Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 31/07/2007
CORAM
THE HONOURABLE MR. JUSTICE P.D.DINAKARAN
AND
THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR
W.P.(MD)No.5123 of 2007
and
M.P(MD)Nos.1 and 2 of 2007
V.R.Thangaraj,
Door No.6/104 D,
Keelavazhavu,
Melur,
Madurai - 625 102. ... Petitioner
Vs
1. State of Tamil Nadu,
represented by its Secretary
Public Works Department,
Fort. St. George,
Chennai.
2. The Member Secretary,
Tamil Nadu Pollution Control Board,
Guindy, Chennai.
3. The District Collector,
Madurai District,
Madurai.
4. P.K.Ravi
5. Pallava Granites
rep. By its Manager,
Keezhavhavu,
Melur Taluk, Madurai.
6. Mohamed Ibrahim Sait
7. PRP Granites,
represented by its Manager,
Keezhavhavu,
Melur Taluk, Madurai. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India,
praying for issuance of a Writ of Mandamus to direct respondents 1 to 3 to take
effective steps to preserve the tanks and water sources under the Periyar Vaigai
Irrigation Scheme and remove the dumped granite and other waste materials from
the Irrigation tanks under the Periyar Vaigai Scheme in Madurai District and
restore its utility within the time stipulated by this Hon'ble Court.
!For Petitioner ... Mr. T. Lajapathi Roy
^For Respondents ... Mr. R. Janakiramalu for R-1 and R-3
Special Government Pleader
Mr. R. Ramanlal for R-2
Mr. Santhosh Kumar for
Mr. Ramakrishna Reddy for R-5
:ORDER
(Order of the Court was delivered by P.D.DINAKARAN, J.) Heard Mr.T.Lajapathi Roy, learned counsel appearing for the Petitioner, Mr.R.Janakiramalu, learned Special Government Pleader for Respondents 1 and 3, Mr. R.Ramanlal, learned counsel appearing for Second Respondent and Mr. Santhosh Kumar, learned counsel for Fifth Respondent.
2. The Petitioner has preferred this petition pro bono publico complaining that respondents 4 to 7 are dumping their granite waste into irrigation tanks in Periyar Vaigai River Basin and thereby blocking the free flow of water to the next tanks; that they are exploiting public tanks as a dumping yard and are creating an environmental hazard and are causing hardship to the irrigation facilities of the agriculturists as well as the inland fishing rights of the villagers, and prays for issuance of a Writ of Mandamus to direct respondents 1 to 3 to take effective steps to preserve the tanks and water sources under the Periyar Vaigai Irrigation Scheme and remove the dumped granite and other waste materials from the Irrigation tanks under the Periyar Vaigai Irrigation Scheme in Madurai District and restore its utility within the time stipulated by this Court.
3. The Third Respondent District Collector, Madurai has filed a Counter Affidavit dated 04.07.2007, to the effect that the water bodies under reference have not received adequate water to sustain agricultural operations or fish culture and the entire ayacut area of Sirumanickam Kanmai of Keelavalavu Village had been sold by the concerned pattadars to the granite entrepreneurs for extracting granite blocks for more than 25 years. In the absence of enough water in the water bodies, the fish culture cannot be carried out. According to the District Collector, the granite lessees are dumping the granite rock waste in the patta lands separately for future use of the Government. Few quarry contractors have dumped the granite rock waste in the peripheral non water spread high level portions of the water bodies after obtaining necessary permission from P.W.D authorities so as to protect the bunds of the water bodies and to prevent cutting of the bunds by the anti social elements. It is explained that the granite rock waste dumped around the periphery of the water bodies act as a permanent barrier for the water bodies. The Collector has stated that the granite waste are also used for forming the roads, repairing and strengthening the existing roads in public interest and that the quarry operators neither produce nor discharge any hazardous or chemical effluents from the quarries and therefore, there is no question of depletion and contamination of ground water due to quarrying operations. Due to paucity of water in the area, as the water from Periyar Vaigai River Basin does not reach out to the area, it is submitted that the fish culture is not a thriving business for the common public in the area at any point of time. The Collector has also stated that the Government has taken all necessary steps to protect the ecologically fragile area and strict measures have been taken to reduce the risk of hazard to the community while granting the quarry leases in a manner that would pose the least risk of danger to the community and for maximizing the safety requirements while conducting quarrying operations. The basic environment viz., Air, Water and Soil have not been disturbed and there is no public health hazard in the area due to quarrying operations. It is also stated that the Government has taken all necessary precautions while granting lease / licence to utilise the granite potential available in the area, in public interest, so as to provide employment to the local people and to realise revenue to Government without any hindrance to the public and to protect the rights of persons conferred under Article 21 of the Constitution of India as well as to protect and to improve the natural environment including forest, lakes, river and wildlife as contemplated under Article 51-A(g) of the Constitution of India.
