TMI Blog2017 (10) TMI 1546X X X X Extracts X X X X X X X X Extracts X X X X ..... g Committee was therefore not a mere fact finding body constituted by the Apex Court for ascertaining the factual scenario with respect to pollution. On the contrary, it was intended to effectuate and implement the control measures with the object of controlling the menace of pollution, effectively. Rehabilitation of the affected populace was also an aspect that was covered by Ext.P2 as well as Ext.R2(n) orders. The contention that the Monitoring Committee had exceeded its authority in directing the Pollution Control Board to implement the project of supplying drinking water to the affected people, cannot be accepted. In view of Ext.R2(n) order of the Supreme Court extracted above, we are also not in a position to entertain the challenge against the action of the Monitoring Committee alleging that it had exceeded its authority. Such a complaint ought to be made before the Apex Court itself. Any specified time limit could be stipulated, restricting such payments. This is for the reason that, going by the reports, the water sources in the area have been contaminated, the wells, ponds and the Periyar River have become polluted. The community has been deprived of all its natural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gulatory Board. 3. While so, as per an order passed by the Supreme Court in W.P(C) No. 657 of 1995, a Committee called the Supreme Court Monitoring Committee on Hazardous Wastes ( Monitoring Committee for short) was constituted for the purpose of ensuring that the directions issued by the Supreme Court from time to time in the said writ petition were implemented effectively and in a timely manner. The Monitoring Committee was given the liberty to co-opt a representative of the State Government or the State Pollution Control Board or any other person or authority as member of the said Committee, as deemed fit. The Monitoring Committee was to file quarterly reports before the Apex Court. The order appointing the Monitoring Committee is evidenced in these proceedings by Ext.P2 4. Pursuant to Ext.P2 order, the Monitoring Committee conducted a number of visits to the State of Kerala, inspected various localities and submitted reports to the Court, as evidenced by Exts. P3, P4 and P5. The Monitoring Committee assessed the situation in Eloor, Udyogamandal and surrounding areas where large number of industries are located and assessed the gravity of the pollution that the residents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant had filed the writ petition. 6. According to the appellant, the industrial wastes generated by it come within the general definition of radioactive wastes under the Atomic Energy Act. Such wastes have been specifically excluded from the purview of the HW Rules. The Monitoring Committee was constituted for the purpose of monitoring the discharge of wastes under the HW Rules. Therefore, the Monitoring Committee has no authority to initiate any action in relation to the wastes discharged by the appellant. The proceedings Ext.P12 were issued by the 2 respondent in compliance with the order issued by the Monitoring Committee. Therefore, this is a clear case of the statutory authority, acting under dictation and without any application of mind. The Monitoring Committee had no power to issue the said direction to the 2 respondent. The 2 respondent has no power to compel the appellant to bear the costs of establishing the water supply system and the recurring charges for supply of water to the local residents. Therefore, they sought for the issue of appropriate orders, quashing Ext.P12 7. The writ petition was contested by the respondents. A counter affidavit was filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Monitoring Committee has in its report, Ext.P5 found that, the contamination of Kuzhikandam Thodu and nearby areas was caused by effluents from the FACT, IRE (appellant), HIL and Merchem. Therefore, the cost of clean up would have to be recovered from them. The said finding has not been challenged by the appellant. It was as part of implementation of the directions of the Monitoring Committee to clean up the river that the impugned order Ext.P5 has also been issued. The contention that, the appellant does not discharge any effluents to Kuzhikandam Thodu was disputed. According to the 2 respondent, the appellant discharges effluents to the Periyar River. Waste water from their Unit flows into the Kuzhikandam Thodu. Since the same is discharged into the midstream of Periyar as per the permission obtained by them years back, it is also not possible to monitor the discharge, it was contended. It was also contended that since the Monitoring Committee was appointed by the Supreme Court, only the said court could entertain a challenge against the action of the said Committee. 8. The 3rd respondent, a local resident and activist who got himself impleaded also contested the writ pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Monitoring Committee. Therefore, this is a clear case of the statutory authority acting under dictation, it is contended. The initial demand for sharing the infrastructural cost was accepted by the appellant recognizing their Corporate Social Responsibility. However, by Ext.P12 the recurring costs for supply of drinking water has also been imposed on them. Though the charges were demanded initially only for a period of two years, the payments are continuing till date. According to the learned counsel, the appellants cannot be compelled to continue the payments indefinitely. The counsel also places reliance on decisions of the Apex Court to support his contentions. 11. Adv. T. Navin, who appears for the 2 respondent, points out on the other hand that rehabilitation of the residents affected by the pollution has been directed by the Supreme Court in Ext.P2 order. The Monitoring Committee had visited the area in August, 2004. Water supply to the affected communities had been ordered by the Committee in Ext.P3 In Ext. P5 report also, the Monitoring Committee has directed recovery from the four industrial units including the appellant. According to the learned counsel, just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r industrial area, particularly to the appellant herein, to discharge effluents from their factories into the Periyar river. The industrial department has also not given any such permission. The power to regulate all matters relating to the discharge of solid, liquid and gaseous wastes as well as noise is vested in the 2 respondent. The 2 respondent has issued a consent, Annexure R2(a). According to the learned Government Pleader also, there are no grounds to interfere with the judgment appealed against. 