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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 11TH DAY OF OCTOBER 2017/19TH ASWINA, 1939
WA.No. 2884 of 2009 ( )
------------------------
AGAINST THE ORDER/JUDGMENT IN WP(C) 15311/2009 of HIGH COURT OF
KERALA DATED 20-10-2009
APPELLANT(S)/PETITIONER:
-----------------------
M/S.INDIAN RARE EARTHS LIMITED
RARE EARTHS DIVISION, UDYOGAMANDAL-683501,, REPRESENTED
BY ITS CHIEF GENERAL MANAGER.
BY ADVS.SRI.E.K.NANDAKUMAR
SRI.P.BENNY THOMAS
SRI.K.JOHN MATHAI
SRI.BENNY P. THOMAS
RESPONDENT(S)/RESPONDENTS:
--------------------------
1. STATE OF KERALA
CHIEF SECRETARY TO GOVERNMENT, GOVT.SECRETARIAT,,
THIRUVANANTHAPURAM-695 001.
2. THE KERALA STATE POLLUTION CONTROL
BOARD, PATTOM P.O., THIRUVANANTHAPURAM-695004.
3. PURUSHAN, AGED 43 YEARS, S/O.VELAYUDHAN,
'SANKHYAPURI', (VYLOKUZHI), ELOOR NORTH,
UDYOGAMANDAL P.O.
R,R BY ADV. GOVERNMENT PLEADER SMT POOJA RAVINDRAN
R,R2 BY ADV. SRI.M.K.CHANDRA MOHANDAS,SC,POLL.C.BOAR
R3 BY ADV. ADV.DAISY A.PHILPOSE
R2 BY ADV. SRI. T.NAVEEN SC,
KERALA STATE POLLUTION CONTROL BOARD,
R BY SRI.DAISY A.PHILIPOSE
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11-10-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
kkj
WA.No. 2884 of 2009 ( )
-2-
APPELLANT'S EXHIBITS
ANNEXURE A: TRUE COPY OF THE LETTER SENT BY THE APPELLANT TO THE
ELOOR GRAMA PANCHAYAT DATED 18.07.2016
ANNEXURE B: TRUE COPY OF THE LETTER FROM THE 2ND RESPONDENT BOARD
DEMANDING MONTHLY PAYMENT DATED 30.06.2009
ANNEXURE C: TRUE COPY OF THE LETTER OF PROTEST FROM THE APPELLANT TO
THE 2ND RESPONDENT BOARD DATED 29.06.2009 WITH TRUE TRANSLATION
ANNEXURE D: TRUE COPY OF THE REPLY FROM THE 2ND RESPONDENT BOARD
DATED 22.07.2009
ANNEXURE E: TRUE COPY OF THE INVOICE DATED 05.11.2009 FROM FACT
RESPONDENT'S EXHIBITS
ANNEXURES PRODUCED ALONG WITH I.A.NO.180/2010
ANNEXURE R3[A]: A TRUE COPY OF THE MINUTES OF THE MEETING HELD ON
17.10.2005
ANNEXURE R3[B]: A TRUE COPY OF THE MINUTES OF THE MEETING HELD ON
28.10.2005
ANNEXURE R3[C]: A TRUE COPY OF THE MINUTES OF THE MEETING HELD ON
13.12.2005
ANNEXURE R3[D]: A TRUE COPY OF THE REVELANT EXTRACT OF THE REPORT
SUBMITTED BY LOCAL AREA ENVIRONMENT COMMITTEE TO
THE SUPREME COURT MONITORING COMMITTEE
ANNEXURE R3[E]: A TRUE COPY OF THE RELEVANT EXTRACT OF THE REPORT
PUBLISHED BY THE GREENPEACE
ANNEXURE R3[F]: A TRUE COPY OF THE REPORT SUBMITTED BY THE GERMAN
TECHNICAL CORPORATION
ANNEXURE R3[G]: A TRUE COPY OF THE REVEVANT EXTRACT OF THE HEALTH
SURVEY REPORT
ANNEXURE R3[H]: A TRUE COPY OF THE ORDER IN DATED 09.05.2005
IN WP(C) NO.657/95
ANNEXURES PRODUCED ALONG WITH I.A.NO.740/2017
ANNEXURE R3[A]: A TRUE COPY OF THE REPORT PUBLISHED BY GREEN PEACE
INDIA
ANNEXURE R3[B]: A TRUE COPY OF THE MINUTES OF THE MEETING HELD ON
17.10.2005
ANNEXURE R3[C]: A TRUE COPY OF THE RELEVANT EXTRACT OF THE HEALTH
SURVEY REPORT IN ELOOR INDUSTRIAL AREA
WA.No. 2884 of 2009 ( )
-3-
ANNEXURE R2A: TRUE COPY OF THE CONSENT FILED BY THE 2ND
RESPONDENT
ANNEXURE R1A: TRUE COPY OF THE ORDER NO.PCB/HO/EKM/ICO/104/2010
DATED 22.01.2010
//TRUE COPY //
PA TO JUDGE
C.R.
