Introduction

Bichhri is a small village in Rajasthan, India’s Udaipur District. There is major industrial settlement north of this village, Hindustan Zinc Limited, a public sector concern. This did not affect Bichhri, however, but the problems began in 1987 when Hindustan Agro Chemicals Limited’s fourth respondent started manufacturing other chemicals such as Oleum (the condensed form of sulphuric acid) and Split Super Phosphate. The real calamity came when another sister concern, Silver Chemicals (Respondent 5), began to manufacture ‘H’ acid in a plant throughout the same complex. The ‘H’ acid was primarily intended for export. The manufacture results in huge volumes of highly toxic effluents — especially iron-based and gypsum-based sludge — that pose a serious threat to Mother Earth if not properly handled. It kills the soil, water and whatever comes into contact with it. In addition to some other chemicals, Jyoti Chemicals (Respondent 8) is another unit formed to produce ‘H’ acid. Respondents 6 and 7 were named for the production of fertilizers and few more other products. All Respondents 4 to 8 units / factories are located within the same geographical area and are operated by the same community of individuals. All the units are what would be called “chemical industries”. According to the study about 2500 tons of highly toxic sludge were produced while 375 tons of H-acid were produced. And, all the sludge dumped into the village area’s open field. The harmful contaminants leached and seeped deep into the earth over time, polluting the aquifers and the subterranean water supply. The water from the wells and other nearby streams turned dark in colour and was very poorly polluted. It won’t remain to be used for anything which include drinking, irrigation, and cattle.

The soil thus becomes contaminated rendering it unsuitable for agriculture, which is the major source of livelihood for the villagers. Further, this same pollution caused illness, decapitation as well as disaster in the village and in the surrounding communities. This sudden depletion of earth and water even had a resonance in Parliament and the corresponding minister ensured that action is being taken, but on the spot there was very little substantial to do. The villagers then erupted in virtual revolt leading to the District Magistrate’s implementation of Section 144 of the Code of Criminal Procedure in the district, and the closure of Silver Chemicals in January 1989.

Background of the Case

In August 1989, the Indian Council for Environmental Legal Action filed the Writ Petition with the request to the Court about the need to take effective decisive measures. The Rajasthan Pollution Control Board claimed in its affidavit that (i) the board obtained NOC from Hindustan Agro Chemicals Ltd. for the manufacture of sulphuric acid and alumina sulphate but, without approval from the Board, this unit modified its products and started manufacturing oleum and single super phosphate. The consent was denied and instructions for closing the unit were given under the Air (Pollution Prevention and Control Act, 1981); and (ii) the Silver Chemical has confirmed that it produces H-acid without the Board receiving NOCs. The wastes generated from H-acid processing was potentially toxic and contained a very high concentration of solutes solids along with a variety of other pollutants. Likewise, the comprehensive report was submitted to the Hon’ble Supreme Court for approval by the Board and Authority of every concern. Further, the Govt. Of Rajasthan on 20-1-1990 filed its counter-affidavit. In paragraph 3, it made a curious statement to the effect that the government of the state is now aware of the contamination of groundwater sources caused by liquid effluent from the firms mentioned in the written petition as respondents 4 to 8. The state government has therefore initiated action through the Pollution Control Board to regulate further pollutants dissemination. The Hon’ble Court asked the National Environmental Engineering Research Institute (NEERI) to examine this situation inside and outside the village of Bichhri and send their report “on the option and scale of remedial alternatives available” NEERI was also asked to recommend both the short-term and the long-term steps required to mitigate the threat already created. Based on the NEERI study and other facts, the Supreme Court ordered the immediate removal of the sludge lying on the ground to avoid the possibility of the rainy season penetration of radioactive substances into the soil. On 4th April 1990, The Court further ordered the Ministry of Environment and Forestry, Government of India, to promptly deplore its specialists to inspect that area to determine the presence and extent of gypsum-based and iron-based sludge and to recommend the procedures for treatment and disposal and to recommend a kit for its transport and safe storage. The cost of such storage and transportation was aimed at recovering from the Complex-based industries. But the Supreme Court passed the final order on 13 February 1996 as follows:
“They are of the opinion that, where an operation engaged in a hazardous or inherent industry poses a possible danger to the health and safety of people working in the factory and living in the surrounding areas, it is an absolute and non-delegable obligation of the Corporation to ensure that it does not harm others because of the dangerous or inherently dangerous nature of the activity it has carried out. It is therefore held that when a company is involved in a dangerous or potentially hazardous operation and damages someone as a result of an accident, the company is specifically and entirely liable to reimburse all those impacted by the accident and that such responsibility is not subject to any of the exceptions provided for in the tortuous principles of strict liability laid down in the case of Ryland’s vs. Fletcher, the legal validity down by the court in the case Oleum Gas Leak M.C.Mehta Vs. UOI & OR’s also applies in this case and the factories are completely liable to compensate the villagers in the affected area, the soil and the groundwater for the harm they cause and are also obliged to take all appropriate steps to eliminate the sludge and other contaminants in the affected area about 350 hectares. The polluter pays principle demands that the monetary cost of attempting to prevent or rectifying damage due to pollution should lie only with industries which precipitated the harmful emissions”.

