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2011 (1) TMI 1331
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....stos in the factories or establishments where such activity is being carried out and also to initiate criminal proceedings against all the responsible persons including the owners of such factories, organizations and associations for infringing the right to life of the asbestos victims. 2. The above writs/directions have been prayed for on the premise that petitioner, Kalyaneshwari, is a non-governmental organization, registered under the Societies Registration Act XXI of 1860. It is a voluntary organization allegedly promoted to serve the general public without distinction of caste or religion and working for the protection of consumers' interest. This Court in the case of Consumer Education and Research Centre v. Union of India [(1995) 3 SCC 42)] accepted the well established adverse effects of asbestos including the risk beyond the work place and held as under: "17. It would thus be clear that disease occurs wherever the exposure to the toxic or carcinogenic agent occurs regardless of the country, the type of industry, job title, job assignment or location of exposure. The disease will follow the trail of the exposure and extend the chain of carcinogenic risk bey....
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.... got 14 direct workers of an asbestos unit examined by qualified occupational health doctors and the results were shocking, inasmuch as 13 workers were suffering from asbestosis with five workers being in advanced stage. Though these workers are covered under State ESI Scheme, no proper and adequate treatment is being provided to them. Thousands of poor and ignorant people in Udaipur District in Rajasthan were engaged in asbestos mining before the Ministry of Mines decided in the year 1996 not to issue or renew any asbestos mining licenses in India. Still today, some of them are engaged in illegal mining, which they do at the instance of local asbestos products manufacturers. It is also averred by the petitioner that there is complete failure on the part of the manufacturers in providing safety equipments to workers, regular health check-up, monitoring air borne dust and maintaining health register of the workmen. The petitioner also claims to have already documented more than 500 victims suffering from asbestos related diseases from the above-noted five States and, upon examination by well-known chest specialists, they have been identified as suffering from such diseases. The cost....
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....on of India, it is stated that the organized sector in India uses only imported variety of Chrysotile asbestos which is considered to have least harmful impact on the health of workers engaged in the manufacture of asbestos products and sufficient precautionary measures are being taken by the industry to protect the workers from excessive exposure to the hazardous impact of asbestos fibre. Meeting the contentions raised by the petitioner as aforenoticed, it is submitted on behalf of the concerned respondents that only selective references have been made by the petitioner to unnecessary inflate the impact of asbestos fibre on public health. No recognition has been given by the petitioner to the strict emission norms prescribed for the industries manufacturing asbestos products by Ministry of Environment and Forest and other efforts undertaken by the Ministry have also not been referred to by the petitioner. Prescription of stringent emission norms is one of the main effort made by the concerned Ministry. The prescribed norms in the Environment (Protection) Act, 1986 are as follows : "These standards are 2.0 mg/Nm3 of total dust and 4 fb/cc of pure asbestos material, now bei....
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....n line with the international standards and it would not exceed 0.1 fibre/cc at any time in the last three years. Some states like Himachal Pradesh, Tripura, Mizoram, Sikkim, Arunachal Pradesh and Manipur have stated that there is no asbestos factory within their territory. 8. State of Tamil Nadu in its affidavit has averred that only 13 factories which are handling Asbestos have been brought under the purview of Factories Act, 1948 out of which 3 factories are not working for the past 5 years and in the remaining 10 factories "Membrane Filter Test" is regularly being conducted and the asbestos fibre is found to be within the permissible limits. The workmen of these factories are covered under the Workmen Compensation Act/Employees State Insurance Scheme/Group Insurance of Insurance Company. Thus, their interests are well protected. State of Bihar in its affidavit has stated that presently there is no industrial unit involved in manufacturing asbestos in the State. The use of asbestos product in the State is limited and is not to an extent that the secondary user of asbestos is likely to suffer from Mesothelioma fatalities attributed to asbestos. On the contrary, it also appears....