K. SURENDRA MOHAN & MARY JOSEPH, JJ.
- -W.A.-No.- -2884-of- -2009- -
- - - - - - -
Dated-this the 11th day of October, 2017
- - - - - - - - - - - - - - - -
JUDGMENT
Surendra Mohan, J.
The petitioner in W.P.(C) No. 15311 of 2009 is in appeal challenging the judgment dated 20.10.2009 of the learned Single Judge dismissing the writ petition.
2. The appellant is a Government of India undertaking and a unit of the Indian Rare Earths Limited engaged in activities like beach sand mining, mineral separation and processing. The Company has an industrial unit at Udyogamandal. It is engaged in the extraction of Uranium from Thorium concentrate. It has been functioning for the past five decades. The activities of the appellant unit are regulated by the Atomic Energy Act, 1962 ( 'Atomic Energy Act' for short). The industrial wastes generated in the factory W.A.2884/2009.
2are radioactive wastes coming within the purview of the Atomic Energy Act. Therefore, it is contended that, the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008 (hereinafter referred to as 'HW Rules') do not govern the manner of disposal of such wastes. For disposal of the wastes generated by the unit of the appellant, they have the necessary authorization from the Atomic Energy Regulatory Board. For the purpose, they have established disposal sites within their premises in terms of the licence and plan approved by the Atomic Energy Regulatory Board.
3. While so, as per an order passed by the Supreme Court in W.P.(C) No.657 of 1995, a Committee called the Supreme Court Monitoring Committee on Hazardous Wastes ('Monitoring Committee' for short) was constituted for the purpose of ensuring that the directions issued by the Supreme Court from time to time in the said writ petition were implemented effectively and in a timely manner. The W.A.2884/2009.
3Monitoring Committee was given the liberty to co-opt a representative of the State Government or the State Pollution Control Board or any other person or authority as member of the said Committee, as deemed fit. The Monitoring Committee was to file quarterly reports before the Apex Court. The order appointing the Monitoring Committee is evidenced in these proceedings by Ext.P2.
4. Pursuant to Ext.P2 order, the Monitoring Committee conducted a number of visits to the State of Kerala, inspected various localities and submitted reports to the Court, as evidenced by Exts. P3, P4 and P5. The Monitoring Committee assessed the situation in Eloor, Udyogamandal and surrounding areas where large number of industries are located and assessed the gravity of the pollution that the residents were put to suffer. The Monitoring Committee noted the disastrous condition of the Periyar River which is the life line of Kerala. It was found that the river had been converted W.A.2884/2009.
4into a vast Treatment Storage and Disposal Facility (TSDF). The Committee also found that the pollution was caused to a great extent by the activities of Government owned companies as well. The Regulatory Agencies like Kerala State Pollution Control Board and State officials were found to be adopting a willful and callous disregard to the directions of the Supreme Court. Therefore, the Monitoring Committee issued directions in Ext.P3 with the object of remedying the situation.
5. As part of implementation of the said directions, a Scheme to supply potable water to the residents of the industrial area was proposed to be implemented. The Fertilizers and Chemicals Travancore Limited (FACT) agreed to make available the required quantity of water for supply through pipelines. The cost for laying the pipelines was ordered to be shared by the industries in the area. Accordingly, the appellant paid an amount of Rs.35 Lakhs, recognizing its Corporate Social Responsibility (CSR). W.A.2884/2009.