14. Heard. The Monitoring Committee in this case was set up by the Supreme Court as per an order dated 14.10.2003 in W.P(Civil) No. 657 of 1995, a copy of which is evidenced herein by Ext.P2 Paragraph 68 of the order reads as under: 68. We constitute a Monitoring Committee comprising of the aforesaid members as also Dr. Claude Alvares, NGO and Dr. D.B Boratkar. This Committee shall oversee that the direction of this Court are implemented timely. It would also oversee that the aspects to which the Ministry has agreed are implemented in Letter and spirit and without any laxity or delay in the matter. It would be open to the Monitoring Committee to co-opt a representative of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of persons affected and to ensure that the above companies install a piped water supply to the residences of all the persons so affected. Action plan for compliance of this direction shall be submitted within two weeks. Action shall be completed within six months. 16. On the basis of the above direction, a Local Area Environment Committee (LAEC for short) was initially set up inter alia, for the purpose of conducting an environment audit, to visit each industrial unit and to ensure that the control measures were properly implemented, to ensure that a proper material balance was maintained by the various chemicals and wastes generated and other measures to monitor the activities of the industrial units. In the report of its second visit on October 13 and 14, 2004, evidenced herein by Ext.P4, the Committee found that the LAEC had stopped functioning and therefore it was directed to be reconstituted. In Ext.P4 also, the Monitoring Committee has noticed that the Periyar River bed had been turned into an illegal hazardous waste dump by various industries in the area with the full knowledge and acquiescence of the 2 respondent. Therefore, the LAEC was directed to function in additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 order, has been an escalation in pollution at various parts of the country. It was taking note of the said alarming situation that the Monitoring Committee was directed to submit quarterly reports to the Apex Court itself, with a direction that no authority in the country shall entertain a challenge against any action of the Monitoring Committee. The Monitoring Committee was therefore not a mere fact finding body constituted by the Apex Court for ascertaining the factual scenario with respect to pollution. On the contrary, it was intended to effectuate and implement the control measures with the object of controlling the menace of pollution, effectively. Rehabilitation of the affected populace was also an aspect that was covered by Ext.P2 as well as Ext.R2(n) orders. Therefore, the contention that the Monitoring Committee had exceeded its authority in directing the Pollution Control Board to implement the project of supplying drinking water to the affected people, cannot be accepted. In view of Ext.R2(n) order of the Supreme Court extracted above, we are also not in a position to entertain the challenge against the action of the Monitoring Committee alleging that it had exceeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. It 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 latter 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. 20. In o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erated by the appellant being exempt under the said Rules, do not come within the scope of the authority of the Monitoring Committee. According to the appellant, they have obtained Ext.P1, authorization under the Atomic Energy Act. Therefore, there is no justification for the liability imposed on them by Ext.P12 As already noticed above, Annexure R2(a) is a copy of the consent issued to the appellant by the 2 respondent. A perusal of the said consent shows that apart from radioactive wastes, the appellant was also generating hazardous wastes. The quality of the treated effluents shows the presence of a number of hazardous wastes. According to the counter affidavit filed by the 2 respondent, the storm water from the appellant's unit is discharged directly into the river Periyar, which also contains hazardous wastes. Therefore, the appellant cannot be permitted to shirk their responsibility for the pollution of the Periyar river. According to the counter affidavit of the 2 respondent, the appellant is storing the effluent treatment plant sludge in unlined trenches in an area where the water table is high. Therefore, the chances of seepage of contaminated water into the surface wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . They have been deprived of their water sources, as a result of the industrial activity in the area. The industries have been functioning for the past many decades. They are continuing to function to this date. The need of the community for potable drinking water is only legitimate. Therefore, it is necessary that they are supplied with potable drinking water, without any disruption. The industries are carrying on their activities. The appellant's unit has also been working throughout. Therefore, there is no justification for the contention that they shall not be directed to continue the payments. It shall of course be open to the 2 respondent or the Monitoring Committee to review the situation and to modify the directions in Ext.P12 suitably, should there be any need for so doing. There is absolutely no evidence or material before us to justify a conclusion that there has been an improvement in the quality of the environment in the area warranting a relaxation or modification of the said directions. We, therefore, find no infirmity in Ext.P12 or the judgment of the learned Single Judge, warranting an interference therewith. 24. For the above reasons, the appeal fails and i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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