TaxTMI 
TaxTMI 
1996 (12) TMI 414
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....oj Swarup, Sanjay Parikh, Bijon Swarup, Bijan Kumar Ghosh, 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 eas....
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....hree months time to the State Government to take appropriate steps in that direction. 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 Dail....
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....as are also enclosed herewith collectively and marked as Annexure - 'A'. I It reveals from the inspection 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....
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....ed. By the said Notification a Monitoring Committee for the integrated leather complex to be set up in the District of South 24 Parganas has been constituted. The Committee consists 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 Au....
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....s from October 14, 1993. We have been informed by the learned Counsel appearing for the State of West Bengal that a preliminary report has been received from the Central Leather Research Institute, Madras, but 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 ....
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....ave been taken by the Government of West Bengal to comply with our orders reproduced above. We issue notice returnable on 19.8.1994 to (through speed post/fax) Mr. Prabir Sengupta, Minister Incharge, Department of Cottage and 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 Secr....
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.... and finally the Court passed the following order: Mr. Ajoy Sinha, Principal Secretary to the Government of West . Bengal and Secretary Department of Cottage and Small Scale Industries has filed two affidavits dated February 7, 1995 and 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 Rs. 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 Rs. 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 c....
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....enable the Ministry and the Ganga Project Directorate to reconsider the whole matter and file a fresh affidavit in this Court within the above period. Copy of this order may be sent to the Ministry of Environment and Forest and to the Ganga Project Directorate. 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 Pr....
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....lex. Since Rs. 65 crores are now being spent by the Ganga Project Directorate, and the State of West Bengal, the total price for the purposes of market value has to be reduced. After doing this exercise, all present agree that the price comes to Rs. 600 per sq. 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 Rs. 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 Rs. 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 Boar....
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.... Control Board states that pursuant to this Court's order dated April 7, 1995 individual notices have been issued to all the tanneries to be re-located. Learned Counsel for the tanneries has brought to our notice that some of the tannery owners are residing within the tannery premises. 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,....
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....t the setting up of the common effluent treatment plant/plants at the existing tanneries complexes was not possible but despite that this Court gave liberty to Mr. Shanti Bhushan to file a short affidavit indicating the details of the project. Thereafter the matter came up for further consideration on September 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 Rs. 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 exist....
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.... learned Counsel will file three copies of the project report along with one copy of the brochure pertaining to KROFTA. The Registry shall send by speed post/fax one copy of the same to NEERI along with this order The expenses of the NEERI shall be borne by Mr. Shanti Bhushan's clients. We make it clear that other tanneries which are located in Tiljala, Topsia and Pagla Darga may, if they have joint project like that of Tangra, the same be placed before the visiting team 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....
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....ourt's order dated July 14, 1995 Ajoy Sinha, Principal Secretary and Secretary, Department of Cottage and Small Scale Industries, Government of West Bengal filed affidavit dated July 29, 1995. Para 7(d) of the affidavit is as under: It is further submitted that the said area is clearly outside the boundaries of the wetland area as claimed by the writ petitioners in O.K. No. 2851 of 1992 in the court of Mr. Justice Umesh Chandra Banerjee in the Calcutta High Court, This will appear from the map and report submitted by 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 herewi....
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....utta tanneries are at present operating. 17. The Calcutta tanneries are even otherwise operating in violation of the provisions of the Water (Prevention and Control of Pollution) Act, 1974 (the Water Act). Sections 2(dd), (e), (J), (k) 24(l)(a) 25(1), (2) and 26 of the water Act are as under: 2(dd) "outlet" includes any conduit pipe or channel, open or closed, carrying sewage or trade effluent or any other holding arrangement which causes or is likely to cause, pollution. (e) "pollution" means such contamination of water or such alteration of the physical, chemical or biological 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 na....
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....ing any sewage or trade effluent into a [stream or well or sewer or on hand], the provisions of Section 25 shall, so far as may be, apply in relation to such person as they apply in relation to the person referred to in that section subject to the modification that the application for consent to be made under Sub-section (2) of that section (shall be made on or before such date as may be specified by the State Government by notification in this behalf in the Official Gazette). It is obvious from the provisions of the Water Act reproduced above that in terms of Section 26, the Calcutta tanneries are under an obligation to obtain consent from the Board before they are permitted to discharge 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 ....
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....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. 20. The precautionary principle and the polluter pays principle have been accepted as part of the law of the land. 21. It is thus settled by this Court that one who pollutes the environment must pay to reverse the damages caused by his acts. 22. We, therefore, order and direct as under: 1. The Calcutta tanneries operating 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 authori....
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.... (Civil) No. 4677/1985 relating to the shifting of Delhi industries. The shifting tanneries on their relocation in the new leather complex shall be given incentives which are normally extended to new industries in new industrial estate. 11. The tanneries which are not closed on April 15, 1997 must relocate and shift to the new leather complex on or before September 30, 1997. 12. All the Calcutta tanneries shall stop functioning at the present sites on September 30,1997. The closure order with effect from September 30, 1997 shall be unconditional. Even if the relocation of tanneries is not complete they shall stop functioning at the present sites with effect from September 30,1997. 13. We direct the Deputy Commissioner/Superintendent Police of the area concerned to 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 concerne....
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....ed. The terms and conditions of their employment shall not be altered to their detriment. b. The period between the closure of the tannery at the present site and its restart at the place of relocation shall be treated as active employment and the workmen shall be paid their full wages with continuity of service. c. All those workmen who agree to shift with the tanneries shall be given one years wages as "shifting bonus" to help them settle at the new location. d. The workmen employed in the tanneries which fail to relocate shall be deemed to have been retrenched with effect from April 15, 1997 and September 30, 1997 respectively keeping in view the closure dates of the respective tanneries provided they were in continuous service for a period of one year as defined in Section 25B of the Industrial Disputes Act, 1947. These workmen 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 compensat....