5However, according to them, they were not polluting the Periyar River in any manner and were not liable to pay any recurring charges for the supply of drinking water. In view of the above stand taken by the appellant, the 2nd respondent Board, by a notice dated 27.4.2009 required them to show cause why the authorization issued to them under the HW Rules should not be amended by including a condition therein making it mandatory for the Company to remit 1/4th of the monthly recurring charges for the supply of drinking water. The copy of the said notice is Ext.P8. The appellant objected to the same by submitting Ext.P9. Thereafter, a personal hearing was conducted and by Ext.P10, they were directed to make the payments. Ext.P10 was followed by Ext. P11 pointing out that there were mistakes with respect to the recording of the minutes. Subsequently, a meeting with the Minister for Health, State of Kerala was held on 18.5.2009 which was attended by the representatives of the appellant. W.A.2884/2009.
6Thereafter, by Ext.P12 proceedings dated 29.5.2009 the appellant was directed to pay Rs.1.25 Lakhs per month as their share of the recurring charges for the Eloor Drinking Water Supply Scheme. It was challenging Ext.P12 that the appellant had filed the writ petition.
6. According to the appellant, the industrial wastes generated by it come within the general definition of radioactive wastes under the Atomic Energy Act. Such wastes have been specifically excluded from the purview of the HW Rules. The Monitoring Committee was constituted for the purpose of monitoring the discharge of wastes under the HW Rules. Therefore, the Monitoring Committee has no authority to initiate any action in relation to the wastes discharged by the appellant. The proceedings Ext.P12 were issued by the 2nd respondent in compliance with the order issued by the Monitoring Committee. Therefore, this is a clear case of the statutory authority, acting under dictation and without any W.A.2884/2009.
7application of mind. The Monitoring Committee had no power to issue the said direction to the 2nd respondent. The 2nd respondent has no power to compel the appellant to bear the costs of establishing the water supply system and the recurring charges for supply of water to the local residents. Therefore, they sought for the issue of appropriate orders, quashing Ext.P12.
7. The writ petition was contested by the respondents. A counter affidavit was filed by the 2nd respondent refuting the contentions of the writ petitioner and producing Exts.R2(a) to R2(n) documents in support of their contentions. According to the 2nd respondent, the Udyogamandal - Eloor area is an industrial belt with a large number of industrial units concentrated on the banks of river Periyar, engaged in multifarious industrial activities. The industries have been functioning for a number of years. They have been discharging their effluents into the river for the past W.A.2884/2009.
8many years. The acute pollution in the area as well as contamination of the river Periyar is the combined effect of the activities carried on by the various industrial units located there. Only an exhaustive scientific study conducted over a number of years would be able to pin-point the extent of pollution that could be attributed to each industrial unit. Further scientific data would be necessary to connect the source of each pollutant to a particular industrial unit. As held by the Apex Court, in the absence of such authentic scientific data, the 'polluter pays' principle would justify casting of the financial burden for averting the pollution, on all the industrial units located in the area. As part of the clean up operation of river Periyar, attempts are being made to reverse the effects of pollution by regulating the activities of the industrial units. The local residents of the locality have been deprived of their perennial source of drinking water by the acute pollution. It was therefore that a scheme for supply of clean drinking water W.A.2884/2009.
9to the residents was proposed to be implemented by the 2nd respondent with the co-operation of the Kerala Water Authority and the industrial units involved. The four major chemical industries which includes the appellant were requested to share the charges for laying the pipes carrying drinking water. The FACT had offered to supply drinking water at a highly subsidized rate. However, there was no means of meeting the recurring charges for such supply of water. It was the said recurring charges, that the industries located in each locality were ordered to share. Thus recurring charges for the supply of drinking water to Panchayat Wards that are affected by the existence of the four major industries were directed to be borne by the said industries including the appellant. Accordingly, the appellant has been paying the said amount, on a monthly basis. The Monitoring Committee has in its report, Ext.P5 found that, the contamination of Kuzhikandam Thodu and nearby areas was caused by effluents W.A.2884/2009.
