O.J.C. NO.WP(C) 161/2002 of 2002 Dated 03.07.2002
IN THE MATTER OF :
An application under Article 226 of the Constitution of India;
And
IN THE MATTER OF :
An application concerning Article 48-A of the Constitution of India;
And
IN THE MATTER OF:
An application concerning Water (Prevention and Control of Pollution) Act, 1974;
And
IN THE MATTER OF:
An application concerning Air (Prevention and Control of Pollution) Act, 1981;
And
IN THE MATTER OF:
An application concerning the provisions of the Environment (Protection) Act, 1986;
And
IN THE MATTER OF :
Project Swarajya
A non-Governmental Organisation registered under the Societies Registration Act,
represented by its Secretary, Dolli Dash, aged 35 years,
At Ganeshghat, Bakharabad, P.O. Chandinichowk, Cuttack-753002, District-Cuttack
PETITIONER
VERSUS
OPPOSITE PARTIES
The matter out of which this writ petition arises was never before this Hon'ble Court in any form whatsoever.
TO
THE HON'BLE SHRI P.K. BALASUBRAMANYAN, B.SC., B.L.,
CHIEF JUSTICE OF THE HIGH COURT OF ORISSA AND HIS LORDSHIP'S
HON'BLE COMPANION JUDGES OF THE SAID HON'BLE COURT.
The humble petition of the above- named petitioner
MOST REPECTFULLY SHEWETH :
1.That in this Writ Application, the petitioner, which is a Non-Government Organisation and registered under the Societies Registration Act,1860, approaches this Hon'ble Court for its intervention and interference in the matter of pollution caused by the Opposite Party No.7 (M/s.Oswal Chemicals and Fertilisers Ltd.), in clear violation of the norms of the laws concerning the Pollution and Environment and Measures / Yardstick / Guidelines fixed by the Opposite Parties Nos.5 and 6. It is further humbly submitted that the opposite parties 1 to 3 have not been able to pursue the matter in its right perspective to ensure that the opposite party No. 7 does not cause pollution by which the human habitation as well as the lives of other living beings have become literally impossible. Therefore, the petitioner seeks indulgence of this Hon'ble Court for appropriate order(s) to be issued to the opposite parties, directing either closure of the Opposite Party No.7 or taking adequate steps to ensure that the Opposite Party No.7 does not cause any sort of pollution by violating any norms fixed by the Statutes and directions of the Opposite Parties 5 and 6.
2.That the petitioner-organisation was registered on 9th January, 1989 with certain aims and objects to achieve. One of its aims and objects is to undertake necessary Programmes and Projects for Conservation and Sustainable Management of Vulnerable and Critical Eco- systems and their endangered biodiversity. In order to achieve the above object, the pertitioner-organisation in the past has organized a State Level Seminar on Conservation of Fragile Marine Eco-system of Orissa Coast and its endangered species. The aforesaid Seminar, which was held on 4th February, 2001, was not only attended by eminent Scientists, Bureaucrats and Environmentalists but also it was duly supported and co- sponsored by the Ministry of Environment and Forests, Government of India (Opposite Partyno-4). It is also pertinent to mention here that the local people were invited and their presence was found in abundance in the said Seminar and most of them participated in the deliberations by ventilating the genuine grievances they do have, to the concerned officials present in the Seminar in regard to the pollution hazards which they are facing every day.
In the said Seminar, though certain recommendations (which were the outcome of the deliberations) were made and the officials present there from the State Government had assured to take positive measures to see that the environmental equilibrium is attained shortly, but nothing positive /fruitful has been done as yet. When nothing positive came out within a span of about one year and half, the petitioner-organisation, which is much concerned about the Ecological Balance and the lives of the living beings including human habitations in the locality, is approaching this Hon'ble Court by filing this writ petition to set right and to bring normalcy to the Ecology/Environment.
