IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08-02-2010 CORAM THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR WRIT PETITION NO.22683 OF 2009 and M.P.NOs.1 & 2 OF 2009 The All India Skin and Hide Tanners & Merchants Association, a Society registered under the Tamil Nadu Societies Registration Act, 'Leather Centre', No.53, Raja Muthiah Road, Periamet, Chennai 600 003. Rep. by its Joint Secretary M. Faiyaz Ahamed ..Petitioner Vs. 1. The Loss of Ecology (Prevention and Payment of Compensation) Authority, No.298, Peters Road, Royapet, Chennai 600 086, Rep. by its Member Secretary 2. The Vellore Citizens Welfare Forum, Anna Nagar, Vellore rep. by its President 3. D. Venugopal 4. V. Mythili R3 & R4 impleaded as per order dt.19.1.10 in M.P.No.3/09 ..Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorari to call for the records relating to the award and report for Vellore District, dated 24th August 2009 passed by the 1st Respondent and quash the same. For Petitioner : Mr.G. Rajagopalan Senior Counsel for M/s.G.R. Associates https://hcservices.ecourts.gov.in/hcservices/ For Respondent-1 : Mr.N. Sankaravadivel Respondents 3 & 4 : Mr.T. Mohan O R D E R ELIPE DHARMA RAO, J The present writ petition has been filed to quash the award and report for Vellore district, passed by the 1st respondent - The Loss of Ecology (Prevention and Payment of Compensation) Authority, dated 24.8.2009. 2. The background of facts leading to filing of this writ petition, in brief, are as follows :- Aggrieved by the manner in which the tanneries in the state of Tamil Nadu are posing threat to the ecosystem and alleging that enormous discharge of untreated effluents into the river Palar is resulting in non-availability of potable water in the area, a Public Interest Litigation under Article 32 of the Constitution of India was filed before the Honourable Supreme Court in W.P.(C) No.914 of 1991 by Vellore Citizens Welfare Forum, praying to issue a Writ of Mandamus, directing the respondents therein viz. Union of India and the State of Tamil Nadu, to immediately pay adequate compensation to victims of pollution and to those who lost their lives, food crops, vegetation, trees, agricultural land, wells and suffered severe hardship due to irresponsible and negligent act of polluting tanneries, the amount to be paid in compensation to the affected people be recovered from the polluting tanneries and the Honourable Apex Court in its landmark judgment in VELLORE CITIZENS WELFARE FORUM vs. UNION OF INDIA AND OTHERS [AIR 1996 SC 2715], dated 28.8.1996, has directed the Central Government to constitute an authority under S.3(3) of the Environment (Protection) Act, 1986 which shall confer on the said authority all the powers necessary to deal with the situation created by the tanneries and other polluting industries in the State of Tamil Nadu. The Apex Court has also observed that the Madras High Court would be in a better position to monitor these matters hereinafter and requested the Chief Justice of the Madras High Court to constitute a Special Bench "Green Bench" to deal with this case and other environmental matters. With specific directions and observations, such PIL was transferred to the Madras High Court, which was renumbered as W.P.No.13433 of 1996. In obedience of the direction of the Apex Court, the Loss of Ecology (Prevention and Payment of Compensation) Authority has been constituted by the Government of India, vide its Notification in S.O.671 (E), dated 30.9.1996 with a retired Judge of this Court, as the Chairperson and the said Authority started functioning from 23.9.1998. Among other powers and functions, mainly the Authority is to assess the loss to the ecology and environment in the affected areas and also identify https://hcservices.ecourts.gov.in/hcservices/ the individuals and families who have suffered because of the pollution and assess the compensation to be paid to the said individuals and families and to determine the compensation to be recovered from the polluters as cost of reversing the damaged environment. By the Award dated 7.3.2001, the said Authority identified 29,193 individuals/families as affected and the compensation was assessed at Rs.26,82,02,328/= for the period 12.8.1991 to 31.12.1998 in respect of 15,164.96 hectares in 186 villages in 7 Taluks of the District and in the said Award, the Authority has made it clear that the liability of the polluting industries to compensate affected individuals continues beyond 31.12.1998 till the damage caused to the ecology and environment by pollution is reversed. The aforesaid Award particularly with reference to apportionment of the compensation came to be challenged in W.P.No.512 of 2002 and the very validity of the Notification dated 13.9.1996, appointing the said Authority, was questioned by the petitioner in W.P.No.7015 of 2000 and a Division Bench of this Court has disposed of the writ petition by order dated 22.3.2002 by giving direction to the present petitioner and the tanners to make payment of compensation in instalments. While the matter stood thus, the Vellore Citizens Welfare Forum, the present second respondent herein, has filed W.P.No.23291 of 2006 for issuing a Writ of Mandamus directing the Ministry of Environment and Forest and the State of Tamil Nadu to make the first respondent Authority as permanent body for the State of Tamil Nadu and to appoint the Managing Committee, Chairpersons and member to said authority. When the matter came up for hearing, a Division Bench of this Court on 20.12.2007, had passed the following order :- "Learned counsel appearing for the Loss of Ecology Authority states that the Authority will consider all the applications filed before the cut-off-date, which are pending as well as the applications which are filed after the cut-off-date and decide them in accordance with law and grant compensation wherever the case is made out. Adjd to 02.1.2008 to consider the report of the Loss of Ecology Authority relating to location of the hazardous units covered under G.O.Ms.No.213, dated 30.3.1989." 