ENVIRONMENTAL LAW

CASE COMMENT
INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION & OTHES V. UNION OF INDIA & OTHERS.1
SURBHI SONI
ROLL NO. 876
SEMESTER VII
SECTION A

INTRODUCTION:
This case deals with the environmental degradation caused by the untreated effluents of the
manufacturing process of the H Acid. The Bench comprised of Justice B.P. Jeevan Reddy
and Justice B.N. Kirpal. Justice Reddy wrote the judgment.
FACTS OF THE CASE:
Bichhri is a small village in Udaipur district of Rajasthan. In 1987 Hindustan Agro Chemicals
Limited [Respondent No.4] started producing certain chemicals like Oleum and Single
Super Phosphate. Subsequently, Silver Chemicals [Respondent No. 5], commenced
production of 'H' acid in its plant. This H acid was exclusively meant for export purposes.
Its manufacture gives rise to enormous quantities of highly toxic effluents - in particular,
iron-based and gypsum-based sludge. Jyoti Chemicals [Respondent No. 8] is another unit
established to produce 'H' acid, besides some other chemicals. Respondents Nos. 6 and 7
were established to produce fertilizers and a few other products. All the units of Respondent
nos. 4-8 are situated in the same complex.
The production of H acid led to 2400-2500 MT of highly toxic sludge [iron-based sludge
and gypsum-based sludge] besides other pollutants. Because the toxic untreated waste waters
were allowed to flow out freely and were thrown in the open in and around the complex, the
toxic substances have percolated deep into the bowels of the earth polluting the aquifers and
the sub-terrain supply of water. The water in the wells and the streams has turned dark and
dirty rendering it unfit for human consumption. It has become unfit for cattle to drink and for
irrigating the land. The soil has become polluted rendering it unfit for cultivation. The
villagers revolted against this, leading to the imposition of Section 144 Cr. PC by the District
Magistrate in the area and the closure of these units.

CONTENTIONS OF THE PARTIES:

Petitioner:
1 AIR1996SC1446.

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1. The Reports very clearly establish that it is the respondents alone who are responsible
for the environmental degradation that has happened in Bichhri village and
surrounding areas. It is their responsibility and obligation to properly store the
remaining sludge, stop discharge of all untreated effluents by taking necessary
measures and defray the total cost required for remedial measures as suggested by
NEERI report.
2. The respondents have continuously violated the laws and lawful orders passed from
time to time. In light of the same they must be closed down.
3. The petitioner relied strongly upon the case of M.C. Mehta v. Union of India [Oleum
Gas Leak Case]2 and stated that the principle of absolute liability be applied in the
present case, as the respondents had been carrying an activity that has grave impact on
the environment.
Respondents:
1. The respondents are not 'State' within the meaning of Article 12 of the Constitution. A
writ petition under Article 32 of the Constitution, therefore, does not lie against them.
2. The R.P.C.B. has been adopting a hostile attitude towards these respondents from the
very beginning; therefore, the Reports submitted by it or obtained by it are suspect.
Moreover, the respondents had no opportunity to test the veracity of the said Reports.
3. Before the respondents came into existence, Hindustan Zinc Limited [Respondent
No. 9] was already in existence close to Bichhri village and has been discharging
toxic untreated effluents in an unregulated manner. Blaming the respondents for the
said pollution is incorrect and unjustified.
4. Only the units of the respondents have been picked upon by the Central and Sate
authorities while taking no action against the other units.
5. The Reports submitted by the various expert committees that sludge is still lying
around within and outside the respondents' complex is untrue and incorrect. There is
no sludge and there is no toxic discharge from the Sulphuric Acid Plant.
6. The respondents' units were established before the amendment of Section 25 of the
Water Act and, therefore did not require any prior consent for their establishment.
Therefore, RPCBs case that the respondents' units do not have the requisite permits/
consents is incorrect.
7. The law laid down in Oleum Gas leak Case3 is at variance with the established legal
position in other Commonwealth countries. The rule laid down in Rylands v. Fletcher
is the applicable rule.
It was also submitted that in this case no compensation was awarded because Shriram
(the delinquent company) did not came within the meaning of 'State' in Article 12 so
as to be liable to the discipline of Article 21 and to be subjected to a proceeding under
2 [1987]1SCR819.
3 M.C. Mehta v. Union of India, [1987]1SCR819.