10from the FACT, IRE (appellant), HIL and Merchem. Therefore, the cost of clean up would have to be recovered from them. The said finding has not been challenged by the appellant. It was as part of implementation of the directions of the Monitoring Committee to clean up the river that the impugned order Ext.P5 has also been issued. The contention that, the appellant does not discharge any effluents to Kuzhikandam Thodu was disputed. According to the 2nd respondent, the appellant discharges effluents to the Periyar River. Waste water from their Unit flows into the Kuzhikandam Thodu. Since the same is discharged into the midstream of Periyar as per the permission obtained by them years back, it is also not possible to monitor the discharge, it was contended. It was also contended that since the Monitoring Committee was appointed by the Supreme Court, only the said court could entertain a challenge against the action of the said Committee. W.A.2884/2009.
11
8. The 3rd respondent, a local resident and activist who got himself impleaded also contested the writ petition. According to him, the pollution in the area was insufferable. In view of the precautionary principle, the action of the 2nd respondent was absolutely within its powers and fully justified in the factual scenario obtaining in the locality. In view of the acute pollution that is being caused, it is necessary that the consent conditions with respect to the appellant's unit was modified to insist on more stringent standards. The total pollution of the river Periyar and its surrounding areas is attributable to the activities of the industries located there. In view of the present permission to discharge effluents into the midstream of the river, monitoring is difficult and for the said reason, the condition is required to be suitably altered. Therefore, it was contended that the writ petition was only to be dismissed.
W.A.2884/2009.
12
9. The learned Single Judge considered the respective contentions, took note of the deleterious effects of pollution in the locality, found that the prevailing scenario was attributable to the activities of the industries located there and held that, fastening of the liability to pay the recurring charges for supply of drinking water to the residents was justified. Therefore, according to the learned Single Judge, there was nothing unjust in mulcting the appellant and other industries with the liability for the recurring charges. Accordingly, the writ petition has been dismissed. It is the said judgment that is under challenge in this appeal.
10. According to the learned Senior Counsel Sri. E.K.Nandakumar and Adv. Paulose Abraham, who appear for the appellant, the judgment appealed against is unsustainable and liable to be set aside. The writ petition was filed challenging Ext.P12 issued by the 2nd respondent. It is contended that the 2nd respondent had no statutory power to W.A.2884/2009.
13issue Ext.P12. No authority has found that the appellant's industrial unit was a polluter. There is no finding in Ext.P12 regarding the violation of any order or condition imposed by the 2nd respondent. In the absence of any allegation of infraction of any order, direction or statutory provision, it is contended that, the appellant ought not to have been saddled with a liability to pay the recurring charges for supply of drinking water to the local residents. Referring to Ext.P12, it is pointed out that the said order has been passed on the basis of a direction issued by the Monitoring Committee. Therefore, this is a clear case of the statutory authority acting under dictation, it is contended. The initial demand for sharing the infrastructural cost was accepted by the appellant recognizing their Corporate Social Responsibility. However, by Ext.P12 the recurring costs for supply of drinking water has also been imposed on them. Though the charges were demanded initially only for a period of two years, the payments are W.A.2884/2009.
14continuing till date. According to the learned counsel, the appellants cannot be compelled to continue the payments indefinitely. The counsel also places reliance on decisions of the Apex Court to support his contentions.
11. Adv. T. Navin, who appears for the 2nd respondent, points out on the other hand that rehabilitation of the residents affected by the pollution has been directed by the Supreme Court in Ext.P2 order. The Monitoring Committee had visited the area in August, 2004. Water supply to the affected communities had been ordered by the Committee in Ext.P3. In Ext. P5 report also, the Monitoring Committee has directed recovery from the four industrial units including the appellant. According to the learned counsel, just because the radio active wastes generated by the Company are covered by the Atomic Energy Act, a conclusion that they are not discharging any other hazardous wastes does not follow. It also does not follow that their effluents do not contain W.A.2884/2009.
