Case: M.C. Mehta  Vs. Union of India (UOI) and Ors

that all the industries would accept gas as an industrial-fuel. The industries operating in TTZ which are given gas connections to run the industries need not relocate. The whole purpose is to stop air pollution by banishing coke/coal from TTZ. 29. This Court in Vellore Citizens Welfare Forum v. Union of India and Ors. AIR1996SC2715 , has defined the precautionary principle and the polluter pays principle as under: 11. ...We are, however, of the view that the Precautionary Principle and The Polluter Pays principle are essential features of Sustainable Development. 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 sued 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. 12. The Polluter Pays principle has been held to be a sound principle by this Court in Indian Council for Enviro-Legal Action v. Union of India [1996]2SCR503 . 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 in this country. The Court ruled 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 polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology. 13. 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. Articles 47 48A, and 51A(g) of the Constitution are as under: 47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.-The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health among its primary duties and in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. 48A. Protection and improvement of environment and safeguarding of forest and wild life.-The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. 51A(g). To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. Apart from the constitutional mandate to protect and improve the environment 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. 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. We shall deal with the Environment Act in the later part of this judgment. 14. In view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country. 30. Based on the reports of various technical authorities mentioned in this judgment, we have already reached the finding that the emissions generated by the coke/coal consuming industries are air-pollutants and have damaging effect on the Taj and the people living in the TTZ. The atmospheric pollution in TTZ has to be eliminated at any cost. Not even one per cent chance can be taken when-human life apart-the preservation of a prestigious monument like the Taj is involved. In any case, in view of the precautionary principle as defined by this Court, the environmental measures must anticipate, prevent and attack the causes of environmental degradation. The onus of proof is on an industry to show that its operation with the aid of coke/coal is environmentally benign. It is, rather, proved beyond doubt that the emissions generated by the use of coke/coal by the industries in TTZ are the main polluters of the ambient air.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]16. The NEERI submitted a Technical Report dated March 7, 1994 pertaining to Issues Associated with Fuel Supply Alternatives for Industries in Agra-Mathura Region. Paras 2.4.1 and para 3 of the Report are as under:2.4 Safety Requirements2.4.1. NG : The use of NG involves the defining of No Gas Zone for safe distribution. The new sites in Agra and Firozabad industries being identified by the Government of Uttar Pradesh shall minimise this hazard as the industrial estates shall be suitably designed for NG distribution.The new industrial sites should preferably be out of the Taj Trapezium. The incentives for industries to shift to new industrial estates need to be established to ensure speedy implementation.xxx xxx xxx3.0 SummaryThe various issues raised in this report pertaining to the fuel supply alternatives to the industries in Agra-Firozabad region and the Mathura Refinery, can be summarized as:-Need for relocation of industries.-Availability of cleaner fuel (present and future)-Environmental benefits from alternate fuels-Safety considerationsThe recommendations are summarized hereunder:-Shifting of small-scale polluting industries outside the Taj Trapezium on industrial estate sites to be identified by the Government of Uttar Pradesh;-Provision of natural gas to the industries in Agra-Mathura region and Mathura Refinery.18. The Report clearly shows that the level of Suspended Particulate Matters (SPM) in the Taj Mahal area is high. The relevant part of the Report in this respect is as under:S.P.M. (Period 1981-1993)i. The level of SPM at Taj Mahal is generally quite high, the monthly mean values being above 200 micrograms/cubic metre for all the months during 1981-1985 except for the monsoon months.ii. There is an increasing trend in the monthly mean SPM concentrations from about 380 micrograms/cubic metre to 620 micrograms/cubic metre during the period 1987-1991, and the trend reverses thereafter till 1993. There is a decrease in monthly mean SPM levels from 620 micrograms/cubic metre in 1991 to about 425 micrograms/cubic metre in 1993.22. The industries in Agra have been dealt in paras 92, 93, 95 and 96 which are as under:92. Industries in Agra and Ferozabad have been asked to install APCD to reduce essentially SPM level in air emissions. UPPCB has the authority to monitor their performance to meet standards outlined for different industries by CPCB, noting their capacities. These regulations should be fully enforced. NEERI has suggested suitable sites in Agra and Ferozabad could be identified and developed as industrial estates with facilities, separated from residential area. If such sites are developed, natural gas supply in the industrial estate would be possible with safety, and the industrial units could be shifted.93. ...There is need for a single authority in such estates to coordinate all maintenance and repair work on electrical supply, telecommunications, water, sewage, drains, roads and construction. Any industrial estate in Agra with natural gas will have to be located at a substantial distance from monuments to ensure full safety.xxx xxx xxx95. When industrial units are relocated, it would be appropriate to modernise technology equipment and buildings. Most of the units will need