ORDER J.B. Koshy, J.

1. This Original Petition is filed for the issuance of a writ of mandamus or other appropriate direction commanding the respondents to close down the fifth respondent cashew processing factory as according to the petitioner it creates pollution. According to the petitioner he is a very old aged, Chronic Astma patient and he is living within 200 meters of the factory. It is also contended that no licence as contemplated under the Kerala Panchayat (Licensing of Dangerous and Offensive Trades and Factories) Rules 1963 was obtained before starting the factory as can be seen from Ext. P. 2. Rule 3 of the Rules enjoins power of the Government to specify in schedule I of these rules the purpose and in their opinion are likely to be offensive or dangerous to- human life or health or property. Item 16 in the schedule reads:

"16. Cashew nuts : Storing, Packing, Preparing or Manufacturing by any process whatever."

Rule 12 deals with the application to be made for construction, establishment or installation of factory workshop or work place in which steam or other power is to be employed. Sub-rule 12 (1) deals as to how the application is to be made. Sub-rule 2 deals with the matters to be produced along with the application and Sub-rule (3) states that within 60 days of the receipt of such application the Panchayat shall either grant or refuse the same and Sub-rule (4) deals with the matters to be considered in the event of the licence is to be granted. If those parameters are looked into, licence could not have been granted even if applied for.

2. It was submitted by the petitioner that the black smoke omitted from the factory increases his astma and it affects the health of all the people in the locality. It is also stated that the entire area is covered by thick black smoke and the pungent smell of cashew make it impossible for any resident in the locality to venture out of the confines of their house. The toxic effect of the smoke emitted from the chimney is highly injurious to human health. The petitioner through out the day keeps his doors and shutters closed not only due to the acrid smell but also to avoid soot depositing in the rooms.

3. According to the petitioner, in spite of his repeated representations no action is taken by respondents 1 to 4. The factory continues to operate violating the provisions of Environment Protection Act 1986. In view of their inaction it was prayed that this Court should issue a writ of mandamus directing the authorities to do their statutory duties to direct the respondents to conduct detailed inspection and investigation and to close down the factory if the functioning of the factory causes pollution of the atmosphere violating the statutory provisions.

4. No counter affidavit is filed by the first respondent to the allegations made in the original petition. This Court directed the fourth respondent to carry out an inspection to verify whether the allegations are correct.

5. In Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715 which is known as Tanneries case it was observed by the Supreme Court as follows : (Para 13) "In view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country."

The Supreme Court further observed that : (Para 15) "The Constitutional and statutory provisions protect a persons right to fresh air, clean water and pollution free environment, but the source of the right is the inalienable common law right of clean environment."

In paragraph 16 Supreme Court observed as follows:

"Our legal system having been founded on the British Common Law the right of a person to pollution free environment is a part of the basic jurisprudence of the land."

6. In Oleum Gas Leak case (M. C. Mehta v. Union of India, (1987) 1 SCC 395 : (AIR 1987 SC 1086)) the Apex Court observed as follows (AIR at page 1099, para 31 of AIR);

"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 reasonable care and that the harm occurred without any negligence on its part."

This decision was relied on in Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212 ; (AIR 1996 SC 1446).

7. In Madhavi v. Thilakan, (1988) 2 Ker LT 730: (1989 Cri LJ 499) this Court referred to Articles 47, 5IA(g) and 21 of the Constitution and held that;

"To say that a workshop or factory should not be closed down, as it providts livelihood to some persons, unmindful of the consequences to others, would be to say the untenable. Constitutionally recognised values, cannot be ignored."

In Jacob v. Superintendent of Police, ILR (1993) 1 Kerala 248 : (AIR 1993 Kerala 1) it was held that:

".......compulsory exposure of unwilling persons to dangerous and disasterous levels of noise, would amount to a clear infringement of their constitutional guarantee of right to life under Article 21. Right to life, comprehends right to a safe environment including safe air quality, safe from noise."