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....d, there is hardly any occasion for the petitioner to institute this Writ Petition as an independent proceeding. The petitioner has made no effort to collect any information/data from various States as to whether the directions issued by the Court in that matter are being strictly implemented or not at all. On the contrary, it is the stand of the States as well as Union of India that the directions issued by this Court are being strictly adhered to. The parameters and norms have been specified and the industries using such raw materials are being constantly watched, in relation to all the functions of the factory, specially keeping in view the environment and health status of the workers and nearby residents. Even subsequent to the filing of the present petition, the petitioner has not put in any effort to seriously rebut the averments made in various affidavits filed by the States. 11. In Jayjit Ganguly v. Union of India, [CWP No. 412 of 2002 decided on 15th December 2004], a Division Bench of the Calcutta High Court also noticed that there is no dispute that asbestos fibre is hazardous to health and continuous exposure to certain types of such fibre can also prove to be fatal ....
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..... It is not for this Court to legislate and ban an activity under relevant laws. Every factory using or manufacturing asbestos, obtains a licence under the Factories Act as well as permission from the competent authorities including permission under the Environmental Laws. Once all the laws in force have been complied with and directions of this Court as contained in the case of Consumer Education and Research Centre (supra) are carried out in their true spirit, we see no reason as to why this Court, in exercise of its extraordinary jurisdiction under Article 32 of the Constitution, should ban such an activity when admittedly large number of families are dependent upon such processes. What has to be ensured is that proper precautions are taken. The Court had already made ILO guidelines as one of the safety measures to be complied with by the industries and it is expected of each State Government and the Union Government to ensure safe and controlled use of asbestos. What is required is better supervision and regulatory control rather than banning of the activity. Lack of specific data as well as vague averments in the Writ Petition amongst others are the grounds on which we should ....
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....ected that a review by the Union and the States shall be made after every ten years and also as and when the ILO gives directions in this behalf consistent with its recommendations or conventions. Admittedly, 15 years has expired since the issuance of the directions by this Court. The ILO also made certain specific directions vide its resolution of 2006 adopted in the 95th session of the International Labour Conference. It introduced a ban on all mining, manufacture, recycling and use of all forms of asbestos. As already noticed, serious doubts have been raised as to whether `controlled use' can be effectively implemented even with regard to secondary exposure. These are circumstances which fully require the concerned quarters/authorities in the Government of India as well as the State Governments to examine/review the matter in accordance with law, objectively, to achieve the greater health care of the poor strata of the country who are directly or indirectly engaged in mining or manufacturing activities of asbestos and/or allied products. 15. As already noticed above, the Government has already presented the Bill in Rajya Sabha. The statement of objects and reasons of this....
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....nt (Protection) Act, 1986 should ensure that all the appropriate and protective steps to meet the specified standards are taken by the industry before or at the time of issuance of environmental clearance. 17. However, we find that it is imperative for the Court to issue the above directions in order to strike a balance between the health hazards caused by this activity on the one hand and ground reality that a large number of families, all over the country, are dependent for their livelihood on this activity, on the other. We certainly are not entering into the arena of legislature and are passing above directions in furtherance to the law laid down by this Court which, in terms of Article 141 of the Constitution, is binding on all concerned and to ensure effective and timely implementation of the provisions of the Environment (Protection) Act. These directions must be read and construed in comity with the proposed legislation and are in no way detrimental to the same. 18. Before parting with this file we have to deal with one of the main objections raised by the respondents, as noticed above, particularly, Respondent No. 37 that the present petition is a result of business ....
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....ved that "when there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out." Since there is business rivalry between the said ESCL and the Respondent No. 5 and since the said ESCL is in the habit of sponsoring such petitions, we do not concur with the view of the present petitioners that there is a real and genuine public interest involved in the litigation. It is difficult to believe that they have approached this court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration, as observed by the Hon'ble Supreme Court in that case." The above observation of the High Court indicates the relationship between the NGOs and the Steel Company, whose name is quoted hereinabove. Shri Colin Gonsalves, learned senior counsel appearing on behalf of the petitioner herein all throughout these proceedings till today, fairly states that he has looked into the matter and it would not be possible for him to appear on behalf of the petitioner in this mat....