very substantial financial assistance. The value of the present sites and their future use have to be determined. It would not be desirable to promote residential colonies and commercial establishments in such vacated areas as they may in turn add to the problems of water supply and atmospheric quality by excessive use of energy. Major changes of this nature would need a dear development planning strategy and resources, and will also take several years for implementation.96. There is urgent need for quicker measures which could lead to better environment, especially in the Taj Mahal. For this purpose, it is necessary to effect overall reduction in coal/coke consumption by industries and others in Agra and in Taj Trapezium Zone generally. The present level of consumption of 129 metric tonne per day by industry can be substantially reduced by new technology and by use of LPG and HSD of low sulphur. Stricter standards for emissions may be evolved when such technological and fuel changes are effected. Support for development of modifications in design and operation and demonstration should be provided. Some assistance to industries for adoption of these may be considered after careful examination of the costs and benefits to the industry and to society. All those industries not responding for action for feasible changes and contributing disproportionately to atmospheric pollution have to face action.23. The Taj being a monument on the World Heritage List, the Government of India sought the expert advice through UNESCO on the structural and chemical preservation aspects of the monument. Accordingly, two experts, namely, Dr. Mentrizio Marbeilli and Dr. M. Larze Tabasso visited The Taj Mahal between January 17-30 1987 to study the problems pertaining to the conservation of marble and sand stones in The Taj and recommended remedial measures. According to them, the yellowishness of the marble is due to (a) SPM and (b) dust fall impinging on the surface. Opinions of the Archaeological Survey of India and other scientists annexed to the Varadharajan Report unanimously say that the yellow shadow of the marble on different parts of The Taj including four minarets is mainly due to SPM and the dust fall impinging on the surface. The comments of the Archaeological Survey of India as noticed in Varadharajan Report are as under:On the structural side, The Taj Mahal is in a sound state of preservation and the studies conducted so far also confirm the same. The only threat to the Taj Mahal is from the environmental pollution.The Science wing of the ASI is continuously monitoring the level of suspended particulate matter, sulphur dioxide concentration and sulphation rate. The Studies made in this regard shows that suspended particulate matter level has been found to be higher than the maximum permissible level 100 kg/m3. This has imparted a yellowish appearance on the surface of the Taj Mahal.24. After careful examination of the two Varadharajan Reports (1978 and 1995) and the various NEERI reports placed on record, we are of the view that there is no contradiction between the two sets of reports. In the 1978 Report, Varadharajan found substantial level of air pollution because of sulphur dioxide and SPM in the Agra region. The source, according to the report, was the coal-users including approximately 250 small industries mainly foundries. The excess of SPM was because of the use of coal. The Report specifically recommended in para 5.4 for the relocation of the existing small industries particularly the foundries. The 1995 Varadharajan Report clearly shows that the standard of atmospheric pollution is much higher than the 1981-85 period which according to the Report is also because of heavy traffic and operation of generating sets. NEERI reports have clearly recommended the relocation of the industries from the TTZ.26. The chronology of the orders quoted by us in this judgment shows that this Court took cognizance of this matter in January 1993. There are four NEERI reports, two Varadharajan reports and several reports by the Board. After examining all the reports and taking into consideration other material on the record, we have no hesitation in holding that the industries in TTZ are active contributors to the air pollution in the said area. NEERI and Varadharajan (1978) reports have specifically recommended the relocation of industries from the TTZ. Although the Board has placed on record list of 510 industries which are responsible for air pollution but in view of our order dated April 11, 1994 (quoted above), we are confining this order only to 292 industries located and operating in Agra. These industries are listed hereunder:FOUNDRIES (DISTRICT AGRA)1. M/s. Gulab Rai Chottey2. M/s. Gulab Rai Chottey3. M/s. Krishna Iron4. M/s. B.C. Iron5. M/s. Kajeco6. M/s. National Iron7. M/s. Raj Pattern makers &8. M/s. Miraz Iron9. M/s. Mudgal Iron10. M/s. Prabhat Iron11. M/s. Raghav Engg.12. M/s. Raj Iron Foundry13. M/s. Agrawal Tin Mfg. Co.14. M/s. Moti Lal Agrawal &15. M/s. Anil Metal16. M/s. Shree Durga Laxmi Iron17. M/s. S.S. & Iron18. M/s. Randhir Chand Khoob Chand Iron Foundry Masta Ki19. M/s. Shree Ram Metal20. M/s. Indian Iron21. M/s. Suresh Iron Foundary & Engg. Works Langre Ki22. M/s. Sureshe Pass Road, Near Water23. M/s. Mahajan Iron24. M/s. Taj Iron26. M/s. Laxmi27. M/s. Shree Durga Bhagwati Industries & Iron28. M/s. India Casting29. M/s. India Iron30. Shanker Iron31. Jagannath Dewan Chandra32. Agarwal Wire33. Super Chem.34. Uttam Lah35. Mahajan Ispat37. Satya Deep38. Arbaria Iron39. Allied Iron & Steel41. Kalyan Steel Products (P)46. Satya Ind.47. A.R. Iron48. S.A. Iron49. S.K. Iron Foundary & Engg. Co.,50. S.K. Iron Foundary & Engg. Co.,52. Golden Engg.53. Paliwal Iron Foundary & Metal54. Jain Foundary & Engg.56. Oswal Iron58. S.S. Iron60. Dewan Chand Suraj Prakash61. Parolia Engg.62. S.B. Iron64. Sarla & Co.65. Shree Ram Iron Foundary &66. Jagdish Industrial67. R.K. Engineers &68. Goyal Iron & Steel69. R.R. Iron71. Bansal Iron72. Goyal Metal73. Fatehchand Sehgal &74. Adesh Kumar75. Deepak Chemical77. Prakash Iron78. Ravi Agricultural80. Manik Chand Garg &81. Bombay Engg. & Moulding82. Gopal Iron83. Sterling Machine