3.That the petitioner humbly states and submits that Air and Water Pollution and Disturbance in the Equilibrium status of environment is a recently discovered phenomenon. But since the dawn of the Industrial Revolution, the people in many communities, have endured the level of Smoke Pollution that would be held intolerable to-day. In the last half of the Nineteenth Century, a surprising number of aroused citizen groups protested Smoke- laden Air of London. But their protests were lost in overwhelming clamour for industrial development at any price. Chicago and Cincinnati passed Smoke Control Laws in 1881. By 1912, 23 American Cities with population over two lakhs had passed similar laws. In the 1930s, 1040s, and 1950s Smoke Pollution reached its zenith in the United States. The public outcry against these conditions resulted in the enactment of Improved Smoke Pollution legislation, its partial enforcement and a visible improvement in the area of some industrial cities. These local control efforts focused primarily on cutting down the source from fossil fuels particularly coal.
4.That the pollution, in India, had not been experienced for a long time to be causing threat to the human lives as well as the lives of all living beings. It was realized at a much later stage by our law-makers and accordingly in the year 1976 by the Forty second Amendment to our Constitution, Articles 48-A and 51-A were inserted. By this Forty second Amendment, the Legislature has laid the foundation under Articles 48-A and 51-A for a jurisprudence of environmental protection. To-day the State and citizens are under a fundamental obligation to protect the environment. Environment includes Water, Air and Land and the entire relationship exists among and between water, air and land, human beings, other living creatures, micro-organism and property. Therefore, it is humbly submitted that when to protect the serenity of nature and environment, Acts were being legislated and Forums were established, the authorities should wake up before the matter slips out of their hands. Their approach should not smack of mercenariness. The actions of a few individuals like the opposite party no.7 should be thought of. The actions which are expected of the human beings and intellectuals should not be like the actions of apes to provoke and antagonize the nature. The easiest way to provoke the nature is by polluting water and air and/or remaining callous to pollution, because water and air are the greatest gifts of nature. Therefore, it becomes all the more necessary that this Hon'ble Court should indulge itself in the matter and direct the Opposite Parties 1 to 6 to take necessary action to immediately stop the nuisance and the pollution hereinafter described by the Opposite Party no.7, or else the citizens of the locality will be deprived of enjoying the gifts of the nature.
5.That it is humbly stated here that the Air (Prevention, Control and Pollution) Act, 1981 was enacted under Article 253 of the Constitution of India to implement the decision taken at the United Nations Conference on Human Environment held in Stockholm in June, 1972 in which India had participated. With the increasing industrialisation and the tendency of the majority of industries to congregate any areas which are already heavily industrialized, the problem of Air Pollution has begun to be felt in the country. The problem is more acute in those industrilised areas which are densely populated. The short term steps taken by the National Environmental Engineering and Research Institute, Nagpur have confirmed that the cities of Calcutta, Bombay and Delhi etc. are facing the impact of air pollution on a steadily increasing level. It is humbly stated here that what was the state in Nagpur years back, has been increasingly and heavily treading into the atmosphere of Orissa by causing alarm to the human habitation.
The persons in the area beyond certain limits of various pollutants, discharge their industrial emissions, which have a detrimental effect on the health of people as well as on animal life, vegetation and property.
In the United Nations' Conference on the Human Environment held in Stockholm in June, 1972, in which India participated, decisions were taken for taking appropriate steps for the preservation of natural resources of the Earth which, among other things, include the preservation of the Quality of Air and control of Air Pollution. The Government decided to implement these decisions of the said Conference in so far as they relate to the preservation of the quality of air and control of air pollution.
6.That the problem of pollution of rivers and streams has also assumed considerable importance and urgency in the recent years as a result of the growth of industries and the increasing tendency for urbanization. It is, therefore, essential to ensure that the industrial effluents and also the domestic effluents are not allowed to be discharged into the water courses without adequate treatment, as such discharges would render the water unsuitable as a source of drinking water as well as for supporting fish life and for use in irrigation. Pollution of rivers and streams also causes increasing damage to the country's economy.
