IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04/11/2004 CORAM THE HONOURABLE MR. B. SUBHASHAN REDDY, CHIEF JUSTICE and THE HONOURABLE MR. JUSTICE A. KULASEKARAN W.P. No. 2570 of 2000 and W.P.No. 9139 of 2000 and W.M.P. No. 3964 and 13441 of 2000 Tamil Nadu Pollution Control Board rep. by its Member Secretary 100, Anna Salai Chennai 600 032 ..Petitioner in both WPs -Vs- 1. The State Human Rights Commission Tamil Nadu rep. by its Member Hon'ble R. Rathinasami 35, Thiru-vi-ka Salai ... 1st Respondent in Chennai 600 014 both the WPs 2. Association of Radio and Television Engineering Employees All India Radio rep. by its Unit Secretary ... 2nd Respondent in Tuticorin 628 008 WP No. 2570/2000 3. S.P. Muthuraman President, Tirunelveli District Tamil Manila Congress Youth Wing Tamil Manila Congress Dist Office Vannarapettai ... 2nd Respondent in Tirunelveli 627 003 WP No. 9139/2000 Petitions filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus as stated therein. For Petitioner : Mrs. Rita Chandrasekaran in both the Writ Petitions For Respondents : Mr. V.R. Balasubramanian for R1 in both the Writ Petitions :COMMON ORDER A. Kulasekaran, J) The prayer in WP No. 2570 of 2000 is for a Writ of Certioarified Mandamus to quash the enquiry proceedings in Case No.1444/rrs/99 in pursuance of the impugned order dated 07-12-1999 of the first respondent and direct the first respondent herein not to entertain any complaint or matters relating to 'pollution' in the State of Tamil Nadu. 2. The prayer sought for in WP No. 9139 of 2000 is for a Writ of Certiorarified Mandamus to call for the records and to quash the enquiry proceedings in Case No.1025/RRS/2000 in pursuance of the impugned order dated 17-05-2000 in so far as the petitioner/Board is concerned and direct the first respondent herein not to entertain any such complaint or matters relating to 'pollution' in the State of Tamil Nadu. 3. The case of the second respondent in WP No. 2570 of 2000 is that they have given a complaint to the first respondent herein that M/s. Sterlite Industries Limited, Tuticorin, which is a copper smelter plant, emits sulphur dioxide which settles down in the vicinity of the factory causing air pollution, as a result, the people of the vicinity including the employees of the second respondent are seriously affected. The first respondent, on the complaint of the second respondent felt it necessary to hold enquiry and issued the impugned notice. The facts involved in the case is that W.P. Nos. 15501 to 15503/1996, 5789/1999 and 16861 of 1998 were filed seeking common relief of quashing the clearance given by the Ministry of Environment and Forest and Tamil Nadu State Environment Committee. When the said writ petitions are pending, the first respondent has issued the impugned notice dated 07-12-1999 to the writ petitioner alleging pollution caused by the Sterlite Industries and for its closure. 4. The case of the second respondent in WP No. 9139 of 2000 is that it has given a complaint to the first respondent stating that M/s. India Cements Limited is causing air pollution which affects the public and also agricultural activities in the locality. On the said complaint, the first respondent felt it necessary to hold an enquiry and issued the impugned notice to the petitioner. The facts involved in this case is in respect of alleged violation caused by India Cements Limited, Shankar Nagar, Tirunelveli, writ Petitions are filed in WP No. 7822 and 13508 of 1998 seeking direction to prevent the smoke emanated from the said factory and to assess the damages caused to the residents due to the said pollution. When the said writ petitions are pending, the first respondent issued notice dated 17-05-2000 to the petitioner alleging pollution caused by India Cements Limited and to assess the alleged damages caused to the residents. 5. The common grounds taken in the writ petitions by the petitioners is while the writ petitions are pending in respect of the same subject matter before the Green bench of this Court, the first respondent is prohibited under Regulations (g) of Regulations 9 of State Human Rights (TN) (Procedure) Regulations, 1997. The enquiry proceedings initiated by the first respondent would lead to multiplicity of cases and encourage unnecessary and unlimited litigation. It is not proper for the first respondent Commission to entertain the complaint against the Tamil Nadu Pollution Control Board in respect of matters relating to pollution, which falls under the provisions of Water Act, Air Act and Environment (Protection) Act. Any such action by the first respondent will defeat the very purpose of the aims and objects of the various Acts, under which the Board functions and exercising its statutory powers and it is an appellate authority constituted under the respective Acts and Rules. Under Section 23 of the Environment Act, 1 986, the Central Government has delegated powers vested in it under Section 5 of the Act to the Tamil Nadu Government by notification of the Ministry of Environment and Forest dated 10-02-1988, in and by the said notification, the State Government can also issue directions in writing to any persons, officers or any authority for closure or prohibition or regulation of any industrial operation or process and such person shall be bound to comply with such conditions. The Central Government, under the Environment (Protection) Act constituted the Loss of Ecology (Prevention and payment of Compensation) authority for the State of Tamil Nadu, which is vested powers under Section 5 of the Environment Act and also assess loss to the ecology and environment for the affected areas and identify the individual and