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TMI Blog1996 (12) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... , Deba Prasad Mukherjee, Sanjoy Ghose, Rathin Das, S.N. Mathur, E.C. Agarwala, S.K. Verma, A.K. Jha, S.R. Bhat, Mukul Mudgal, Parijat Sinha, R.C. Verma, Arvind Minocha, Kailash Vasdev, Vinoo Bhagat, S.K. Dhingra, Praveen Kumar, S.R. Setia, Ashok Grover, Subodh Markandeya, P. Mitra, K.C. Dua, Pramod Swarup, S.L. Aneja, A.K. Gupta, V.B. Saharya, H.K. Puri, Madhu Sikri, Devendra Singh, Sunil Jain, A.K. Sinha, P.P. Singh and Rajiv Dutta, Advs. JUDGMENT Kuldip Singh, J. 1. This petition - public interest - under Article 32 of the Constitution of India was initially directed against the tanneries located in the city of Kanpur. This Court by the order dated September 22, 1987 [1988]1SCR279 (Kanpur tanneries) issued various directions in relation to the Kanpur tanneries. While monitoring the said directions, the scope of the petition was enlarged and the industries located in various cities on the bank of river Ganga were called upon to stop discharging untreated effluent into the river. In this judgment we are concerned with the tanneries located at Tangra, Tiljola, Topsia and Pagla Danga the four adjoining areas in the eastern fringe of the city of Calcutta (the Calcutta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. The State Government by way of an application sought extension of time for the shifting of the Calcutta tanneries. This Court considered the application on August 13, 1993 and passed the following order: The State of West Bengal has moved an application for extension of time for the shifting of over 500 tanneries functioning on the bank of the river Ganges. This Court by its order dated February 19, 1993 gave three months time to the State of West Bengal to take appropriate steps. The relevant part of the order is as under: As regards the industries in Group 'D' Part II of Annexure 'A', the State Government is said to be taking steps for shifting these industries from the place where they are presently located to another place and to erect a common effluent plant for them in the new place. In that view of the matter, the State of West Bengal shall take appropriate steps within a period of three months. We see no ground to grant 3 years time to the State of West Bengal. We direct the West Bengal Pollution Control Board to publish a general notice in a Daily paper which is popular in the said area consecutively for 3 days directing the tanneries to shif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that adequate space is not available in Tiljala, Tangra and Topsia area for construction of Common Effluent Treatment Plant. In this connection it can be mentioned that Tanneries situated at Tiljala, Tangra and Topsia area are operating for a considerable period of time with no regard to environment pollution control. After the enactment of the Water (Prevention Control of Pollution) Act, 1974 in the State of West Bengal, tanneries of the said locality never applied for consent to the State Pollution Control Board. Only in the year 1989, more than one hundred tanneries applied for consent to the State Board after long persuasion. Considering their practical problem, State Board issued consent under the Water (Prevention and Control of Pollution) Act, 1974, to tanneries for six months only in the year 1989 with a condition that within the validity period of consent i.e. within 6 (six) months, the said tanneries will construct primary effluent treatment plant and submit a scheme of secondary effluent treatment plant. But unfortunately none of the tanneries situated in the said area constructed or have taken any steps for construction of effluent treatment plant. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sists of 19 members including the Minister Incharge, Cottage and Small Scale Industries, Minister Incharge, Sunderbad Development Board, Secretary, Cottage and Small Scale Industries, Secretary, Commerce and Industries Department, Secretary to the Chief Minister of West Bengal, the Secretary, Irrigation and Waterways Department, Secretary, Environment Department, Secretary, Public Health Engineering and various other highly placed officers connected with the project. Thereafter the Deputy Secretary to the Government of West Bengal in the Department of Land and Land Revenue addressed a letter dated July 13, 1993 to the Collector of South 24 Parganas informing him that a decision has been taken on the government level to acquire the land measuring 507.27 acres in mouzas Karaldanga and others, P.S. Bhangor in the District of South 24 Parganas for the integrated leather complex under the provisions of the West Bengal Land Requisition and Acquisition Act 1948 (the Act) as a special case. By another letter dated August 23, 1993, the Governor of West Bengal has accorded sanction of ₹ 60 lacs for meeting the acquisition expenses towards acquisition of land measuring 507.27 acres, und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the design and estimate are yet to be received. We are of the view that the project is not being executed in accordance with the time schedule directed by this Court. We request and direct Mr. Probir Sengupta, Minister Incharge, Cottage and Small Industries to file an affidavit in this regard within two weeks explaining the progress in the project and also the reasons, if any, why the time schedule fixed by this Court is not being followed. We make it clear that the affidavit should be filed in this Court on or before 15.3.1994. We further direct the Minister Incharge to depute a responsible officer to be present in this Court on the date when we take up the affidavit for consideration. 