A Committee was set up in 1962 to draw a Draft Enactment for the prevention of water pollution. The report of the Committee was circulated to the State Governments and was also considered by the Central Council of Local Self Government in Septembe, 1963. This Council resolved that a single law regarding the measures to deal with water pollution and control, both at the Centre and at the State levels, may be enacted by the Union Parliament. A Draft Bill was accordingly prepared and put up for consideration at a joint session of the Central Council of Local Self Government and the Fifth Conference of the State Ministers of Town and Country Planning was held in 1965. In pursuance of the decision of the joint session, the Draft Bill was considered subsequently in detail by a Committee of Ministers of Local Self Government from the States of Bihar, Madras, Maharastra, Rajsthan, Haryana and West Bengal.
Having considered the relevant local provisions existing in the country and the recommendations of the aforesaid Committees, the Government came to the conclusion that the existing legal provisions are neither adequate nor satisfactory. It was, therefore, urgently felt for introducing a comprehensive legislation which would establish unitary agencies in the Centre and States to provide for the prevention, and control of pollution of rivers and streams, for maintenance or restoring wholesomeness of such water-courses and for controlling the existing and new discharges of industrial wastes.
Therefore, it can be summarized to the extent that the Bill followed the recommendations of the aforesaid Committees and sought to-
And finally the Bill took the shape of Water (Prevention and Control of Pollution) Act, 1974.
Therefore, in sum and substance, by appreciating the increase in pollution, both in the water and air and the alarming situation causing hazards to human life as well as the lives of other living beings, the Legislature thought it urgent, proper and just, to legislate the aforesaid two enactments and under the said enactments, appropriate Forums were/are said to be established to monitor and regulate with the ultimate aim of eradicating pollution, both of water and air.
7.That the petitioner further humbly states that the decline in the environmental quality was evidenced by increasing pollution, loss of vegetal cover and biological diversity, excessive concentration of harmful chemicals in the ambient atmosphere and in food chain, growing risks to environment and threats to life support systems. The world community resolved to protect and enhance the environmental quality, which found expression in the decisions taken at the United Nations' Conference on the Human Environment held in Stockholm in June, 1972. The Government of India participated in the Conference and vigorously supported its environmental concerns. While several measures have been taken for environmental protection, both before and after the Conference, the need for a general legislation further to implement the decisions of the Conference become increasingly evident.
Although there were then existing laws, dealing directly or indirectly, with several environmental matters, it was however felt necessary to have a general legislation for the environmental protection. The then existing laws generally focused on specific types of pollution or on specific categories of hazardous substances. Some major areas of environmental hazards were not covered. There also existed uncovered gaps in areas of major environmental hazards. There were inadequate linkages in handling matters of industrial and environmental safety. Controlled mechanisms to guard against the slow, insidious build-up of hazardous substances, especially new chemicals in the environment were weak. Because of multiplicity of regulatory agencies, a need for an authority which can assume the lead role for studying, planning and implementing long term requirements of environmental safety and to give direction and coordinate a system of speedy and adequate response to emergency situations threatening environment, was deeply felt. In view of such urgent need for enactment of a general legislation on environmental protection, it was thought proper by the Legislature to coordinate activities of the various regulatory agencies through creation of an authority/authorities with adequate powers to check environmental pollution. Accordingly, the Legislature brought in a general enactment in regard to the environment known as Environment (Protection) Act, 1986.
8.That under the Water (Prevention and Control of Pollution) Act, 1974, the Central Pollution Control Board was set up by the Central Government and also the respective State Governments constituted their respective State Pollution Control Boards. Under Section 16 of the 1974 Act, wide powers have been given to the Central Board and similar kinds of powers were also conferred upon the State Boards under Section 17 of the said Act.
Section 24 of the 1974 Act prohibits use of stream or well for disposal of polluted matter. Under Section 25, no person shall, without the previous consent of the State Board, establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluents into a stream or well or sewer on land or begin to make any new discharge of sewage. Under sub-section (2) of Section 25, an application for consent of the State Board shall be made in a particular format and under sub-section (3), the State Board, after making an enquiry in respect of the application for consent, may grant the consent subject to such conditions as it may impose.