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Article 32 of the Constitution. Thus what was said in the Oleum Gas leak Case was
essentially obiter.
DECISION: The Supreme Court allowed the writ petition.
REASONING FOR THE DECISION:
1. The writ petition is not for issuance of appropriate writ, Order or directions against
the respondents but is directed against the Union of India, Government of Rajasthan
and R.P.C.B. to compel them to perform their statutory duties enjoined by the Acts on
the ground that their failure to carry out their statutory duties is seriously undermining
the right to life [of the residents of Bichhri and the affected area] guaranteed by
Article 21.
2. There is no proof of hostility on part of the RPCB, the reports are fully corroborated
and affirmed by the Reports of central team of experts and of NEERI. The RPCB
acted because the respondents established and were operating their plants contrary to
law, flouting all safety norms provided by law.
3. The expert reports, the NEERI report, and other reports were made at the instance of
the court. The objection that the respondents were not given an opportunity to crossexamine them, urged at this late stage of proceedings - after a lapse of several years is wholly unacceptable.
4. Respondent No.9 may be responsible for discharging effluents, but no report says that
respondent 9 is responsible for pollution of Bichhri village. This petition is confined
only to pollution in Bichhri village.
5. The responsibility of the respondents for causing the pollution in the wells, soil, and
the aquifers is clearly established by the analysis Report referred to in the Report of
the Central Experts team. The respondents are alone responsible for the
environmental degradation in the Bichhri village and surrounding areas.
6. The removal of remaining sludge and/ or the stoppage of discharge of further toxic
waters is the absolute responsibility of the respondents.
7. The Oleum Gas Leak Case is to be applied. The principle that is to be evolved for
fixing liability should be simple, practical and suited to the conditions of this country.
The law stated by the Court in Oleum Gas Leak Case is by far the more appropriate
one - apart from the fact that it is binding upon the court.
8. The measure of compensation must be correlated to the magnitude and capacity of the
enterprise because such compensation must have a deterrent effect.
9. Even if it is assumed that the Court cannot award damages against the respondents in
these proceedings because the respondents are not State, that does not mean that the
Court cannot direct the Central Government to determine and recover the cost of
remedial measures from the respondents. The central government has power to do so
under 3, 4, and 5 of the Environment (Protection) Act 1986.
In the present case, the said powers will include giving directions for the removal of
sludge, for undertaking remedial measures and also the power to impose the cost of
remedial measures on the offending industry and utilize the amount so recovered for
carrying out remedial measures.

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10. The court applied the Polluter Pays principle. The responsibility for repairing the
damage is that of the offending industry. Sections 3 and 5 empower the Central
Government to give directions and take measures for giving effect to this principle.
DIRECTIONS GIVEN BY THE COURT:
1. The Central Government shall determine the amount required for carrying out the
remedial measures.
2. Closure of all the plants and factories of Respondents 4 to 8 located in Bichhri village.
The R.P.C.B. is directed to seal all the factories/ units/plants of the said respondents.
3. With respect to the claim for damages for the loss suffered by the villagers, it is open
to them or any organization on their behalf to institute suits in the appropriate civil
court.
4. The Central Government shall consider whether it would not be appropriate, in the
light of the experience gained, that chemical industries are treated as a category apart.
SUBSEQUENT LITIGATION:
Even after fifteen years of this final judgment (given on February 13, 1996), the litigation had
been deliberately kept alive by filing various interlocutory applications in order to avoid
compliance with the judgment. The judgment of the Court had not been permitted to acquire
finality till 2011. July 18, 2011, Justice Dalveer Bhandari and Dattu H.L, directed the
applicant-industry to pay Rs. 37,385,000 INR (USD 608,628) along with compound interest
@ 12% per annum from April 11, 1997 till the amount is paid or recovered.

-CASE COMMENT: INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION V. UNION OF INDIA-