Gujarat High Court
Swastik Organics - Through Partner ... vs State Of Gujarat on 8 May, 2018
Bench: M.R. Shah, A.Y. Kogje
C/SCA/1414/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1414 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
and
HONOURABLE MR.JUSTICE A.Y. KOGJE Sd/
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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SWASTIK ORGANICS THROUGH PARTNER GAUTAMBHAI DOSHI
Versus
STATE OF GUJARAT
=============================================
Appearance:
SHRI DHAVAL DAVE, SR. ADVOCATE for HL PATEL ADVOCATES(2034) for the
PETITIONER(s) No. 1
MR RONAK RAVAL, ASSISTANT GOVERNMENT PLEADER(1) for the RESPONDENT(s) No.
1,3
MR JV JAPEE(358) for the RESPONDENT(s) No. 10,4,5,6,7,8,9
MR VAIBHAV A VYAS(2896) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 08/05/2018
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] By way of this petition under Article 226 of the Constitution of India, the petitioner herein - original respondent - M/s. Swastik Page 1 of 30 C/SCA/1414/2011 CAV JUDGMENT Organics has prayed for an appropriate writ, direction and order to quash and set aside the impugned judgment and order dated 15.01.2011 passed by the learned Principal District Judge, Sabarkantha, at Himatnagar in Special Civil (Environment) Application No.1/2011 by which the learned Judge has directed the petitioner herein to pay the compensation to the original applicants for the damages caused by the petitioner - industry to the agricultural lands of the original applicants situated surrounding the factory premises of the petitioner herein and also for causing serious environmental pollution by the petitioner - industrial unit.
[2.0] The facts leading to the present Special Civil Applications in nutshell are as under:
[2.1] That the petitioner herein had set up a dyeing and manufacturing unit at village Boriya Khurad, District Sabarkantha for manufacturing dyes and intermediates. That the petitioner herein - industrial unit was alleged to be found discharging chemical and other toxic subject into the underground borewells, which in turn contaminated the water in nearby borewells causing serious water pollution and health hazards to the villagers and farmers. The aforesaid fact was noticed by the Environmental Engineer of the Gujarat Pollution Control Board (hereinafter referred to as "GPCB") in an inspection conducted on 19.04.2004. The samples of water from the borewells were taken by the Officers of the GPCB and were tested. It was revealed that there was contamination of underground water in the nearby areas due to discharge of effluents into the underground borewells by the Page 2 of 30 C/SCA/1414/2011 CAV JUDGMENT petitioner herein - industrial unit. Consequently, a closure order dated 13.04.2004 was issued to the petitioner herein - industrial unit by the GPCB in exercise of powers conferred under the Water Act, the Air (Prevention & Control of Pollution) Act, 1981 (hereinafter referred to as "Water Pollution Control Act") and the Hazardous Waste (Management & Handling) Rules, 1989 framed under the Environment (Protection) Act, 1986, (for short "the Environment Act"). It appears that an application preferred by the petitioner herein - industrial unit for manufacture of certain products was also rejected. That thereafter the GPCB had to take strong measures due to the objections raised by the villagers and ultimately the factory of the petitioner - industrial unit was closed down, but the problems of the nearby villagers still subsisted as the pollution caused by the petitioner herein - industrial unit was found to be a perennial problem and the contaminated water continued to cause serious health hazards. However, thereafter, as no further steps were taken by the GPCB to check and curb the pollution of the underground water at village Boriya Khurad and to take appropriate action against the offending industrial unit responsible for the pollution of the underground water and also take appropriate steps against the erring officers and therefore, one Solanki Jasvantsinh Kalusinh approached this Court by way of Special Civil Application No.9699/2008 for an appropriate writ, direction and order directing the authorities to take appropriate steps to check and curb the pollution of the underground water at village Boriya Khurad and to take appropriate action against the offending industrial units responsible for the pollution of the underground water and also take appropriate steps against the Page 3 of 30 C/SCA/1414/2011 CAV JUDGMENT erring officers and also for the consequential reliefs. At this stage it is required to be noted that in the said proceedings the petitioner herein was also joined as party respondent No.4 who filed a detailed counter affidavit. It was stated that having noticed the pollution caused by the discharge of the effluents into the bore wells of the factory, factory was closed down and claims made by few farmers were found tenable and were paid compensation. It was further stated that one Arjunsinh Mansinh Solanki did not come forward to receive the compensation, and in turn he has filed Special Civil Suit No.17 of 2007 in the Court of learned Civil Judge (S.D.), Himmatnagar, praying for compensation of Rs.10 lakh with 9% interest and the said suit is pending. It was further stated that another person has filed Special Civil Application No.6739 of 2005 before this Court and considering that the explanations given by officials of the GPCB were found satisfactory and since the petitioner had not claimed any compensation against it, this Court disposed of the petition giving no further direction. In the said petition the GPCB who was joined as party respondent No.2 also filed a counter affidavit. In the counter affidavit the GPCB stated as under:
"That since GPCB came to know about the environmental pollution, they took immediate action and ordered closure of the Unit and the Collector also passed an order whereby electricity connection was also disconnected on 31.08.2004, and the unit is not functioning. Another affidavit was also filed by 2nd respondent GPCB since this Court directed it to conduct another inspection about the pollution caused by the 4th respondent unit due to discharge of effluents into the borewells without taking precautionary measures. Inspection was carried on 20.01.2009 and samples were tested. Inspection report suggested that water of 3 borewells were not potable out of 6 borewells. District Collector was also Page 4 of 30 C/SCA/1414/2011 CAV JUDGMENT requested to inform the Irrigation Department and also Gujarat Water Supply and Sewerage Board to take appropriate steps. Further, it is also stated that water from borewells were generally used for irrigation purposes and the domestic water for drinking purposes is supplied by a separate pipeline coming from village Piplodi. It is stated that GPCB is also alive to the issue of damage already caused by the unit while it was in operation."