Under sub-section (4) where, without the consent of the State Board, any industry, operation or process; or any treatment and disposal system or any extension or addition thereto is established, or any steps for such establishment have been taken or a new or altered outlet is brought into use for the discharge of sewage or a new discharge of sewage is made, the State Board may serve on the person who has established or taken steps to establish any such industry, operation or process, a notice imposing any such conditions as it might have imposed on the application for its consent in respect of such establishment, outlet or discharge.
Under Section 27, a State Board shall not grant its consent under sub-section (4) of Section 25 for establishment of any industry, unless the industry is established so as to comply with the conditions imposed by the Board to enable it to exercise its right to take samples of the effluents. Under sub-section (2) of Section 27, the State Board may from time to time review any condition imposed under Section 25 or under Section 26 and may serve on the person to whom a consent under Section 25 or Section 26 is granted, a notice making any reasonable variation of or revoking any such condition. Under Section 32 ( c ) the State Board can issue orders immediately restraining or prohibiting the person concerned, from discharging any poisonous, noxious or polluting matter into a stream or well or on land, or from making any unsanitary use of the stream or well, where it appears to the State Board that any poisonous, noxious or polluting matter is present and the same is caused by any industry.
Under Section 33-A of the 1974 Act, notwithstanding anything contained in any other law, but subject to the provisions of this Act, a Board on behalf of the Central Government may, in the exercise of its powers and performance of its functions under the Act, issue any directions in writing to any person, officer or authority, and such person, officer or authority shall be bound to comply with such directions. Under the Explanation for the avoidance of doubts, it has been declared that the power to issue directions under Section 33-A includes the power to direct the closure, prohibition or regulation of any industry, operation or process, or the stoppage or regulation of supply of electricity, water or any other service.
Section 43 of the Act provides punitive measures, and under the said provision, whoever contravenes the provisions of Section 24 shall be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and fine. Under Section 44, whoever contravenes the provisions of Section 25 years or 26 shall be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine.
Therefore in sum and substance, under the 1974 Act, not only that the Board has got authority to give direction for the closure of the industry causing pollution but also the person(s) causing pollution are liable to be punished in a properly constituted criminal case against him/them.
9.That similar provisions have also been made in the Air (Prevention and Control of Pollution) Act, 1981.
Under Section 5 of the Environment (Protection) Act, 1986, the Central Government has also power to direct closure of any industry and further direct stoppage or regulation of supply of electricity or water, if the industry is found to be causing harm to the equilibrium state of the environment. Section 7 of the Environment (Protection) Act, 1986, mandates that no person carrying on any industry, operation or process shall discharge or emit or permit to be discharged or emitted any environmental pollutants in excess of such standards as may be prescribed.
10.That, therefore, the petitioner humbly states that in order to save the environment, the Legislature from 1974 has been making all sorts of endeavor to bring in certain progressive enactments and the aforesaid three Acts are the resultant of such effort. A conjoint reading of all these enactments clearly establishes that whoever wants to set up an industry, it has to obtain permission, which is otherwise known as "No Objection Certificate" from the Board for setting up an industry and after the industry becomes operative, it has to take all possible measures to ensure that it does not discharge any effluent and/or emit any obnoxious substance to the air which violates the specific terms and conditions of the "No Objection Certificate".
It is humbly clarified here that before setting up of an industry, the person intending to set up has to give a clear-cut picture to the Board in regard to the possible trade effluents the industry is likely to discharge and the extent of unhealthy air it is going to emit, and thereafter the Board has to sit over the issue by consulting and/or minutely examining the above in their own laboratory in order to ascertain that such discharge of trade effluents and/or emission of gas do not cause any threat to the environmental equilibrium status.
