JUDGMENT Jawahar Lal Gupta, J.

1. The petitioners complain that the discharge of effluents and the emission of pollutants from the factory run by the National Fertilizers Ltd. (Respondent No. 2) has caused damage to their agricultural land and residential houses. They pray that the said respondent be directed to "lose the Plant" till adequate arrangements for the disposal of pollutants and effluents are made and "to pay the damages of Rs. one crore for the destruction of residential houses crops and mango garden." It has been further prayed that Respondent No. 2 may also be directed to reclaim the agricultural land of the petitioners which has been rendered unfit for cultivation." A few facts may be noticed.

2. Petitioner Nos. 1 to 5 have a farm, a house tubewell and agricultural land measuring about 30 acres in village Gaddiwara. Petitioner Nos. 6 to 39 state that they "are very poor people and have constructed residential houses" in Raj Nagar, village Gaddiwara which is within the Municipal Limits of Panipat. Respondent No. 2 set up a plant in Panipat for manufacture of 'Urea.' According to the petitioners, the effluent containing various chemicals and ash was originally released into a pond. The water was absorbed by the earth and the ash got deposited thereon. Instead of making arrangement for the disposal of ash. Respondent No. 2 started" raising the height of Kacha Bundh....."On account of excessive pressure of the effluents and accumulation of ash, the bundh collapsed on December 1. 1984. As a result, the crops on the entire land including the Mango Garden, were repeatedly flooded. Even the fish, which had been kept in a pond by petitioner Nos. 1 to 5 died. The crops were badly damaged. Petitioner No. 1 filed a Civil Suit No. 1128 of 1985 in the Court as Sub Judge 1st Class Panipat. The petitioners ha to spend a huge amount of money for removal of ash at their own expense. There were successive breaches in June 1986, March 1987. July 1987, July 1988, November 1990 and August 1991. Extensive damage was caused to the property of the petitioners. Since the efforts to persuade Respondent No. 2 to take suitable remedial measures had borne no fruit, petitioner Nos. 1 to 5 filed a suit for Permanent Injunction in the Court of Senior Sub Judge, Panipat on December 5, 1990. The petitioners filed an application for appointment of a Local Commissioner. A copy of the report submitted by the Local Commissioner has been produced on record as Annexure P-4. According to the report, the petitioners' land had been rendered unfit for cultivation. Even the residential houses were affected and the petitioners had to vacate the residential houses and the farm house. The petitioners then approached the Central Soil and Material Research Station, Hauz Khas, New Delhi for testing the soil. Their request was declined on the ground that the test could be conducted "only at the direction of the Central Government." Petitioner No. 1 then approached the Shri Ram Institute for Industrial Research for having the effluents tested. However, it was disclosed to the petitioner that the National Fertilizers, Panipat had also engaged the Institute. As such, it gave up its efforts to have the effluents tested through the Shri Ram Institute. Thereafter, the petitioners approached the Indian Agricultural Research Institute and got the soil tested. This institute reported that the land shall have to be reclaimed before it could be fit for cultivation. Since the quality of land had already suffered and the efforts to save the environment from pollution had been defeated, petitioner Nos. 1 to 5 withdraw the suit for permanent injunction. They, however, complained to the officers of Respondent No. 2 as well as to various other authorities including the Prime Minister of India. In the meantime respondent No. 2 made a drain for discharging the effluents in village Dahar. However, the sludge of burnt ash blocked the drain. In the process the agricultural land of the petitioners has beet rendered uncultivable. The petitioners aver that the process of manufacturing fertilizer involves hazardous processes and the wastes contain a variety of substance and chemicals. Accordingly, the petitioners submit that the plant installed by Respondent No. 2 deserves to be closed as it is a threat to the environment, causes damages to the properties of the petitioners and is dangerous for the life of the inhabitants. The petitioners have produced various documents including photographs to support their claim.