Nonetheless, this is a very rare and exceptional lawsuit where the case was purposely kept alive even after fifteen years of this court’s final judgment (date of judgment February 13, 1996) by bringing one or the other interlocutory appeal in order to escape compliance with the judgement. This Court’s said judgment has not been enabled to gain finality until that time. It is a prime illustration of how even the Supreme Court’s final decision may be circumvented for more than a decade by misuse of the law process. This is undoubtedly a rather sensitive issue regarding the holiness and dignity of the judiciary in general, and of the country’s Supreme Court in specific.
Mr M.C. Mehta, Advocate has filed written submissions for Enviro Legal Action on behalf of the Indian Council. In the submissions, it is emphasized that these proposals are an utter disregard for compliance with this court’s directions. Through filing those proposals, they made fun of the environmental justice delivery system. They have shown little contrition to do irreparable harm to the lives, health, and properties of the people affected by their company. The applicants are attempting to withhold the payment of Rs.373, 850,000 INR for taking remedial action. Mr Mehta also relied on the court’s judgment in the case of M.C. Mehta v. Kamal Nath and others (2000) 6 SCC 213, in which the court held that: “pollution is a civil error”.

This is by its very definition a crime perpetrated against the entire society. Therefore a person who is guilty of causing pollution must pay damages (compensation) for environmental and ecological restoration. They also need to pay restitution to those who have suffered harm because of the offender’s act. This court’s powers under Articles 32 and 21 are not limited, and it can grant damages in a PIL or a Writ Petition as held in a series of judgments. In addition to the above penalties, the person who is responsible for causing pollution could also be held criminally liable to pay exemplary damages so that it can serve as a deterrent to those not causing pollution in any way.

Issues

• What is the metric of an obligation of industries that are actively involved in such a hazardous or inherently dangerous industry, if by reason of an accident or incident in such industry, persons die or are harmed?
• Does the Ryland’s v. Fletcher rule apply in these cases, or is there any other concept by which to assess the liability?
• One thing is that the respondents will pay the amount required to carry out effective remedial action but will they pay just that amount or with interest? If the time were a few days or months it may have been different, but in this case, it is almost 14 years delay and there is no payout for the sum.

In Fact, these issues further raises Three Questions –

a. Can a party which refuse to comply with the judicial order be allowed to maintain the privileges of its own failing to comply?

b. If the effective party should not be forgiven for depriving the party of its rightful dues for more than fourteen years by way of restitution? So what is it?

c. That whether the court must not disable all incentives for not having to comply with the decision of the court?

Analysis (Constitutional Provision)

• Article 48A of the Indian Constitution (introduced following Amendment 42, 1976) states that “the State shall endeavour to conserve and improve the environment and the protection of the forests and wildlife of that nation.”
• Article 51A (g) presented ‘Fundamental duties’ includes a specific duty on each individual to ‘preserve and develop the natural environment, including forests, lakes, rivers and wildlife, and to value living creatures.’
• Article 32 of the Indian Constitution provides for the exclusive rights of any Indian citizen to file a petition whose fundamental right is infringed by some means or by some.

Judgment

18 July 2011, Justice BHANDARI DALVEER and DATTU H.L: “We have looked at the facts and circumstances of this case carefully. In a majority of incidents we have also looked at the legislation enacted by this Court and other countries. We are obviously of the opinion that the applicant-industry concerned shall deposit with compound interest the amount as specified by this vide order of the Court dated 11 April 1997. Since 11 April 1997, the applicant-industry has intentionally refused to comply with this court’s orders. Hundreds of villagers have been significantly impacted, because so far yet there are no successful remedial measures. The applicant-industry has persisted in their approach in refusing to comply with the court’s order by holding the case alive for more than 15 years by filing interlocutory applications that were absolutely without any merit and therefore dismissed with costs. The applicant-industry is then directed to pay Rs.37, 385,000 INR (USD 608,628) along with compound interest @ 12 per cent per annum from April 11, 1997 until the sum is paid or recovered. The applicant-industry is also geared toward paying legal costs. Even after this Court’s final judgment, the case was held going for nearly 15 years. For all of these years the respondents felt obligated to fight this case. The time of Enormous Court has been lost all those years. In both the interlocutory proceedings, taking into account the entirety of the facts and circumstances of this case, we direct the applicant-industry to pay the costs of Rs.1, 000,000 INR (USD 16,280). The sum of costs will also be used under the guidance of the authorities concerned to carry out remedial measures in Bichhri village and surrounding areas in Udaipur district of Rajasthan, India”.

Conclusion

In addition, this Court applied the polluter pays concept and thus described: the polluter pays principle demands that the financial consequences of avoiding or remedying pollution-related harm either rest with the undertakings that caused the pollution or created the pollution-related products. Under this theory, it is not the government’s responsibility to cover the costs involved either in avoiding such harm or in carrying out remedial measures, since the impact of that will change the taxpayer’s financial burden of the pollution accident.

Frequently Asked Questions (FAQs)

• Can a party which refuse to comply with the judicial order be allowed to maintain the privileges of its own failure to comply?
• Which landmark case principle has been followed in this case?
• Does the court’s power in Article 32 and Article 21 are limited?

References

1. IndianKanoon, https://indiankanoon.org/doc/1818014/
2. Water (Prevention and Control of Pollution) Act, 1974
3. Air (Prevention and Control of Pollution) Act, 1981
4. https://elaw.org/content/india-indian-council-enviro-legal-action-v-union-india-wp-6641993-19960418-coastal-zone-case