3. Arming with the aforesaid order, the first respondent Authority issued Letter dated 11.8.2008 to the petitioner Association calling upon them to attend a Meeting on 18.8.2008 to discuss about the claim made by number of individuals which arose to 8,000 approximately. The petitioner issued a reply dated 15.9.2008 to drop the further proceedings in the matter. Again by letter dated 22.9.2008, the first respondent has requested the petitioner to send one of its representatives to accompany the team for field survey. In reply, dated 30.10.2008, the petitioner has stated that if any person claims compensation and it is allowed by the authority, the https://hcservices.ecourts.gov.in/hcservices/ same shall be paid out of the amount lying with the Collector (paid by the industry) and there will be no further liability on the industry. Thereafter, the first respondent Authority by issuing Show Cause Notice dated 20.3.2009 promulgated that the polluters' are liable to pay compensation to the tune of Rs.91 crores to the affected individuals/families who are left out, for the period from 1991 to 1998 for having caused environmental degradation and thereby called upon every individual to appear in person to offer views/submissions on 9.4.2009. In response to the aforesaid notice, the petitioner filed its reply on 16.4.2009. After taking into consideration the reply of the petitioner as well as the submissions made by other individual tanners and the claim applications made by the left out individuals, the Authority submitted its Report & Award dated 24.8.2009, whereunder the Authority determined a total sum of Rs.2,91,01,278/- as compensation payable to 1377 affected individuals by the same 547 polluters as were identified in the original award dated 7.3.2001. Such subsequent award dated 24.8.2009 is under challenge in the present writ petition. 4. Learned Senior Counsel appearing for the petitioner Association has assailed the impugned award by raising the following contentions:- (i) The report and award of the Loss of Ecology (Prevention and Payment of Compensation) Authority, dated 24.8.2009, for Vellore district is without jurisdiction inasmuch as a detailed enquiry was conducted with regard to the period 1991-1999 and an award was already passed on 7.3.2001 and the tanners had also paid the amount under the award. In the said context, it is contended that re- opening the exercise after nine years does not arise. (ii) The order passed in W.P.No.23291 of 2006 and other similar writ petitions would not bind the petitioner Association as the petitioner was not made a party to those proceedings. (iii) The amount deposited subsequent to the award passed on 7.3.2001 should have been disbursed and a fresh liability ought not to have been fastened on the tanners. (iv) When the appropriate authorities have identified the villages and amount had been paid as per the earlier award, it is not open to the 1st respondent to entertain fresh claim applications. (v) The award and the report dated 24.8.2009 is against the principle of natural justice and based on assumptions and presumptions. (vi) The inspection reports transpire that the samples were taken in 2009 on a single day and, therefore, the condition of 1991-1998 cannot be determined by taking samples in the year 2009 and https://hcservices.ecourts.gov.in/hcservices/ the procedure contemplated under Rule 6 of the Environment (Protection) Rules, 1986 has not been followed. 5. From the facts narrated above, it is apparent that the first respondent Authority had processed 7937 claims, which were received before and after the cut-off date, and on scrutiny it found 515 applications as duplicated and the remaining 7422 claims were processed and due intimation was sent to the petitioner. After making Field Survey, which was intimated to the petitioner, and categorising the claims under two categories and on verification of revenue records, 6045 claims were found to be ineligible and came to be rejected. Finally out of 7422 claims, 1377 cases were found to be affected villagers eligible for compensation due to ecological damage to their lands. By applying the similar methodology adopted in Section 6.1 of the earlier award of the year 2001, the Authority determined a total sum of Rs.2,91,01,278 as compensation payable to affected individuals by 547 polluters, who were identified as polluters in the earlier award of 2001. 6. So far as the first contention regarding limitation is concerned, though it prima facie appears to be attractive, it cannot be accepted for the reason pointed out by the learned counsel appearing for the first respondent authority, that the polluter's liability is an absolute liability and the polluter cannot escape from the liability after coming to the conclusion that it had caused pollution. It is true that the subsequent award came to be passed in the year 2009, after a period of about eight years, but that will not preclude the left out ryots or farmers from making any application for claiming compensation. Further, in the case on hand, the Authority is not expected to function as a civil court, on the other hand, it has to follow only the just and fair procedure. We cannot lost sight of the fact that the left-out claims have been referred by the High Court to be considered by the Authority and grant compensation wherever the case is made out. Further the award passed in 2009 cannot be termed as a fresh award because, in the present case, the claim relates to the leftover individuals who were affected during the period between 1991-1998 and, therefore, the present award is nothing but continuation of the earlier award of the year 2001. Therefore, the contention of the learned Senior Counsel for the petitioner that the claim made by the leftover individuals is barred by limitation cannot be accepted and such contention is liable to be rejected. 