3. Respondent No. 2 has filed a reply. It has averred that the civil suit filed by the petitioners on December 5, 1990 having been dismissed as withdrawn on November 8, 1991, the present writ petition is not competent. It has been further averred that the case involves various disputed questions of fact which cannot be determined in a petition under Article 226 of the Constitution. According to the respondent, the ash slurry discharged from the plant is not poisonous. It is pure canal water mixed with ash which settles down in the high level ponds and only the superabundant water overflow through the pipes embedded in the bundh and flows to the out-fall drain provided. The water stored in the reservoir is very productive and useful for the growth of plant and crops and also in raising the fertility of the land. Keeping this in view, the neighbouring land-owners are using this reservoir water for irrigating their fields . The employees of the petitioners have been unauthorisedly tapping the water of these ponds by making small breaches in the reservoir which they subsequently forget to plug and as a result there have (has) been more flow of water than necessary. Some times they try to steal the C. I pipes fitted in the ash bundh for flowing the water in the outfall of the drain and in this way also the embankment of the bundh breaches. The reservoir which adjoins the land of various persons including the petitioner is maintained by the regular staff and its banks are about 15 'wide on the top and its bottom is more than 50' wide... The answering respondents are spending more than 2 lacs of rupees annually for the maintenance of the reservoir. . . . The answering respondents have already constructed two reservoir village Dahar, about 7 Km. from the plant which are in the process of completion and are expected to start functioning, the answering respondents will use the present reservoirs only in emergency. . " The respondent states that it has planted more than one lac trees to maintain the ecological balance. A bird sanctuary has also been developed in the vicinity of the factory. A mini Deer Park has been developed in the township. According to the respondent, the plant conforms to the latest national standards as laid down by the Central Pollution Control Board. It has also been pointed out that for the treatment of liquid effluents, one of the most sophisticated treatment systems is being adopted. This process is based on Physico-Chemical removal of Ammonia followed by biological degradation of Urea and Residual Ammonia through Nitrification and Denitrification Process. Details of the process have been given to show that the respondent is making all possible efforts to ensure that it is causing no pollution. Various other averments made by the petitioners have been controverted.

4. A separate written statement has also been filed on behalf of the pollution Control Board, Respondent No. It has been inter-alia averred that the said respondent has been wrongly impleaded as a party and that the writ petition deserves to be dismissed.

5. The petitioner have filed a replication and reiterated the claim made in the petition.

6. CM. Application No. 1895 of 1994 was filed by the petitioners. Alongwith this application, a copy of the judgment delivered by Mr. Lakshman Sharma, Senior Subordinate Judge, Panipat, in the suit for recovery of damages filed by the petitioner has been produced. A perusal of this judgment shows that the suit was dismissed and the Court had found that "the plaintiff has failed to prove that he has suffered a loss of Rs. 70,000/- due to negligence on the part of the employees of the defendant Factory." In the reply to this application filed on behalf of Respondent No. 2, It has been inter-alia averred that "an Award of Honour has been conferred in 1994 upon the unit by the National Safety Council, Chicago for attaining largest accident free period from 14th November, 1992 to 18th February, 1994 for working more than a million man hours without any recordable accident. " Reference has also been made to various other National and International Awards given to the Organisation.

7. Another Misc. Application No. 9543 of 1994 was filed by Respondent No. 2, in which the position regarding the action taken on the deficiencies pointed out in the report of the team of the Experts on Air and Water Static Monitoring was given. It has been pointed out that the ponds, which were originally being used for discharge of slurry, are not being used any more, though they have the capacity for accommodating the ash slurry in an emergency. It has been further pointed out that the capacity of the Electric Static Precipitation has been increased by providing two new ESPs in each boiler and the ash retaining capacity has been increased from 98.5% to 99.5% various other remedial measures adopted by the respondent have also been mentioned. The facts in this affidavit have not been controverted by the petitioners.

8. Mr. Joginder Singh Malik, learned counsel for the petitioners, has contended that the Second respondent cannot use the land of the petitioners for discharging the effluents. It should make proper arrangements for lifting the ash and clearing the ash slurry so that the environment is not polluted and the land of the petitioners does not suffer any further damage. It has been further contended that the petitioners deserve to be compensated for the loss they have already suffered. On behalf of respondent No. 2, it has been contended by Mr. Ashok Aggarwal that the petitioners cannot claim damages in writ proceedings. In any case, the suit for the damages filed by petitioner No. 1 having been dismissed by the Civil Court, no case for interference by this Court under Article 226 of the Constitution of India is made out. It has been further contended that the Pollution Board has been continuously monitoring the functioning of the plant and it is only on finding that the prescribed standards have been met with that the 'Consent' was given by the Board. Mr. Rameshwar Malik has placed a copy of the observation report recorded by the Board on April 29, 1994 to show that the prescribed parameters have been observed. A copy of this report was furnished to the learned counsel for the petitioners and has been taken on record as 'Mark A' Consequently, the counsel for the respondents submit that the writ petition should be dismissed.

9. Industrialisation and urbanisation have led to pollution of the Air that we breathe, the water that we drink and the environment that we live in. Remedial measures had thus become inevitable. Consequently, the legislature had intervened. It enacted the Water (Prevention and Control of Pollution) Act, 1974. It provided for" the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water..." Seven years later, the parliament enacted the Air (Prevention and Control of Pollution) Act, 1981/to provide for "the prevention, control and abetment of Air Pollution..." Five years later, the Environment Protection Act, 1986 was enacted to "provide for the protection and improvement of Environment and for matters connected therewith." While these legislation recognise the necessity of maintaining the purity of water, air and environment and provide adequate machinery to ensure maintenance of prescribed standards, a totally pollution free world still remains a tall order. So long as we inhabit this world, some violence against nature is inevitable. To a degree, each living being adds to the pollution. So do the cars and other innumerable vehicles. In the modern world 'industry' is an essential part of our existence. A totally pollution free world is an ideal. It is, however, difficult to achieve. This reality needs to be recognised.