families which suffered because of the pollution, while so, if any person is aggrieved in respect of any pollution, they can seek the remedy with the said authority and there is no need to entertain any complaint by the first respondent. Section 16 of Protection of Human Rights Act contemplates that persons likely to be prejudicially affected to be heard. If on any such of the enquiry, the Commission considers it necessary to enquire into the conduct of any person; or is of the opinion that the reputation of any person is likely to be prejudically affected by the enquiry, it shall give to the person reasonable opportunity of being heard in the enquiry and to produce evidence in his defence  provided that nothing in this section shall apply where the credit of the witness is being impeached. By virtue of the above provisions, the first respondent ought not have treated the petitioner as respondent in the case before it, in the absence of any allegation against the petitioner in the complaint filed by the second respondent in respect of either its conduct or reputation. 6. The first respondent/Commission has filed its counter in WP No. 2 570 of 2000 stating that the Commission is not aware of the case pending before this Court; that the violations committed by third parties namely M/s. Sterlite Industries Limited within a period of one year prior to 26-04-1999; that the subject matter pending before the Commission do not appear to be the subject matter of the case pending before this Court; no documents were produced by the petitioner to show that the subject matter of the case pending before this Court is the subject matter for which the Commission has ordered notice under Section 16 of the Protection of Human Rights Act; that if there is a complaint regarding deprivation of human right suffered by any person due to pollution or lack of safety measures and clean environment, the Commission is empowered to hold an enquiry on such complaint; that the averment that the Commission is not a civil Court and the Environment (Protection) Act does not exclude the jurisdiction of the Commission; that under Section 10 (2) of the Protection of Human Rights Act, the Commission is empowered to regulate its own procedure read with Section 29 and the Commission framed its own regulation; that the Regulation 9 (g) provides that the Commission shall dismiss in limine any complaint which are subjudice in a Court or Tribunal, but the subject matter in dispute are not subjudice in a Court or Tribunal; Section 1 2 (a) of Protection of Human Rights Act empowers the Commission to inquire suo motu or on a petition presented to it by a victim or any person on his behalf, into the complaint of violation of human rights or abatement thereof or negligence in the prevention of such violation by a public servant; that the petitioner herein is a public servant and there is negligence on the part of the petitioner herein in the prevention of such violation, hence, it had rightly proceeded against the petitioner; that no immunity can be conferred upon the petitioner or its staff; that after receipt of the complaint from the complainants, the Commission ordered notice to the petitioner and the petitioner also appeared in person and later filed written statement; that before considering the case on merits, the petitioner has approached this Court; that the Commission has never rejected the objections of the petitioner and prayed for dismissal of the writ petitions. 7. Article 21 of the Constitution of India guarantees the life with dignity. This article worded with simple language, its scope has been extended to life, liberty, education, health etc., since it is the subject matter in large number of litigation. It prohibits deprivation of life or personal liberty except due process of law. It essentially deals with personal liberty, it is expanded to cover environment and public health. It concern about 'life' when deals with environment; and concern about 'liberty' when deals with human rights. 8. Human right means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India. Human Rights are those minimal rights, which every individual must have against the State or other public authority by virtue of his/ her being a member of the human family, irrespective of any other consideration. The first documentary used the word human right is found in the charter of the United Nations which was adopted at Sanfransisco on June 25, 1945 and ratified by majority of signatories in October of that year. The first concrete step by way of formulating various human rights was taken by United Nations General Assembly in December 1948 by adopting the Universal Declaration of Human Rights. The Universal Declaration has operated merely as statement of ideals which was not of the nature of legal binding covenants and no machinery was provided for its enforcement. A deficiency was removed by United Nations General Assembly by adopting two covenants in December 1956 which are the covenants of (i) civil and human rights and (ii) economic, social and secular rights. Thereafter, the two covenants came into force in December 1976. The history given supra shows the emergence of human rights. 9. In India, the Honourable Supreme Court has drawn inspiration from the international charters with the result, Indian Courts attempted to interpret statutes to conform to Rules of International Law or convention to which India is a party. The National Human Rights Commission is an expert body in itself. It is also a body sui jurist created under the Protection of Human Rights Act, 1993, for examining and investigating the question of complaints relating to violation of human rights as also the negligence on the part of the public servants in preventing such violation Paramjit Vs. State of Punjab  AIR 1999 SC 340. The State Commission is also endowed with similar powers. 