7. The next contention of the Senior Counsel is to the effect that the petitioner was not made a party to, and heard in, W.P.No.23291 of 2006 and other writ petitions, and therefore the order directing consideration of the left cases by the Authority is not binding on them. It is true that the petitioner was not a party to the writ petition in which the High Court directed to consider the left over cases or in other writ petitions. The industry which https://hcservices.ecourts.gov.in/hcservices/ found to be polluted even by the Apex Court in W.P.No.914 of 1991 cannot be heard to absolve themselves from the liability to pay compensation in the face of the maxim of "polluter pays principle". Therefore, the ground of non-impletion as a party would not absolve the industry from paying compensation as rightly contended by the learned counsel appearing for the first respondent. Hence, this contention of the learned Senior Counsel is liable to be rejected. 8. The next contention is to the effect that the amount deposited pursuant to the award passed on 7.3.2001, should have been disbursed to the left out individuals and a fresh liability ought not to have been fastened on the tanners. This contention again is said to be only rejected. A Division Bench of this Court by order dated 20.12.2007 in W.P.No.23291/2006 had observed that each and every claim application filed before the cut-off date and after the cut-off date should be decided in accordance with law and compensation should be granted wherever the case is made out. Therefore, it is clear that each and every claim should be considered individually. In the Award dated 7.3.2001, the said Authority identified 29,193 individuals/families as affected and the compensation was assessed at Rs.26,82,02,328/= for the period 12.8.1991 to 31.12.1998 in respect of 15,164.96 hectares in 186 villages in 7 Taluks of the District. When such award was questioned before the High Court, the petitioner and other tanners have no dispute over the amount awarded by the first respondent Authority and the apportionment made thereunder. Therefore, at this stage, the petitioner cannot contend that the amount awarded under the earlier award should be adjusted towards the present leftover claimants. Further the award passed pursuant to the order of the High Court dated 20.12.2007 is continuation of the earlier award and the left over claimants were not considered in the earlier award. Further it is not in dispute that certain amount awarded as per award of the year 2001 were paid to the affected individuals. Taking into consideration all the aforesaid facts, I do not think the petitioner now can contend that the amount awarded under the earlier award and pending with the Collector should be disbursed to the leftover affected individuals and they should not be fastened with any future liability. 9. In the above context, the learned Senior Counsel has also contended that what was awarded by the Authority and paid by the polluters as compensation was an "one time payment" and therefore no more liability can be mulcted on them. "Polluter pays principle" adopted is clear that the polluter continues to be liable till the ecological damage caused by him is restored. Moreover, the polluter's liability is an absolute liability. For the reasons stated in the earlier paragraphs, this contention is also stated to be rejected. 10. Learned Senior Counsel has further contended that the entire report and award is in violation of the principles of natural justice https://hcservices.ecourts.gov.in/hcservices/ inasmuch as they have been deprived of their right to cross examine the study team. 11. A perusal of the award would show that at the request made by the petitioner a list of the new claimants with the survey numbers of the lands where the wells, from which water samples were taken for study, are situate has been furnished. Further a perusal of the materials on record including the correspondence between the parties would show that the petitioner has not made any specific request either written or orally to the Authority seeking permission for cross-examination in response to the show cause notice. On the other hand, such correspondence would show that the Authority before making Field Survey has requested the members of the petitioner's Association to be present. Inspite of such intimation, the members of the petitioner's Association have not participated in such survey and in further proceedings. They had simply replied in the letter dated 13.10.2008 by stating that "the Award computed by the Authority on the basis of its survey has been paid by the individual tanneries and we may not have, as of now, any further role in the matter". Therefore, it is apparent that the petitioner Association has not shown any interest in the matter and they had left the matter to reach its logical end. After the amount is determined and show cause notice was issued and the award came to be passed, it is not for the petitioner to contend that the award was passed in violation of principles of natural justice and it is based on assumptions and presumptions. In view of the correspondence between the parties and the reasons stated in the award, we are not in a position to accept the contention of the learned Senior Counsel in this regard. 