15hazardous substances. Reliance is placed on Annexure R2(a) consent, Clauses 3.2 and 3.3 in particular, to contend that their effluents contain hazardous wastes. Therefore, the counsel seeks dismissal of the appeal.
12. Adv. Daisy A. Philipose, who appears for the 3rd respondent, supports the contentions of the 2nd respondent. According to the counsel, the residents of the locality are leading a life full of misery because of the rampant pollution caused by the industries located in the area. Their lives have been rendered miserable by various ailments that plague them constantly. It is contended that, a vast majority of the population is afflicted with diseases like Bronchitis, Bronchial Asthma and Cancer. The incidence of Blood Cancer in the area has been on the rise over the past three decades. In the absence of authentic scientific study, it is not possible to pin- point the responsibility for the deleterious effects on any industry in particular. Their source of drinking water, the W.A.2884/2009.
16Periyar River, has been contaminated with hazardous chemicals and pollutants. The seepage of industrial wastes has contaminated the soil as well as the wells and the sources of ground water. The flora and fauna of the area are also adversely affected. In such a precarious situation, the project to supply clean drinking water to them is only a small welfare measure that the authorities have been persuaded to undertake. The pollution in the area is attributable to the combined activities of the industries located there. Therefore, it is contended that the appellant cannot shirk the responsibility for the pollution that is caused. The learned Single Judge has, for the above reasons, found the impugned action to be justified. There are no grounds to interfere with the same, according to the learned counsel.
13. We have also heard the Government Pleader, who appears for the first respondent. The first respondent has filed an affidavit in this appeal producing Ext. P1, the W.A.2884/2009.
17consent issued by the 2nd respondent to the appellant. According to the first respondent, the Government has not granted permission to any of the industries in the Eloor - Edayar industrial area, particularly to the appellant herein, to discharge effluents from their factories into the Periyar river. The industrial department has also not given any such permission. The power to regulate all matters relating to the discharge of solid, liquid and gaseous wastes as well as noise is vested in the 2nd respondent. The 2nd respondent has issued a consent, Annexure R2(a). According to the learned Government Pleader also, there are no grounds to interfere with the judgment appealed against.
14. Heard. The Monitoring Committee in this case was set up by the Supreme Court as per an order dated 14.10.2003 in W.P.(Civil) No. 657 of 1995, a copy of which is evidenced herein by Ext.P2. Paragraph 68 of the order reads as under:
W.A.2884/2009.
18
"68. We constitute a Monitoring Committee comprising of the aforesaid members as also Dr.Claude Alvares, NGO and Dr.D.B. Boratkar. This Committee shall oversee that the direction of this Court are implemented timely. It would also oversee that the aspects to which the Ministry has agreed are implemented in Letter and spirit and without any laxity or delay in the matter. It would be open to the Monitoring Committee to co-opt a representative of the State Government or State Pollution Control Board or any other person or authority as the Committee may deem fit and proper. The Monitoring Committee shall file Quarterly reports in this Court."
As per the above order, the Monitoring Committee was to submit quarterly reports to the Supreme Court. We are told that such reports are being submitted as directed. The Apex Court has in Ext.P2 taken note of the importance of implementing rehabilitation programmes and has also fixed the time frame for implementation of the rehabilitation plan as three months, in the Schedule attached thereto. It is therefore clear that, finalization and implementation of the rehabilitation plan was also part of the functions entrusted to the Monitoring W.A.2884/2009.
19Committee by the Apex Court. Ext.P3 is the report of the Monitoring Committee on its visit to Kerala on 14.8.2004. The Committee found that the authorities in Kerala had allowed several industrial units to operate without authorization and that hazardous wastes were being discharged into the environment callously, by most of the industries concerned. The Committee has noted with distress, the deplorable condition of the Periyar River, the lifeline of Kerala. According to the Monitoring Committee, the Periyar River has been converted into a vast, illegal Treatment, Storage and Disposal Facility (TSDF) for hazardous wastes that were being discharged into it by the industries located in the area. The Monitoring Committee has in Ext.P3 therefore issued directions for restoring the water quality of Periyar River by adopting the various measures that are set out in the report. With respect to the supply of drinking water to the affected community, the Committee has stated as under : W.A.2884/2009.