11.That the Opposite Party No. 7 is a Chemical and Fertilizer Industry set up at the Paradeep Port owing to the available deep-sea harbour and provision of other conducive infrastructural facilities. In this industry phosphoric acid is produced out of a mineral called rock phosphate mixed with sulphuric acid. The phosphoric acid getting mixed with ammonia gas produces the D.A.P. fertilizer. For the use in production, the ammonia gas is brought from outside and stored in the plant. Whereas both sulphuric acid and phosphoric acid are prepared inside the plant. To prepare the sulphuric acid, the sulphur is first burned to produce the sulphur-dioxide gas, which subsequently is converted to sulphuric acid.
Sulphur-dioxide and ammonia pollute the environment. But these are the basic raw materials of a DAP fertilizer plant.
The mineral called rock phosphate containing a chemical called fluoride, while coming in contact with sulphuric acid during the preparation of phosphoric acid, produces florocyclic acid and this causes pollution. Since the acid-borne effluent should not be discharged to the outside and to ensure this safeguard, the provision of an in-built mechanism of recycling the effluents within the plant itself is a must.
It is worthwhile to make a mention here that the pollutant gases like ammonia sulphur-dioxide cause damage to the eye-sight, skin and respiratory organs of human beings.
12.That before setting up of the industry, the Opposite Party no. 7, as verily believed by the petitioner, applied to the State Pollution Control Board for necessary Permission /No Objection Certificate for the commissioning of the plant. The State Board, after studying the pros and cons, did grant a temporary N.O.C. to the Opposite Party No. 7 by prescribing certain terms and conditions and/or parameters and the Opposite Party No. 7 was duty bound to adhere to such parameters set out in the said "No Objection Certificate / Consent Order". The first consent order was granted for a period from 20th January, 2000 to 31st, March, 2000, a copy of which is annexed herewith as ANNEXURE-1.
ANNEXURE-1
It is humbly stated here that though the consent order was granted for a short period, and it was basically on experimental basis to see as to whether Opposite Party No. 7 is complying with the mandate of the consent, it was felt that the said Opposite Party No. 7 failed to comply with most of the conditions of the Consent Order. There was a leakage in the ammonia plant just after the super-cyclone to add to the miseries of the inhabitants of the nearby localities for which complaints were lodged before the State Board against Opposite Party No. 7. It was also detected that the chimneys were not having the proper height and no gas- clearing plant has been set up by Opposite Party No. 7. Besides there is no provision for a recycling plant to purify the trade effluents and no steps, what so ever, have been taken by Opposite Party No. 7 to ensure that the florocyclicic acid does not ooze out to mingle with sea and river water.
13.That complaints were made before the Board accusing the Opposite Party No. 7 and after receipt of the public complaints on 28.4.2000 the Chairman of the State Board inspected the site along with Sri N.R. Sahoo, the Environmental Engineer of the Board, and a report was furnished which indicates that the Opposite Party No. 7 has been discharging the effluents to river Mahanadi and contaminating the same in contravention of the Consent Conditions.
14.That after receipt of the complaint from the local public, the Minister of Works and Housing, Government of Orissa, in connection with the environmental degradation on account of gas leakage, referred it to the State Board, which convened a meeting on 10th May, 2000 inviting the representatives of the people of the local area, N.G.O.s and the representative of the Opposite Party No. 7, wherein officials of the Board were present. In the said meeting, the Representative of the Opposite Party No.7 agreed and assured to take necessary preventive measures before the 30th June, 2000 to minimize the degree of pollution and to take necessary steps to prevent occurrence of gas leakage and effluent discharge to the river. The proceedings of the said meeting were communicated to all the participants. It is worthwhile to make a mention here that after receipt of the Minutes of the proceeding, the Board advised the Opposite Party No. 7, vide its letter dated 13.6.2000 to take necessary follow-up action on the proceedings explained above.
15.That sometime in May, 2000, a news in regard to fire breaking out in the Sulphur Conveying System reached the State Board and the Board Officials inspected the site on 29.5.2000 to investigate the issue of sulphur burning in the plant and basing upon their observations, the Board advised the Opposite Party No. 7, vide Letter No. 10814 dated 8.6.2000 to take adequate preventive measures.