8. The Supreme Court in Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109 considered how the court should act when there is a problem of ecology, and held as follows : (Para 4) "Whenever a problem, of ecology is brought before the Court, the Court is bound to bear in mind Article 48 A of the Constitution, the Directive Principle which enjoins that "The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country" and Article 51 A (g) which proclaims it to be the fundamental duty of every citizen of India "to protect and improve the natural environment including forests, lakes rivers and wild, life, and to have compassion for living creates". When the Court is called upon to give effect to the Directive Principle and the Fundamental duty, the Court is not to shrug its shoulders and say that priorities are a matter of policy and so it is a matter for the policy-making authority."

9. A reading of various authoritative text books on Air Pollution shows that the air we breathe, is a mixture of nitrogen and oxygen with minor constituents like carbon dioxide and trap gases. Pollutants are substances which are not normally present in the air e.g. dust, smoke industrial and automobile exhaust, gaseous and particulate matter. Nature and amount of these pollutants vary from place to place depending upon population, vehicular density, location of industrial units etc. Lungs are the major organs affected by the air pollution because of the direct contact of the respiratory track with outside atmosphere. The spectrum of functional and pathological reactions of the lungs to various exposures is wide. Chronic bronchitis and airways obstruction is the result of long term exposure to air pollution. Exposure to many of the occupational and environmental pollutants can precipitate and/or aggravate asthma. Organic matter duets can also cause other allergic reactions producing allergic alveolitis. Inorganic dusts may get deposited in the lungs and produce fibrosis. This produces respiratory disability and decreased work efficiency.

10. The Pollution Control Board filed a report as early as on 11-6-1993 before this Court. It was reported as follows;

"The company has not obtained cite clearance from the Board for establishing the unit. During inspection of the factory on 26-3-1993 it is seen that effluent is generated from roasting and cooling process and the same is let out into an earthern pit inside the factory premises. Directions were given to the factory authorities per the office letter dated 2-4-1993 to apply and obtain consent of the Board as per Water (Prevention & Control of Pollution) Act."

It further reported that:

"During inspection it is observed that at times the emission from the chimneys are carried away by the wind and it is spreading in the surrounding area and was causing nuisance to the public. About 8 houses and 6 wells are located within 100 meters radius from the factory building."

The following specific directions were mentioned in the above report:

"1. To increase the diameter and height of circular Chimney in the baking section to drive away the emissions.

2. Planting trees and other plants of different species at the periphery of the factory building, especially at the eastern side.

.3. Dispose the solid waste and keep the surrounds clean."

Eventhough the above report was given in 1993 so far it is not implemented. When the case came up today in the petition list learned advocate appearing for the 5th respondent submitted that original petition itself may be disposed of as they will comply with the directions within six months.

11. In this case eventhough fourth respondent filed its report in 1993, directions contained in it was not carried out by the fifth respondent even more than three years have passed. It has not even applied for consent under the Water (Prevention & Control of Pollution) Act, 1974 eventhough fourth respondent has by Annexure A letter dated 2-4-1993 directed the fifth respondent to do so, A clear disobediance of the directions is seen from the conduct of the fifth respondent. It is also a sad fact that fifth respondent has not made any follow up after the report. No action is also reported to be done as taken by the first respondent under the provisions of the Kerala Panchayat (Licensing of Dangerous and Offensive Trades and Factories) Rules, 1963.

12. Considering the facts and circumstances of the case, I am of the opinion that respondents 1 to 4 should see that fifth respondent shall not run the factory unless the directions contained in the report submitted by the fourth respondent are carried out. Now Kerala State is declared as an air pollution control area. So, fifth respondent has to get consent as per the Air (Prevention and Control) Act, 1981 also. Immediately after complying with the directions mentioned in the report submitted by the Pollution Control Board and after getting. necessary consent from the Pollution Control Board fifth respondent can restart the factory. In other words operation of the fifth respondent factory can continue only after complying with the directions of the fourth respondent as contained in the report filed before this Court as early on 21-6-1993. Respondents 1 to 4 should ensure that fifth respondent should carry out the relevant provisions of the statutes mentioned earlier.

With the above observations the Original Petition is disposed of.