10. The relevant provisions of the Protection of Human Rights Act, 1993 runs as follows:- Section 2 (1) (d)  Human rights means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India. Section 12. Functions of the Commission  The Commission shall perform all or any of the following functions namely- (a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, into complaint of- (i) violation of human rights or abetment thereof; or (ii) negligence in the prevention of such violation by a public servant; (b) intervene in any proceeding involving any allegation of violation of human rights pending before a Court with the approval of such Court. (c) visit, under intimation to the State Government, any jail or any other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection to study the living conditions of the inmates and make recommendations thereon; (d) review the safeguards provided by or under the constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation; (e) review the factors, including acts of terrorism that inhibit the enjoyment of human rights and recommend appropriate remedial measures (f) study treaties and other international instruments on human rights and make recommendations for their effective implementation (g) undertake and promote research in the field of human rights (h) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means; (i) encourage the efforts of non-governmental organisations and institutions working in the field of human rights; (j) such other functions as it may consider necessary for the promotion of human rights. Section 13. Powers relating to inquiries  (1) The Commission shall, while inquiring into complaints under this Act, have all the powers of a Civil Court trying a suit under the Code of Civil Procedure, 190 8 (5 of 1908), and in particular in respect of the following matters, namely; (a) summoning and enforcing the attendance of witnesses and examining them on oath; (b) discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any Court or Office; (e) issuing Commissions for the examination of witnesses or documents; (f) any other matter which may be prescribed. (2) The Commission shall have power to require any person, subject to any privilege which may be claimed by that person under law (45 of 1860) for the time being in force, to furnish information on such points or matters as, in the opinion of the Commission, may be useful for, or relevant to, the subject matter of the inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of Section 176 and Section 177 of the Indian Penal Code. (3) The Commission or any other officer, not below the rank of a Gazetted Officer, specially authorised in this behalf by the Commission may enter any building or place where the Commission has reason to believe that any document relating to the subject matter of the enquiry may be found, and may seize any such document or take extracts or copies therefrom, subject to the provisions of Section 100 of the Code of Criminal Procedure, 1973, in so far as, it may be applicable. (4) The Commission shall be deemed to be a civil Court and when any offence as is described in Section 175, Section 178, Section 179, Section 180 or Section 228 of the Indian Penal Code is committed in the view or presence of the Commission, the Commission may, after recording the facts constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1973, forward the case to a Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if, the case has been forwarded to him under Section 346 of the Code of Criminal Procedure, 1973. (5) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, and for the purposes of Section 196 of the Indian Penal Code, and the Commission shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. Section 14 Investigation  (1) The Commission may, for the purpose of conducting any investigation pertaining to the inquiry, utilise the services of any officer or investigating agency of the Central Government or State Government with the concurrence of the Central Government or the State Government, as the case may be. (2) For the purpose of investigating into any matter pertaining to the inquiry, any officer or agency whose services are utilised under sub-section (1) may, subject to the direction and control of the Commission - (a) summon and enforce the attendance of any person and examine him; (b) require the discovery and production of any document; and (c) requisitioning any public record or copy therefrom from any office (3) The provisions of Section 15 shall apply in relation to any statement made by a person before any officer or agency whose services are utilised under sub-section (1) as they apply in relation to any statement made by a person in the course of giving evidence before the Commission. (4) The officer or agency whose services are utilised under subsection (1) shall investigate into any matter pertaining to the inquiry and submit a report thereon to the Commission within such period as may be specified by the Commission in this behalf. (5) The Commission shall satisfy itself about the correctness of the facts stated and the conclusion, if any, arrived at in the report submitted to it under sub-section (4) and for this purpose the Commission may make such inquiry (including the examination of the person or persons who conducted or assisted in the investigation) as it thinks fit. Section 16. Persons likely to be prejudicially affected to be heard. If, at any stage of the inquiry, the