16.That the petitioner verily believes that the Consent which was granted by the State Board to Opposite Party No. 7 did expire on 31.3.2000 and thereafter no further Consent has been granted to the said Opposite Party No. 7 for running of the plant/ industry. The petitioner further believes that the Consent Order has only been granted to Opposite Party No. 7 under the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and no Consent Order has separately been granted under the Air (Prevention and Control of Pollution) Act of 1981. Though no further extension has been granted to the Consent Order under Annexure- 1, the Opposite Party No. 7 is still continuing the operation of the industry.
17.That it is humbly stated here that when the Acts mandate that no industry can be set up and/or operate without a valid Consent Order, it is astounding that the Opposite Party No. 7 is continuing with the operation of the industry despite expiration of the Consent on 31st March 2000.
It is further humbly stated here that the complaints from various sources were lodged against the operation/functioning of the Opposite Party No.7 before the State Board and the Government Machineries for which a Surveillance Squad was constituted by the Chairman of the Board which visited the site of the Opposite Party No. 7 on 11th and 12th October, 2000. The Squad submitted a report on 19.10.2000, and in the said report the Squad showed their utter dissatisfaction with the functioning of the industry and suggested the Board to ask the industry (Opposite Party No.7) to stop its production. A copy of the aforesaid Surveillance Report of the Squad dated 19.2.2000 is annexed herewith as ANNEXURE - 2.
ANNEXURE - 2
Basing upon the aforesaid report of the Surveillance Squad, the State Pollution Control Board, vide Letter No. 20639 dated 1.11. 2000 issued a Show Cause Notice to the Opposite Party No. 7, a copy of which is annexed herewith as ANNEXURE - 3.
ANNEXURE - 3
The Show Cause Notice clearly reflects that the Consent was granted up to 31st March, 2000 with 30 numbers of Special Conditions under the Water Pollution Act and 28 numbers under the Air Pollution Act. It is humbly clarified here that though two separate and clear-cut Consent Orders are to be issued under the respective Acts, the Board had allegedly issued only one Consent Order, thereby causing confusion and violation of the said Acts. However, a Show Cause Notice under Annexure - 3 further stipulates in categorical and unambiguous manner that 20 conditions out of 30 under the Water Pollution Act and 11 conditions out of 28 under the Air Pollution Act have not been complied with.
18.That consequent upon the issuance of the Show Cause Notice under Annexure -3, the Opposite Party No. 7 requested the State Pollution Board to grant them four months time for making necessary improvements in the Waste Water Management System and six months' time for making new gypsum pond with H D P.E Liner. A copy of the aforesaid reply submitted by the Opposite Party No. 7 to the Show Cause under Annexure - 3 is annexed herewith as ANNEXURE - 4.
ANNEXURE - 4
The said reply under Annexure- 4 was duly examined by the Board and it was conclusively observed that the industry (Opp. Party No. 7) has failed to comply with most of the Consent Conditions imposed in the Consent Order (Annexure-1). Accordingly, vide Letter No. 22506 dated 24.11.2000, the Orissa Pollution Control Board refused to accord any further Consent to the Opposite Party No. 7 to operate the industry for the period 2000-2001, because of non-compliance of conditions. A copy of the aforesaid letter of refusal to accord Consent No. 22506 dated 24.11.2000 is annexed herewith as ANNEXURE - 5.
ANNEXURE - 5
It is pertinent to mention here that though there was no valid consent after 31st March 2000, the Opposite Party No. 7 in gross violation of 1974, 1974, 1981 and 1986 Acts, had been operating the industry. However, the State Pollution Control Board, vide Annexure - 5, took a stern action to refuse Consent to the industry.
19.That despite issuance of Annexure -5 the Opposite Party No. 7 still persisted with its operation. So thereafter an inspection was caused by the Board and a report was furnished by the Environmental Engineer and the Environmental Scientist of the Board that the industry was in operation during their inspection in February, 2001. A copy of the Report furnished by the Environmental Scientist and the Environmental Engineer dated 8.3.2001 is annexed herewith as ANNEXURE - 6.