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....ction of any kind with ESCL at any point of time; second, even in the affidavit, necessary particulars have not been given of the company or the project for which he was working in Rajasthan. Still attempt has been made to put the blame on the Gujarat High Court by stating that the Court had not appreciated the facts correctly. Other NGOs had also filed some writ petitions and as such the petition by the petitioner was bona fide. It is also averred, `it is pertinent to mention that neither the Court nor the respondent felt the need for substantiating the allegations with evidence, which is contrary to the settled proposition of law that a person making an allegation needs to prove it'. 20. Three writ petitions had been filed in the Gujarat High Court, including one by B.K. Sharma acting on behalf of the petitioner NGO, which was petitioner No. 2, in that Writ Petition, seeking direction against the authorities to take appropriate preventive steps and measures against the Respondent No.5 M/s. Saw Pipes Ltd. in proceeding further with the construction activities of Respondent No.5's project comprising Blast Furnace and Ductile Iron/Cast Iron pipe, fittings casting manufact....
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....a (supra). Above was the conduct of the petitioner before the Gujarat High Court and we hardly find any improvement in its behaviour before this Court in the present litigation. Even before this Court, a judgment which has attained finality on all factual matrix and even otherwise, is attempted to be brushed aside by making irresponsible statements, inter alia, that the Gujarat High Court had failed to apply its mind. The judgment of the Gujarat High Court dismissing all the three writ petitions was challenged before this Court by way of filing Special Leave Petitions which came to be dismissed vide order dated 28th January, 2005. Thus, the judgment of the Gujarat High Court for all intent and purposes attained finality and we do not think that legality or correctness of the judgment can now be questioned in these proceedings. It is of no use and help to the petitioners now to claim that no proof was produced before that Court to establish the allegations that the petition was filed at the behest of ESCL. They were writ petitioners and the Court, after hearing the parties at length and perusing the record, has recorded the above findings which, in any case, do not suffer from an....
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.... ESCL is one of the largest manufacturer of iron and allied products in India and there was a professional and/or other connections between ESCL and B.K. Sharma on the one hand and B.K. Sharma and Shanti Swarup on the other who, admittedly at present, is involved with the activities of NGO for a considerable time. Thus, it would be a reasonable conclusion to draw that the Writ Petition has been hardly filed in public interest but is a private interest litigation to give rise to business opportunities in a particular field. 25. In Ashok Kumar Pandey v. State of West Bengal [(2004) 3 SCC 349], this Court took a cautious approach while entertaining public interest litigations and held that public interest litigation is a weapon, which has to be used with great care and circumspection. The judiciary has to be extremely careful to see that no ugly private malice, vested interest and/or seeking publicity lurks behind the beautiful veil of public interest. It is to be used as an effective weapon in the armoury of law for delivering social justice to citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. In the case of R....
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....to treat this problem at the national level and had spent its judicial time. All the States in the country have been issued notices of this petition and they have denied the allegations. It was incumbent upon the petitioner thus to at least substantiate the averments in the petition by some cogent and documentary evidence actually related to the working conditions of the workmen in various factories in different States. In our view, the petitioner has miserably failed to discharge this onus. 27. The conduct of the petitioner before the Gujarat High Court appears to be contemptuous and certainly is an abuse of the process of the court in terms of the finding recorded by that Court which has attained finality. That petition was instituted at the behest of ESCL, while the present petition also does not demonstrate that intention of the petitioner is to achieve public interest. This Court in Raunaq International Ltd. v. I.V.R. Constructions Ltd. [(1999) 1 SCC 492] has clearly stated that public interest litigation should be bona fide for public good and nor merely a cloak for attaining private ends. The Court clearly enunciated the principle that previous record of public service of....