Commission - (a) considers it necessary to enquire into the conduct of any person; or (b) is of the opinion that the reputation of any person is likely to be prejudically affected by the enquiry, it shall give to the person reasonable opportunity of being heard in the enquiry and to produce evidence in his defence provided that nothing in this section shall apply where the credit of the witness is being impeached. Section 17. Inquiry into Complaints:- The Commission, while inquiring into the complaints of violations of human rights may - (i) call for information or report from the Central Government or any State Government or any other authority or organisation subordinate thereto within such time as may be specified by it: Provided that (a) if the information or report is not received within the time stipulated by the Commission, it may proceed to inquire into the complaint on its own; (b) if, on receipt of information or report, the Commission is satisfied either that no further enquiry is required or that the required action has been initiated or taken by the concerned Government or authority, it may not proceed with the complaint and inform the complainant accordingly. Section 21 - Section 36. Matters not subject to jurisdiction of the Commission - (1) The Commission shall not inquire into any matter which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force (ii) The Commission or the State Commission shall not inquire into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed. Regulation 8 of National Human Rights Commissions (Procedures) Regulations, 1997:- 8. General.- (a) Complaints may be made to the Commission in English or Tamil or Hindi or in any of the languages included in the Eighth Schedule of the Constitution. (b) No fee shall be chargeable on complaints (c) The complaints should disclose a complete picture of the matter complained against. The Commission may, if necessary call for further information and may direct affidavits to be filed in support of the allegations, whenever considered necessary. 11. Environment protection is the watchword of the last 20th Century, however, during the last two decades, there has been an increasing concern for an awareness towards environmental protection at the domestic level as also international. The Honourable Supreme Court, while giving due importance to the protection of environmental and having regard to the grave consequences of pollution of water and air and need for protecting and improving the natural environment, which construes to be one of the fundamental duties under the statutes had expressed the view in M.C. Mehta Vs.Union of India and others  AIR 1988 SC 1115 that it is the duty of the Central Government to direct all the educational institutions throughout India to teach at least one hour in a week lessons relating to protection and improvement of natural environment. Article 48A of the Constitution provides for protection and improvement of environment and also safeguarding Forest and wild life. Article 15-A of the Constitution provides interalia that it shall be the duty of every Citizen of India to protect and improve and protect natural environment and to have compassion with living creatures. 12. In India, we have sufficient legislations on the subject in the form of The Environment (Protection) Act, 1986, Water (Prevention and Control) Act, 1974 and Air (Prevention and Control) Act 1981. The Honourable Supreme Court, while interpreting Article 21 of the Constitution (Protection for life and personal liberty) has held in B. Vadhera Vs. Union of India  1996 7 SCC 594 that right to protection and water free from pollution falls within Article 21. 13. The relevant provisions of the Environment (Protection) Act, 198 6. Section 2. Definitions  In this Act, unless the context otherwise requires - (a) 'environment' includes water, air and land and the interrelationship which exist among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property; (b) 'environment pollutant' means any solid, liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment; Section 10 : Powers of entry and inspection. - (1) Subject to the provisions of this Section, any person empowered by the Central Government in this behalf shall have a right to enter, at all reasonable times with such assistance as he considers necessary, any place. (a) for the purpose of performing any of the functions of the Central Government entrusted to him: (b) for the purpose of determining whether and if so in what manner, any such functions are to be performed or whether any provisions of this Act or the rules made thereunder or any notice, order, direction or authorisation served, made, given or granted under this Act is being or has been complied with: (c) for the purpose of examining and testing any equipment, industrial plant, record, register, document or any other material object or for conducting a search of any building in which he has reason to believe that an offence under this Act or the rules made thereunder has been or is being or is about to be committee and for seizing any such equipment, industrial plan, record, register, document or other material object if he has reasons to believe that it may furnish evidence of the commission of an offence punishable under this Act or the rules made thereunder or that such seizure is necessary to prevent or mitigate environmental pollution. (2) Every person carrying on any industry, operation or process or handling any hazardous substance shall be bound to render all assistance to the person empowered by the Central Government under subsection (1) for carrying out the functions under that sub-section and if he fails