10. While the right to enjoyment of pollution free water, air and environment has been recognised as an important ingredient of Right to life as guaranteed under Article 21 of the Constitution, the violation of the right is remediable by resort to appropriate proceedings under the law including by way of a petition under Article 226 of the Constitution. However, the efficacy of the chosen remedy has to be examined in the light of the facts of each case. What is the position in this case.

11. The petitioner complained that on account of the excessive pressure of effluents, the bundh built by the respondent had been repeatedly breached. As a result, their agricultural land was rendered uncultivable and their houses were damaged. The second respondent disputes this and points out that the water stored in the reservoir being productive and useful for the growth of plants, the petitioners and other land-owners have caused the breaches with the purpose of irrigating their fields or to steal the pipes. Furthermore, the parties are at variance with regard to damage to the property as also the adequacy of the remedial measures adopted. These disputes on facts cannot be resolved on the basis of pleadings alone and without recording evidence. In such a situation, Writ proceedings are not a proper remedy. Decision on disputed facts can be properly given by the Civil Court only. The difficulty is still greater in the matter of assessment of damages. It, therefore, appears essential to relegate the petitioners to their remedy before the civil Court.

12. Mr. Malik has referred to the decisions of their Lordships of the Supreme Court in Bandhua Mukti Morcha v. Union of India and Ors., AIR 1984 S. C. 802 Olga Tellis and Ors. v. Bombay Municipal Corporation, AIR 1986 S. C. . 180, M. C. Mehta and Anr. v. Union of India and Ors., AIR 1987 S. C. 965 and Vikram Deo Singh Tomar v. Stale of Bihar, AIR 1988 S. C. 1782 to contend that the damages can be awarded in a petition under Article 226 of the Constitution. These cases are clearly distinguishable on facts. The principles enunciated by their lordships in the matter of Public interest litigation, bonded labour, removal of encroachments, maintenance of 'Care Homes' and measures to be taken for reducing hazards to workmen and community living in neighbourhood of industrial Units are not applicable to the facts and circumstances of the present case. In fact, in the case of M. C. Mehta (Supra), their Lordships were inter-alia pleased to observe as under :-

"When science and technology are increasingly employed in producing goods and services calculated to improve the quality of life, there is a certain element of hazard or risk inherent in the very use of science and technology and it is not possible to totally eliminate such hazard or risk altogether. It is not possible to adopt a policy of not having any chemical or other hazardous industries merely because they pose hazard or risk to the community. If such a policy were adopted, it would mean the end of all progress and development. Such industries, even if hazardous have to be set up since they are essential for economic development and advancement of well - being of the people."

13. In view of the above observations, it is clear that even a hazardous industry cannot be totally closed. Only remedial safeguards can be insisted upon. The petitioners can derive no advantage from the above decisions.

14. Mr. Malik also relied on the observations of their Lordships of the Supreme Court in Smt. Nilabati Behera alias Lalita Behera v. State of Orrisa and Ors., AIR 1993 S. C. 1960, in support of his submission that this court can award damages. In the above mentioned case, their Lordships were undoubtedly pleased to award damages. However, one cannot lose sight of the fact as was observed by their Lordships also, that under Article 142 of the Constitution the Supreme Court has the jurisdiction to pass "such order as is necessary for doing complete justice in any cause or matter..." However, in the circumstances of this case, when there is a serious dispute on facts, it is not possible to assess and award damages to the petitioners.

15. It also cannot be ignored that the Haryana State Pollution Control Board vide its report dated April 6, 1994 a copy of which has been taken on record as "mark A', has found the pollution control devices employed by the second respondent to be adequate and operating satisfactorily. It had recommended the grant of consent for the year 1994-95. As a result, the consent was granted by the Board on May, 15, 1994. Furthermore, the suit filed by Petitioner No. 1 for recovering a sum of Rs. 70,000/- by way of damages was dismissed by the Civil Court vide the judgment dated July, 30, 1993. Still further the petitioners have produced a copy of the analysis report submitted by the Senior Scientist, Division of Soil Science and Agricultural Chemistry, IARI New Delhi on February 24, 1993. It was found that the field had been affected by the invasion of Fly ash. Acidity had developed in certain area which could be managed by liming material. However, the total nitrogen, phosphorus, sodium and electrical conductivity values did not show any adverse effect. It is undoubtedly correct that the petitioners claim to have suffered heavy loses. However, in view of this evidence, which has been brought on the record by the petitioners themselves by filing C. M. Application No. 1895 of 1994, it cannot be said that a clear case for intervention of this Court under Article 226 has been made out.

16. Accordingly, it is held that in the circumstances of this case, the dispute between the parties cannot be resolved through proceedings under Article 226 of the Constitution. They may, if so advised, resort to such remedy as may be available under the law. In the circumstances of the case, there will be no order as to costs.