20
".... Relying upon the Supreme Court order dated 7 May 2004 that requires water to be supplied to communities affected by industrial wastes, the Committee directs the State of Kerala and the industrial units of Hindustan Coca Cola, Binani Zinc, Kerala Mines and Minerals and Kerala Newsprint to ensure that water supply through pipeline is delivered to the residences of all the affected communities in the vicinities of these units. The present arrangement delivering water in tankers or in a few public locations though public taps is unacceptable. The KPCB is directed to set up four committees under KPCB Regional Officers in these places to create a register of persons affected and to ensure that the above companies install a piped water supply to the residences of all the persons so affected. Action plan for compliance of this direction shall be submitted within two weeks. Action shall be completed within six months."
On the basis of the above direction, a Local Area Environment Committee (LAEC for short) was initially set up inter alia, for the purpose of conducting an environment audit, to visit each industrial unit and to ensure that the control measures were properly implemented, to ensure that a proper material W.A.2884/2009.
21balance was maintained by the various chemicals and wastes generated and other measures to monitor the activities of the industrial units. In the report of its second visit on October 13th and 14th, 2004, evidenced herein by Ext.P4, the Committee found that the LAEC had stopped functioning and therefore it was directed to be reconstituted. In Ext.P4 also, the Monitoring Committee has noticed that the Periyar River bed had been turned into an illegal hazardous waste dump by various industries in the area with the full knowledge and acquiescence of the 2nd respondent. Therefore, the LAEC was directed to function in addition to the controls exercised by the 2nd respondent. In Ext.P5 the Monitoring Committee has found that contamination of the Kuzhikandam Thodu and nearby areas because of hazardous wastes was required to be addressed. It is stated that since effluents from FACT, IRE (the appellant), HIL, Merchem, were involved, the cost of clean up has to be recovered from the said units. The Monitoring W.A.2884/2009.
22Committee therefore, listed the additional actions that were required to be taken pursuant to the discussions held at the meeting between the Committee, the 2nd respondent and the LAEC, Kochi. In II (c) of Ext.P5, direction regarding supply of drinking water to the local residents has been provided. The said clause is extracted below for convenience:
"c) Residents of ward Nos. 1, 2, 3, 4 and 17 are seriously affected by the dumping of hazardous wastes in the area and by contamination of the Thodu. Wells and water bodies are severally contaminated. The companies listed under para (a) above are required to provide piped water for the affected communities in line with earlier recommendations of this committee and to be complied with by December 31, 2005. LAEC Kochi to survey and provide the list of those affected and entitled to Kerala Board. The LAEC Kochi shall inform the SCMC with regard to compliance in this regard."
Therefore, the Monitoring Committee has found that the Companies identified by it including the appellant shall be made responsible for providing piped water to the affected W.A.2884/2009.
23communities. We further take note of the fact that by an order dated 9.5.2005, evidenced in these proceedings by Ext.R2(n), the Supreme Court has further directed as follows:
"Having heard learned counsel and perused the record, we direct that no Court or Authority shall take cognizance or entertain any challenge connected with the implementation of the order passed by this Court on 14th October, 2003."
15. It is clear from the above that, the Monitoring Committee was constituted by the Apex Court with the object of ensuring that there was proper implementation of the terms regulating the handling and disposal of hazardous wastes by industrial units. The Monitoring Committee was constituted with the object of ensuring an effective implementation, having found that the statutory regulatory bodies had not been effective in achieving the said object. The consequence, as noticed by Ext.P2 order, has been an escalation in pollution at various parts of the country. It was taking note of the said W.A.2884/2009.24
alarming situation that the Monitoring Committee was directed to submit quarterly reports to the Apex Court itself, with a direction that no authority in the country shall entertain a challenge against any action of the Monitoring Committee. The Monitoring Committee was therefore not a mere fact finding body constituted by the Apex Court for ascertaining the factual scenario with respect to pollution. On the contrary, it was intended to effectuate and implement the control measures with the object of controlling the menace of pollution, effectively. Rehabilitation of the affected populace was also an aspect that was covered by Ext.P2 as well as Ext.R2(n) orders. Therefore, the contention that the Monitoring Committee had exceeded its authority in directing the Pollution Control Board to implement the project of supplying drinking water to the affected people, cannot be accepted. In view of Ext.R2(n) order of the Supreme Court extracted above, we are also not in a position to entertain the challenge against W.A.2884/2009.