4. We have given our careful consideration to the submissions of both sides.
5. Undoubtedly, there are Constitutional mandates under Articles 14, 21 of the fundamental rights, 47, 48A of the directive principles of State Policy and 51A(g) of the Fundamental Duty, to protect and improve the environment. That apart, there are plenty of post-independence legislations on the subject but more 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.
6.1. Before proceeding further, we feel it apt to make a reference to the concept of Sustainable Development.
6.2. In Vellore Citizens' Welfare Forum v. Union of India (AIR 1996 SC 2715) a three-Judge Bench of the Apex Court referred to the "precautionary principle" in environmental matters. Kuldip Singh,J. after referring to the principles evolved in various international conferences and to the concept of "Sustainable Development", stated that the precautionary principle, the polluter-pays principle and the special concept of onus of proof have now emerged and govern the law in our country too, as is clear from Articles 47, 48- A and 51-A(g) of our Constitution and that, in fact, in the various environmental statutes, such as the Water Act, 1974 and other statutes, including the Environment (Protection) Act, 1986, these concepts are already implied. These principles have now become part of our law. Thus, it was held that "The Precautionary Principle" and "The Polluter Pays Principle" are essential features of "Sustainable Development".
6.3. The "Precautionary Principle" - in the context of the municipal law - means:
(i) Environmental measures - by the State Government and the statutory authorities - must anticipate, prevent and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
(iii) The "onus of proof" is on the actor or the developer/industrialist to show that his action is environmentally benign.
6.4. "The Polluter Pays Principle" has been held to be a sound principle by the Apex Court in Indian Council for Enviro-Legal Action v. Union of India, 1996 (3) SCC 212. The Court observed:
"... we are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining this country". The Apex Court observed that "... once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on". ...
"Consequently the polluting industries are absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas. The 'Polluter Pays Principle' as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of 'Sustainable Development' and as such the polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology. 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. "
6.5. For Sustainable Development, the onus of proof lies on the developer, who is on the actor or the developer / industrialist to show that his action is environmentally benign.
7.1. Now, turning to the other side of the coin of "Sustainable Development", we must never overlook the basic aim of our country, viz., to make India into a powerful model industrial country.
7.2. Industrialization alone can generate the wealth required for taking care of the people, as is the mandate of the Directive Principles of our Constitution. No body can dispute the need for protecting the environment, as everyone is entitled to pure air and water. Greenery should be protected to ensure pure air. Trees and forest have to be protected for ensuring regular rainfall and preventing soil erosion. Wild life has to be protected for maintaining ecological balance.
7.3. But, there should not be a tug-of-war between industrialization and environment protection. Industrialization should certainly ensure a good environment. Thus, without compromising any harm to the environment, the industrialization should also grow, otherwise, we would not be in a position meet the economic challenges particularly in the context of globalization.
8.1. Industrialization, particularly Granite Industry is of vital importance to the country, as it generates foreign exchange and employment avenues. But, at the same time, undoubtedly, such industrialists have no right to destroy the ecology, degrade the environment and pose any health hazard. Hence, such Industrialisation can be permitted to continue and expand only when such Industries tackle by themselves the problems of pollution created by them.
8.2. It is a settled law that the balance between environmental protection and developmental activities could only be maintained by strictly following the principle of "Sustainable Development". This is a development strategy that caters to the needs of the present without negotiating the ability of upcoming generations to satisfy their needs. The strict observance of Sustainable Development will put us on a path that ensures development while protecting the environment, a path that works for all peoples and for all generations. It is a guarantee to the present and a bequeath to the future. All environment-related developmental activities should benefit more people while maintaining the environmental balance. This could be ensured only by strict adherence to Sustainable Development without which life of the coming generations will be in jeopardy. The adherence to Sustainable Development principle is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand, right to development is also one. Here the right to Sustainable Development cannot be singled out. Therefore, the concept of Sustainable Development is to be treated as an integral part of life under Article 21. Weighty concepts like intergenerational equity, public trust doctrine and precautionary principle, which have been declared as inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring Sustainable Development. To ensure Sustainable Development is one of the goals of the Environment (Protection) Act, 1986 and this is quite necessary to guarantee the right to life under Article 21. If the Act is not armed with the powers to ensure Sustainable Development, it will become a barren shell. In other words, Sustainable Development is one of the means to achieve the object and purpose of the Act as well as the protection of life under Article 21. Acknowledgment of this principle will breathe new life into our environmental jurisprudence and constitutional resolve. Sustainable Development could be achieved only by strict compliance with the directions under the Act. The object and purpose of the Act: "to provide for the protection and improvement of environment" could only be achieved by ensuring strict compliance with its directions. The authorities concerned by exercising their powers under the Act will have to ensure the acquiescence of Sustainable Development. Therefore, the directions or conditions put forward by the Act need to be strictly complied with. Thus the power under the Act cannot be treated as a power simpliciter, but it is a power coupled with duty. It is the duty of the State to make sure the fulfilment of conditions or direction under the Act. Without strict compliance, right to environment under Article 21 could not be guaranteed and the purpose of the Act will also be defeated. The commitment to the conditions thereof is an obligation both under Article 21 and under the Act [vide N.D.Jayal v. Union of India, (2004) 9 SCC 362].