12. The last contention raised by the Senior Counsel is to the effect that the inspection reports transpire that the samples were taken in 2009 on a single day and, therefore, the condition of 1991- 1998 cannot be determined by taking samples in the year 2009. At the time of hearing learned Senior Counsel stressed this contention by placing reliance upon Rule 6 of the Environment (Protection) Rules, 1986, which is to the following effect :- "6. Procedure for taking samples.- The Central Government or the officer empowered to take samples under section 11 shall collect the sample in sufficient quantity to be divided into two uniform parts and effectively seal and suitably mark the same and permit the person from whom the sample is taken to add his own seal or mark to all or any of the portions so sealed and marked. In case where the sample is made up in containers or small volumes and is likely to deteriorate or be otherwise damaged if exposed, the Central Government or the officer empowered shall take two of the said samples without opening the containers and suitably seal and mark the same. The Central Government or the officer empowered shall dispose of the samples so https://hcservices.ecourts.gov.in/hcservices/ collected as follows :- (i) one portion shall be handed over to the person from whom the sample is taken under acknowledgement; and (ii) the other portion shall be sent forthwith to the environmental laboratory for analysis." 13. At the outset it is to be stated that the petitioner has raised this contention for the first time by filing the writ petition and further the petitioner has not refuted the procedure of taking samples by the Authority at any stage before passing of the award, much less in the reply to the show cause notice dated 20.3.2009. 14. In order to appreciate the contention raised by the Senior Counsel regarding following the procedure laid down in Rule 6, we have perused the materials on record. In the reply filed on behalf of the petitioner dated 16.4.2009, the petitioner has raised several grounds disputing the liability to pay any further compensation, but no where it has mentioned about the lack of procedure in taking samples. After receipt of the reply, the first respondent Authority by its letter dated 11.05.2009, has informed the petitioner as under :- "With reference to the above hearing in the W.P.No.23291 of 2006 Respondent (AISHMA) requested the Authority to furnish the details of the beneficiaries list, including names and survey number of the well used to irrigate the lands in affected villages of Vellore district. Hereby the list of affected individuals and the survey number of well used to irrigate the lands is prepared by Authority based on the revenue records, in this totally 1377 wells were scrutinized for the award, 819 wells out of 1377 wells was identified as partly covered in original award (dated 07/03/2001) and the award sanctioned based on the older TDS recorded in original award, and for the remaining wells the field survey was conducted by the Authority, and 558 wells were identified as affected wells and TDS is recorded in the field for newly inspected 558 wells. Hereby the list of 1377 affected individuals has been prepared. After paying the documentation charges of Rs 5 per page total of 690 Rs. for 138 pages, the list will made available for your ready references." 15. A reading of the aforesaid letter would show that in view of the request made to furnish the details of the beneficiaries, including names and survey number of well and the TDS recorded, such list was made ready and the petitioner was informed accordingly. Thereafter, the Authority by communication dated 16.6.2009 had enclosed a list of individual wise liability tentatively determined https://hcservices.ecourts.gov.in/hcservices/ in respect of polluting industries. The petitioner on receipt of the said communication, by reply dated 3.8.2009 has sought for clarification whether any orders had been passed by the Authority pursuant to their submissions on the issue of compensation and whether individual letters to tanners of June, 2009 are to be treated as individual show cause notice. In the reply there is no whisper about the taking of any samples or receipt of the list of 1377 affected individuals with all particulars. Even after receipt of the show cause notice they could have moved the Authority for permission for cross-examination. Their silence in this regard coupled with the previous non-participation in the field surveys despite due notice to them, betrays the bonafides of their charge. In the award it is stated that the exercises were carried out with due care and caution with the authenticity of attestation by revenue officials and photographic pictures taken during the processes. It is further indicated that the methodology adopted in the earlier award was adopted in passing the present impugned award. In the absence of any challenge before passing of the award, it has to be assumed that the samples were taken as per the procedure laid down in the Rules. Taking into consideration all the aforesaid aspects, we do not find any merit in the contention raised by the learned Senior Counsel regarding the procedure laid down in Rule 6 of the Environment (Protection) Rules, 1986, and accordingly the said contention is rejected. 16. For the aforesaid reasons, we do not find any infirmity or illegality in the report and award passed by the first respondent Authority dated 24.8.2009 and the writ petition is liable to be dismissed. Accordingly, the writ petition is dismissed. No costs. Consequently, the connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar dpk To The Member Secretary, Loss of Ecology (Prevention and Payment of Compensation) Authority, No.298, Peters Road, Royapet, Chennai 600 086. + 1 c.c. to M/s. T. Mohan, Advocate. S.R.No.7696. + 1 c.c. to M/s. G.R. Associates. S.R.No.7631. + 1 c.c. to The Government Pleader. S.R.No.7900. W.P.No.22683 of 2009 SSK (CO) GSK 11.02.2010. https://hcservices.ecourts.gov.in/hcservices/