding restarting the operations of the Industry.
11. In the meantime we also consider it appropriate to direct inspection of the Industry and the site adjoining it. We request NEERI to conduct an inspection the Industry and to submit a report to this Court disclosing whether the pollution control devices have been fixed by the Industry and proper steps taken to control pollution in accordance with the provisions of the Act or not. NEERI shall also inspect the surrounding area with a view to assess damage, if any caused due to discharge of effluent by the Industry and to indicate the cost of restitution. NEERI shall submit its report to this Court within six weeks. The directions with regard to payment of NEERI shall be made on receipt of the bill from NEERI. The directions be conveyed to NEERI together with the necessary details forthwith.
List the special leave petition after seven weeks.