9. When our country is emerging as one of the major power in the global arena, a duty is cast on the State to maintain the environmental protection to protect and maintain the environmental elements such as Air, Water and Soil and also for the economic development of the country by Industrialisation. While the right to life is legitimate expectation as the same is protected under Articles 14 and 21 of the Constitution of India, the right for Industrialisation conferred under Article 19(1)(g) of the Constitution of India to generate more wealth and get more foreign exchange is also equally to be taken care of for the socio-economic welfare of the community. Industrialisation should also grow without causing any harm to the environment, otherwise, we would not be in a position to meet the economic challenges particularly in the context of globalisation.
10. For Sustainable Development, it is thus the duty of the authorities, particularly, in the instant case Respondents 1 to 3 to strictly adopt and adhere to all precautionary measures for fulfillment of the essential features both in maintaining the environmental conditions and developing the Industrialisation. The Government and the Statutory Authority therefore must anticipate, prevent and attack causes of environmental degradation. The Government is also shouldered with the responsibility to monitor environmental protection equipment / measure for protection of eco-friendly environment and to ensure socio-economic growth for a Sustainable Development in the locality.
11. It is under such circumstances, judicious conscience requires the Court to direct the Government and the Executive viz., Respondents 1 to 3 to effectively oversee the Sustainable Development for the growth of the Industrialisation, in the instant case granite mining operations, without giving room for any environmental hazard, which would cause loss to the irrigation facility of the locality of the people and also local rights such as inland fishery etc., if exists.
12. While the petitioner has implored against the alleged dumping of granite waste in Periyar Vaigai River Basin, the Collector in his Counter Affidavit has stated that the quarry operators are dumping waste in the peripheral non water spread high level portions of the water bodies after obtaining necessary permission from the Public Works Department, so as to protect the bunds of the water bodies and to prevent cutting of the bunds by the anti social elements and that the quarry operators neither produce nor discharge any hazardous or chemical effluents from the quarries or where they dump the granite wastes in their private lands and therefore, there is no question of depletion and contamination of ground water due to quarrying operations. On the other hand, it is acknowledged that the granite lessees are only rendering their help to the common public to redress their grievances relating to the drinking water and road facilities problems. However, a public duty is cast on the District Collector to ensure that neither the quarry operations nor dumping of the granite wastes cause any environmental hazard.
13.1. It is further acknowledged that the quarry operators were permitted by the Public Works Department to dump the waste in the peripheral non water spread high level portions of the water bodies so as to protect the bunds of the water bodies and to prevent cutting of the bunds by the anti social elements. The District Collector is obligated to oversee that such quarry operators do not exploit such permission.
13.2. The proposal of the Executive that the granite waste would be used for forming the roads in the patta lands, repairing and strengthening the existing roads in the public interest is of course convincing. However, we add that such proposal is required to be implemented effectively by entering into appropriate agreement with the quarry operators.
14. In the circumstances of the case, suffice it to direct Respondents 1 to 3 to make periodical inspections of the granite quarrying areas and ensure Sustainable Development and to give necessary direction from time to time to the quarry operators to maintain an eco-friendly environment and to ensure socio-economic growth for a Sustainable Development in the locality, protecting the rights conferred under Articles 14, 19(1)(g) and 21 of the Constitution of India.
15. With the above observations and directions, this writ petition is disposed of. No costs. Consequently, the connected M.P(MD)Nos.1 and 2 of 2007 are closed.
Dpn/-
To:
1. The Secretary, State of Tamil Nadu, Public Works Department, Fort. St. George, Chennai.
2. The Member Secretary, Tamil Nadu Pollution Control Board, Guindy, Chennai.
3. The District Collector, Madurai District, Madurai.