6. Pursuant to the above quoted order of this Court, Probir Sen Gupta, Minister Incharge, Department of Cottage and Small Scale Industries, Government of West Bengal filed affidavit in his capacity as the Chairman of Monitoring Committee set up by State Government by the notification dated July 28, 1992 to monitor the new integrated leather complex. The affidavit stated as under: About 1,000 acres of land has already been acquired and possession taken for setting up the Calcutta Leather Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Small Scale Industries, Government of West Bengal, and Mr. Jyotirmoy Ghosh, Joint Secretary, Department of Cottage and Small Scale Industries, Government of West Bengal to show cause why contempt proceedings be not instituted against them. Meanwhile, we give them opportunity to file further affidavit showing compliance, if any, of this Court's orders made by the State of West Bengal. 8. This Court on September 9, 1994 considered the affidavits filed by Probir Sen Gupta, Minister Incharge and by Jyotirmoy Ghosh, Joint Secretary respectively of the State of West Bengal. After hearing Mr. N.N. Gooptu, learned Advocate General, State of West Bengal, this Court passed the following order: We are prima facie satisfied that there has been no effort on the part of the West Bengal Govt. to comply with the directions given by this Court. Despite our finding, we restrain ourselves and refrain from issuing contempt notice to the Minister and the Joint Secretary at this stage. We reiterate our earlier direction given on April 15, 1994 and expect the State Govt. to comply with the same fully within a period of 8 weeks from today. During the course of arguments, we have given suffici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd February 16, 1995 on behalf of the State of West Bengal in Tanneries Matter. The affidavits be taken on record. We have heard Mr. M.C. Mehta, Mr. Dalip Sinha and Mr. G. Ramaswamy. Mr. Ajoy Sinha has annexed copy of the Notice dated January 10, 1995 served on all the tanneries along with the affidavit dated February 7, 1995. It has been mentioned in para VI of the notice that the estimated cost of the land in the new complex would be ₹ 860.00 per sq. metre. It is further stated that this has been worked out on the basis of the total estimate of the cost, which according to the State Government, comes to about ₹ 130 crores. Mr. G. Ramaswamy, learned senior counsel appearing for the tanneries has informed us that during the course of discussion between the representatives of the tanneries and the Government officials, it was disclosed that cost of the common effluent treatment plant to be set up at the new complex would come to about ₹ 65 crores. The Co-ordinating Committee of the Calcutta Tanneries has, in its letter dated February 15, 1995, informed the Government that they are willing to shift to the new complex. The main objection raised by the tanneries is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 11. Pursuant to the above quoted order of this Court Bhag Singh, Deputy Secretary, Ganga Project Directorate filed affidavit dated April 6, 1995. Para 6 of the affidavit stated as under: It is now submitted that in view of the above observations of the Supreme Court, the Ganga Project Directorate in the Ministry of Environment Forests will prepare a scheme of Common Effluent Treatment Plant hi West Bengal and move for its inclusion in Phase II of Ganga Action Plan. It is further submitted that this scheme like other schemes under Ganga Action Plan Phase II will have to be funded by the center and the State Government on 50:50 basis. The proposal for the scheme will be called from the State Government of West Bengal and after due examination will be submitted for the approval of Expenditure Finance Committee, the Planning Commission and the Cabinet Committee on Economic Affairs. 12. Agreeing with the Ganga Project Directorate that project would be included in the Ganga Action Plan Phase II, this Court on April 7, 1995 passed the following order: We agree with the Ministry of Environment Forests that the project of setting up of Common Effluent Treatment Plant for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... metre. We direct the State of West Bengal to go ahead with the relocation of tanneries from the present sites to the new complex by offering the plots to the individual tanneries at ₹ 600 per sq. metre. The State of West Bengal shall keep in mind the requirements of each of tanneries so far as the area is concerned, but in no case the area lesser than the area already occupied by the tanneries shall be offered to them. The State of West Bengal shall issue public notices offering land in the new complex to the tanneries at ₹ 600 per sq. metre. We direct the West Bengal Pollution Control Board to issue individual notices to all the tanneries informing them that the land is being offered by the State of West Bengal in the new complex. The Board shall further inform the tanneries that all necessary amenities and facilities necessary for setting up of tanneries in the new complex, shall be provided. The Board shall indicate in the notices that the offer of the State Government for purchase of plots in the new complex shall be accepted within two weeks of the receipt of the notices. We make it clear that the tanneries who fail to avail the opportunity offered by the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emises. Learned Counsel further contends that after the tanneries are re-located, the residence part of the premises may be permitted to remain with them. This matter shall be examined at a later stage. Meanwhile, we direct the Labour Commissioner Calcutta to depute inspectors to have a survey of the area and find out as to how many tanneries-owners are actually residing within the tannery premises and file a report in this case. The report shall also indicate the actual area occupied for the purpose of residence. 