ANNEXURE - 6
The Report under Annexure -6 not only speaks that the industry was operating during the period when there was no valid consent from the Board, but also industry has been operating in a hazardous manner.
It is worthwhile to make a mention here that the Inspecting Officers categorically observed that there has been discharge of trade effluents outside the premises, and the samples collected of seepage from the surge pond/gypsum pond area to Atharbanki creek do not meet the standards, and rather the levels of fluoride phosphate and iron are alarmingly high, thereby endangering the people and animals depending upon the creek waters. The report further reveals that due to such discharge, the acidity level in the surrounding water bodies has increased manifold leading to contamination of the fiver Mahanadi. The aforesaid fact was communicated to the Opposite Party No. 7 by the Board vide Letter No. 4758 dated 15.3.2001 and in the said letter it was made categorical that though the industry was not having a valid Consent, it is operating and further because of the mismanagement of the waste water, the natural water bodies around the plant have been contaminated. A copy of the aforesaid letter No. 4758 dated 15.3.2001 is annexed herewith as ANNEXURE - 7.
ANNEXURE - 7
20.That the petitioner humbly submits that in the Stockholm Conference in the year 1972 India heavily voiced against the pollution caused to the environment and in view of the Resolution passed in such Conference, the aforesaid three enactments were legislated, which not only provide remedial measure but also envisage punitive measures. The provisions of the said enactments mandate strict compliance without leaving any leniency for any person causing threat to the environment.
It is further humbly stated here that in order to restrict and/or do away with any threat to environment/atmosphere by discharge of air pollutants, directions are given to the industries for undertaking afforestation, or putting earth cover, where the industrial wastes are dumped or the air pollutants are emitted. There have been often cases where directions have been issued by the Pollution Control Board to put earth cover over the industrial wastes, so that the atmospheric temperature and environmental equilibrium do not receive a threat.
It is further humbly stated here that in order to see that the industry does not cause air pollution, directions are quite often given to various industries to install air cleaning equipments by which the possibility of any industry causing air pollution gets obliterated. But unfortunately the Opposite Party No. 7 is neither having a gas cleaning plant nor it is adhering to any safety/remedial measure to see that air pollution is restricted to the zero level. More so the Opposite Party No. 7 has not caused any afforestation in or around the locality, where it is discharging its waste.
21.That the petitioner further humbly states and submits that the place where Oswal Industry has been established, is primarily an area where people eke out their living by aquaculture and/or capturing fishes. Because of the industrial effluents full with obnoxious substances, the water streams of creeks and rivers get seriously contaminated causing death of the aquatic species including the species of prawn, crabs and even the 'endangered' turtles. Unfortunately the Opposite Party No. 7 is not paying any heed for the same. On the contrary, despite the fact that it does not have a valid Consent Order, it is still operating, which is not only a violation of the provisions of the environmental laws but also attracts the penal provisions.
22.That it is further humbly submitted that the though the State Pollution Board has not accorded any further consent after 31.3.2000, it has not taken any positive steps as provided under the enactments to close down the industry (Opp. Party No. 7).
It is further humbly submitted that the nuisance caused by pollution of river Mahanadi and the creeks is a public nuisance and is wide-spread in range and indiscriminate in its effect. This not only kills the lives of aquatic species, but also causes a great hurdle to the fundamental right of every citizen in the locality in the matter of pursuing the trade/occupation of their choice. The inhabitants of the locality who depend upon aqua culture/fishing to earn their livelihood are deprived of the same, because of the pollution caused by Opposite Party No. 7.