25the action of the Monitoring Committee alleging that it had exceeded its authority. Such a complaint ought to be made before the Apex Court itself.
16. It is vehemently contended that, though no authority has found the appellant to be a polluter, they are being penalized. It is also contended that, there is absolutely no evidence of violation of any statute, order or any condition by them. In view of the above, there is absolutely no justification for penalising them with the liability to bear the recurring costs for providing drinking water to the residents. The above contention also has to fail for the reason that it is in such a situation, that the precautionary principle is applicable. The above principle has found acceptance with the Apex Court in Vellore Citizens' Welfare Forum v. Union of India ((1996) 5 SCC 647). Paragraphs 13 and 14 are relevant in this context and are extracted hereunder: W.A.2884/2009.
26
"13. The Precautionary Principle and the Polluter Pays Principle have been accepted as part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty. Articles 47, 48A and 51A(g) of the Constitution are as under:
"47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.- The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
48-A. Protection and improvement of environment and safeguarding of forests and wildlife.- The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.
51-A. (g) to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures." Apart from the constitutional mandate to protect and improve the environment there are plenty of post-
independence legislations on the subject but more W.A.2884/2009.
27
relevant enactments for our purpose are: the Water (Prevention and Control of Pollution) Act, 1974 (the Water Act), the Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the Environment (Protection) Act, 1986 (the Environment Act). The Water Act provides for the constitution of the Central Pollution Control Board by the Central Government and the constitution of the State Pollution Control Boards by various State Governments in the country. The Boards function under the control of the Governments concerned. The Water Act prohibits the use of streams and wells for disposal of polluting matters. It also provides for restrictions on outlets and discharge of effluents without obtaining consent from the Board. Prosecution and penalties have been provided which include sentence of imprisonment. The Air Act provides that the Central Pollution Control Board and the State Pollution Control Boards constituted under the Water Act shall also perform the powers and functions under the Air Act. The main function of the Boards, under the Air Act, is to improve the quality of the air and to prevent, control and abate air pollution in the country. We shall deal with the Environment Act in the latter part of this judgment.
14. In view of the above-mentioned constitutional and statutory provisions we have no hesitation in holding that the Precautionary Principle and the Polluter Pays W.A.2884/2009.
28
Principle are part of the environmental law of the country."
17. In other words, lack of scientific data to fix responsibility on a particular industry should not deter the authorities from taking action to remedy the damage that is caused to the environment. This is for the reason that to wait for authentic data may in many cases lead to disaster and catastrophe. The combined pollution in a particular area is therefore taken to be the result of the activities of industries that are located in the area. They, being responsible for the resultant situation, are liable not only to restore the quality of the environment, but also to rehabilitate and compensate the victims of their deleterious activities. In the present case, it is worth noticing here that the industries in the Eloor- Udyogamandal-Edayar area, have been functioning for the past many decades causing adverse effects on the quality of air, water, soil and the water sources. To permit them to shirk responsibility for the damage on the ground that there is no W.A.2884/2009.
29scientific data tracing the pollution to them or connecting their activity and establishing a link between them and the pollution, would make regulation, control and mitigation of pollution, impossible. Any such course would also permit them to carry on their activities without being subjected to any sort of regulation. Therefore, the contention that they have not been found to have violated any statute, order, condition etc, is held to be not of any significance in the context of the action initiated by Ext.P12. The appellant has a further contention that this is a case of the 2nd respondent, the statutory authority, acting under dictation. We do not find any substance in the said contention for the reason that, the Monitoring Committee, as already found by us, was constituted for ensuring proper implementation of the control measures against pollution. The Supreme Court has directed them to function in accordance with the stipulations contained in Ext.P2 order. If any such stipulation has been violated as W.A.2884/2009.