14. On May 10, 1995 Mr. Ghosh, learned Counsel appearing for the Calcutta tanneries sought extension of the time for depositing 25% of the price of the land. The amount was to be deposited by May 15, 1995. The time was extended upto May 31, 1995. This Court on July 14, 1995 passed the following order: Pursuant to this Court's order dated February 20, 1995 April 7, 1995, April 21, 1995 and May 10, 1995, State of West Bengal was required to file a report in this Court giving the progress made in this respect. The detailed report has not as yet been placed on record. We direct the State Government through the Advocate General, who is present in Court to file a deta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 5, 1995 when this Court passed the following order: The tanners in the city of Calcutta are primarily located in four areas called Tangra, Tiljala, Tapsia, Pagla Danga. Mr. Shanti Bhushan, learned Counsel appearing for about 208 tanneries situated in Tangra has invited our attention to a project for setting up of common ETP which the said tanners have got prepared from KROFTA Engineering Ltd., Chandigarh. It is stated that KROF-TA are the specialist in designing projects for setting up of effluent treatment plants particularly pertaining to tanneries. Mr. Shanti Bhushan states that the project is likely to cost about ₹ 5 crores. The total amount shall be pooled by the tanners themselves. Even the land which will be required for the project will be purchased and utilised by the tanners themselves. According to Mr. Shanti Bhushan the plant can be set up at the existing location in Tangra where according to him sufficient land is available. It is not possible for us to say whether the project as prepared by KROFTA is viable and feasible, keeping in view the location where the tanneries are situated. It is suggested by Mr. Shanti Bhushan that NEERI may be asked to have a se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of NEERI for their inspection and' report. This Court has been monitoring this petition for a along time primarily with a view to control pollution and save the environment. In the process the Calcutta tanneries have been extended all possible help to re-locate themselves to the new complex. Despite repeated reports by the Board that the Calcutta tanneries were/are discharging highly noxious effluent and are polluting the land and the river, this Court did not order the closure of the tanneries because they agreed before this Court and had given clear undertaking that they would relocate to the new complex. Inspite of all the efforts made by this Court to provide every possible facility to the Calcutta tanneries to shift to the new complex they remained wholly non-cooperative. With a view to control the pollution generated by the Calcutta tanneries this Court in the order quoted above agreed to examine the proposal regarding setting up of common effluent treatment plants at the existing areas where the tanneries are operating. This Court directed NEERI to examine the feasibility of the projects. NEERI submitted its report dated September 30, 1995. The report indicates that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Collector, South 24 Parganas which are annexed hereto and marked Letter 'C' and Cl' respectively. Along with the affidavit the Principal Secretary has annexed letter dated July 12, 1995 from District Magistrate, South 24 Pgs. addressed to the Principal Secretary. The operative part of the letter is as under: Kindly recall your verbal instruction in the matter indicated above. A sketch map has been prepared on the Thana map showing the location of Wetland as shown in Annexure - 'C' of the case referred above as also the location of the proposed Calcutta Leather Complex. It is evident from the sketch plan enclosed herewith that eastern boundary of the Wetland falls to the West and is beyond the boundary of the proposed Calcutta Leather Complex site. The technical report prepared by the surveyor is also enclosed herewith. Incidentally, it may be mentioned that the berries mentioned in the Writ Petn. are situated within the boundary of Annexure -'C' of the Writ Petn. of the case mentioned above. It, therefore, shows that the area of the proposed Calcutta Leather Complex does not fall within the area of the Wetland. The Technical Repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may, or is likely to, create a nuisance or render such water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of aquatic organisms; (j) stream includes (i) river; (ii) water course (whether flowing or for the time being dry); (iii) inland water (whether natural or artificial); (iv) subterranean waters; (v) sea or tidal waters to such extent or, as the case may be, to such point as the State Government may, by notification in the Official Gazette, specify in this behalf; (k) trade effluent includes any liquid, gaseous or solid substance which is discharged from any premises used for carrying on any (industry operation or process, or treatment and disposal system), other than domestic sewage. 