23. The petitioner further humbly submits that it also causes a breach of the fundamental rights conferred under Article 21 of the Constitution of India by causing air pollution and water pollution as well. The Opposite party No. 7 has posed a threat to the human habitation in the locality and it is an established truth that, because of the pollution caused by the Opposite Party No.7, the inhabitants of the locality are facing problems in the eye sight, skin and respiratory organs. The wrongful action and inaction of the Opposite Party No. 7 has not destroyed the ecology of the areas but also has posed a great threat to the safety of human life. The Constitution of India under Article 48-A prescribes that the State shall endeavour to protect and improve the environment and to safeguard the flora and fauna of the country. Under Article 52f-A (g) it is the fundamental duty of every citizen of India to protect and improve the natural environment including forests, lakes; rivers and wild life and to have compassion for living creatures. Therefore, the opposite Party No. 7 by its high-handed action has not only caused violation of the environmental laws but also has caused breach of the fundamental rights of the citizens and also has caused breach of the fundamental duties that it is expected / supposed to carry out.
24.That the petitioner further humbly states that in the year 2002 there has been a Joint Inspection of the Plant run by Opposite Party No. 7, and the inspection was caused by the Ministry of Environment and Forests and Wildlife, Government of India, Central Pollution Control Board, Delhi and the State Pollution Control Board, Orissa. The report spells out that the Opposite Party No. 7 has been discharging waste water of extremely poor quality and the gypsum management in the industry has resulted in pollution of Atharabanki Creek and surrounding areas. The hazardous waste management is far from satisfactory and the industry has not taken authorization for hazardous waste disposal as per rules. The said industry does not have any monitoring system at any place, which is essential to ensure that the water surrounding the industry is not contaminated. The Committee suggested that a closure direction should be issued to the Company, which had in fact been issued long before by the State Board to Opposite Party No. 7. But unfortunately no measure has been taken by the State Government to see that the industry is closed. A copy of the report submitted by the aforesaid Committee is annexed to this petition as ANNEXURE - 8.
Very recently on the 17th June, 2002, a news item was published in the Times of India reflecting the Report under Annexure - 7, wherein suggestions were given to shut down the plant of the Opposite Party No. 7 immediately. A copy of the news item published in the Times of India dated 17.6.2002 is annexed herewith as ANNEXURE -9.
ANNEXURE - 9
That therefore in view of the above, when one single industry is causing environmental hazards, health hazards and all threats of possible hazards, it is the fundamental duty of the Government to see that the industry is closed. The very existence of the Opposite Party No. 7 in the locality without adhering to the environmental norms goes against the very root of the human habitation. The human habitation in a particular locality is always of a larger importance, especially when the area where the Opposite Party No. 7 has been set up is flooded with other industries and Paradeep Port Trust, which is a pride of our State. Therefore in order to secure the larger interest, it is the duty of the State Government and the State Machineries to see that a smaller interest in the form of Opposite Party No. 7 is done away with on the rudimentary and fundamental principle that the smaller interest has to give way to the larger interest.
25.That in view of the above, the petitioner has no other alternative but to approach this Hon'ble Court by invoking its extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India.
P R A Y E R
The petitioner, therefore, prays that this Hon'ble Court may be graciously pleased to admit this writ application, issue rule nisi calling upon the Opposite party No. 7 to show cause as to why necessary steps shall not be taken for closure of Opposite Party No. 7 and /or in the alternative, why the Opposite Party No. 7 shall not be directed to temporarily close its unit until conditions fixed by the State Pollution Control Board are fulfilled, and if the opposite parties fail to show cause or insufficient cause, issue a writ in the nature of Mandamus directing the Opposite party No. 7 to temporarily close its industry until compliance of the terms and conditions and/or the norms fixed by the Pollution Control Board and further issue any other writ/writs, direction/directions, order/orders which this Hon'ble Court deem fit and proper;
And for this act of kindness, the petitioner shall, as in duty bound, ever pray.
By the petitioner through
Cuttack ,
The July, 2002.
Advocate
AFFIDAVIT
I, Smt. Dolli Dash, aged 35 years, daughter of Sri Rabi Dash at and P.O. Tarpur, District- Jagatsinghpur, presently residing at Ganesh Ghat, Bakharabad, Cuttack-2, do hereby solemnly affirm and state as follows:
Identified by
DEPONENT
Advocate's Clerk
Certified that due to non-availability of carridge papers, this petition has been typed on plain thick paper.
Advocate