30contended, the remedy of the appellant is to approach the Apex Court with such complaint. We are not satisfied that the action taken pursuant to the direction of the Monitoring Committee could be described as "acting under dictation".
18. A further contention of the appellant is that, the Apex Court in Ext.P2 was only concerned with hazardous wastes coming within the scope of HW Rules. The radioactive wastes generated by the appellant being exempt under the said Rules, do not come within the scope of the authority of the Monitoring Committee. According to the appellant, they have obtained Ext.P1, authorization under the Atomic Energy Act. Therefore, there is no justification for the liability imposed on them by Ext.P12. As already noticed above, Annexure R2(a) is a copy of the consent issued to the appellant by the 2nd respondent. A perusal of the said consent shows that apart from radioactive wastes, the appellant was also generating hazardous wastes. The quality of the treated W.A.2884/2009.
31effluents shows the presence of a number of hazardous wastes. According to the counter affidavit filed by the 2nd respondent, the storm water from the appellant's unit is discharged directly into the river Periyar, which also contains hazardous wastes. Therefore, the appellant cannot be permitted to shirk their responsibility for the pollution of the Periyar river. According to the counter affidavit of the 2nd respondent, the appellant is storing the effluent treatment plant sludge in unlined trenches in an area where the water table is high. Therefore, the chances of seepage of contaminated water into the surface water, sub-surface water and ground water is also high. In view of the above, according to the 2nd respondent, the appellant has been identified as one of the contributors to the combined pollution in the area. For the above reason, the said contention of the appellant also has to fail.
W.A.2884/2009.
32
19. We have already found that measures to rehabilitate the affected communities as well as to provide them with recompense for the damage caused was also part of the directions contained in Ext.P2 order of the Apex Court. The appellant has already contributed their share of the costs of infrastructure for providing drinking water to the affected areas. According to the 2nd respondent, since various Wards of the Panchayat are affected, the industrial units located in proximity to the affected Wards alone have been made liable for the cost of supply of drinking water to the said locality. Thus, the appellant and the other three industrial units have been made liable for the recurring charges in respect of some Wards alone. Other industries in the area have been similarly made liable for supply of drinking water to the Wards surrounding their units. Therefore, the allegation that the appellant has been singled out as per Ext.P12 cannot be accepted. Similarly, the contention that the appellant does not W.A.2884/2009.
33discharge any effluents into the Kuzhikandam Thodu also cannot be accepted for the reason that their storm water is discharged into the said Thodu. Yet another contention is put forward that, though initially they were asked to bear the recurring charges only for a period of two years, they have been paying such charges continuously now for the past many years. According to them, during the period from 2009 to 2017, they have paid a total amount of more than a Crore rupees. The payments cannot be permitted to continue indefinitely, it is contended. In view of the above, according to the learned counsel, it is necessary to issue directions limiting such payments to some specific period.
20. Having bestowed our anxious consideration to the above contention, we are not satisfied that any specified time limit could be stipulated, restricting such payments. This is for the reason that, going by the reports, the water sources in the area have been contaminated, the wells, ponds and the W.A.2884/2009.
34Periyar River have become polluted. The community has been deprived of all its natural water resources. They have been deprived of their water sources, as a result of the industrial activity in the area. The industries have been functioning for the past many decades. They are continuing to function to this date. The need of the community for potable drinking water is only legitimate. Therefore, it is necessary that they are supplied with potable drinking water, without any disruption. The industries are carrying on their activities. The appellant's unit has also been working throughout. Therefore, there is no justification for the contention that they shall not be directed to continue the payments. It shall of course be open to the 2nd respondent or the Monitoring Committee to review the situation and to modify the directions in Ext.P12 suitably, should there be any need for so doing. There is absolutely no evidence or material before us to justify a conclusion that there has been an improvement in the quality W.A.2884/2009.
35of the environment in the area warranting a relaxation or modification of the said directions. We, therefore, find no infirmity in Ext.P12 or the judgment of the learned Single Judge, warranting an interference therewith.
For the above reasons, the appeal fails and is accordingly dismissed.
Sd/-
K. SURENDRA MOHAN JUDGE Sd/-
MARY JOSEPH JUDGE sb