24. Prohibition on use of stream or well for disposal or polluting matter, etc. - (1) Subject to the provisions of this section, - (a) no person shall knowingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge the trade effluent into a stream or on land. According to the affidavits filed by the Board very large number of Calcutta tanneries have not obtained the consent required under the Water Act. Such tanneries are liable to be prosecuted under the Water Act. 18. The Calcutta tanneries are also violating the mandatory provisions of the Environment (Protection) Act, 1986. We direct the Board to examine individual cases and take necessary action against the defaulting tanneries in accordance with law. 19. This Court in Vellore Citizens Welfare Forum v. Union of India and Ors. : AIR1996SC2715 , explained the Precautionary Principle and polluters Pays principle as under: Some of the salient principles of Sustainable Development , as culled out from Brandtland Report and other international documents, are Inter Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays principle, Obligation to assist and cooperate, Eradication of Poverty and Financial Assistance to the developing countries. We are, however, of the view that The Precautionary Principle and The Polluter Pays principle are essent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Tangra, Tiljola, Topsia and Pagla Danga areas in the eastern fringe city of the Calcutta (about 550 in number) shall relocate themselves from their present location and shift to the new leather complex set up by the West Bengal Government. The tanneries which decline to relocate shall not be permitted to function at the present sites. 2. The Calcutta tanneries shall deposit 25% of the price of the land before February 28, 1997 with the concerned authority. The subsequent installments shall be paid in accordance with the terms of the allotment letters issued by the State Government. 3. The tanneries who fail to deposit 25% of the price of the land as directed by us above shall be closed on April 15, 1997. 4. The Board shall issue public notice in two English and two Bengali newspapers for two consecutive days by December 31, 1996 directing the Calcutta tanneries to deposit 25% of the land-price before the authority named therein by February 28, 1997. It shall also be stated in the public notice that the tanneries failing to deposit the amount shall be closed on April, 15, 1997. 5. The Board shall prepare a list of the tanneries which decline/fail to deposit 25% of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... close all the tanneries operating in Tangra, Tiljola, Topsia and Pagla Danga areas of the city of Calcutta by September 30, 1997. No tannery shall function or operate in these areas after September 30, 1997. 14. The State Government shall appoint an authority/Commissioner who with the help of Board and other expert opinion and after giving opportunity to the polluting tanneries concerned assess the loss to the ecology/environment in the affected areas. 15. The said authority shall further determine the compensation to be recovered from the polluter - tanneries as cost of reversing the damaged environment. The authority shall lay down just and fair procedure for completing the exercise. 16. The amount of compensation shall be deposited with the Collector/District Magistrate of the area concerned. In the event of non-deposit the Collector/District Magistrate shall recover the amount from the polluter-tanneries, if necessary, as arrears of land revenue. A tannery may have set up the necessary pollution control device at present, but it shall be liable to pay for the past pollution generated by the said tannery which has resulted in the environment degradation and suffering to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kmen shall also be paid in addition six years wages as additional compensation. e. The workmen who are not willing to shift along with the relocated industries shall be deemed to have been retrenched under similarly circumstances as the workmen in (d) above but they shall be paid only one years wages as additional compensation. f. The shifting bonus and the compensation payable to the workmen in terms of this judgment shall be paid by May 31, 1997 by the tanneries which close on April 15, 1997 and by November 15, 1997 by the other tanneries closing on September 30, 1997. g. The gratuity amount payable to any workmen shall be in addition. 23. We have issued comprehensive directions for achieving the end result in this case it is not necessary for this Court to monitor these matters any further. We are of the view that the Calcutta High Court would be in a better position to monitor these matters hereinafter. The Green Bench is already functioning in the Calcutta High Court. We direct the registry of this Court to send the relevant records, orders, documents etc. pertaining to the Calcutta tanneries to the Calcutta High Court before January 10, 1997. The High Court shal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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