[2.2] That thereafter, after hearing the learned Counsel appearing for respective parties including the learned Counsel for the petitioner herein as well as the learned Counsel appearing on behalf of the GPCB and after having noted that the damage caused has to be ascertained and legitimate compensation is to be paid to the persons affected and thereafter having noted that in few of the cases affected parties have infact approached civil Court which as such cannot be said to be a speedy remedy, the Division Bench of this Court disposed of the said Special Civil Application and directed the GPCB to see that as soon as on inspection it finds that an industrial unit is causing serious environment pollution, the matter be immediately reported to the Principal District Judge and the District Collector of the concerned District and the District Judge in consultation with the District Collector will take immediate steps to depute a team consisting of members of the GPCB, District Collector, Secretaries of the Forest and Environment Department, Irrigation and Water Resources Department, Animal Husbandry Department, President of Gram Panchayat/Municipality or their representatives for inspection so as to assess the extent of pollution and harm caused to the environment. That thereafter the Committee would issue notice to the polluter as such report to the District Judge and thereafter the District Judge would examine and Page 5 of 30 C/SCA/1414/2011 CAV JUDGMENT decide about the damage caused to the environment and direct payment of reasonable amount to the "environment fund" to be maintained by the State Government and the compensation payable to the affected parties will also be determined by the District Judge after hearing the polluter and take note of the objections, if any. The Division Bench also observed that the order of District Judge should be treated as decree and same can be executed. While issuing the aforesaid directions the Division Bench observed as under:
"We are now in a situation where the damage caused has to be assessed and legitimate compensation is to be paid to the persons affected. We have indicated that in few cases the affected parties have approached Civil Courts which in our view is not a speedy remedy. There must be some mechanism so that damage caused can be assessed as early as possible and the victims be compensated. We cannot endorse the view that agriculturists/farmers/villagers should spend money from their pockets towards litigation expenses and wait for the verdict of a civil court, subject to further appeals to the higher forums. In our view, it is the primary responsibility of the GPCB. If it discharges its official duties effectively and properly, such situation would not occur. Why should farmers be penalized for the inaction of the officers of the GPCB and due to the wrongful discharge of effluents into water courses. In such a situation, the only course open to us is to give a direction to the GPCB to see that as soon as on inspection it finds an industrial unit is causing serious environmental pollution, the matter may immediately be reported to the Principal District Judge and the District Collector of the concerned District. District Judge in consultation with the District Collector will take immediate steps to depute a team consisting of members of GPCB, District Collector, Secretaries of Forest and Environment Department, Irrigation and Water Resources Department, Animal Husbandry Department, President of Gram Panchayat/Municipality or their representatives for inspection so as to assess the extent of pollution and harm caused to the environment. Committee would issue notice to the polluter, assess the compensation and submit its report to the District Judge. District Judge Page 6 of 30 C/SCA/1414/2011 CAV JUDGMENT would examine and decide about the damage caused to the environment and direct payment of a reasonable amount to the "Environment Fund" to be maintained by the State Government. Compensation payable to the affected parties will also be determined by the District Judge after hearing the polluter and taking note of objections, if any. The District Judge can also determine the costs incurred by the Committee. The order of the District Judge would be treated as a decree and the same can be executed.
We have seen in several instances courts find it extremely difficult to assess the extent of environmental pollution caused by various units and as a result of which the courts also face difficulties to determine the compensation legitimately due to the affected parties. It is, therefore, highly imperative that in such cases of environmental pollution, it is the responsibility of the respondent GPCB to bring it to the knowledge of the District Judge and District Collector of the District for assessing compensation due to environmental degradation caused by the respective industries.
These directions shall be followed by all the authorities concerned. Since no compensation, as such, has been claimed in this writ petition, we are not giving a further direction in that regard."
[2.3] It appears that while issuing the aforesaid directions the Division Bench had taken into consideration the decision of the Hon'ble Supreme Court in the case of Vellore Citizens Welfare Forum vs. Union of India and Others reported in AIR 1996 SC 2715 and in the case of Indian Council for Enviro Legal Action & Ors. vs. Union of India and Others reported in JT 1995 (9) SC 427 and in the case of Deepak Nitrite Ltd. vs. State of Gujarat and Ors. reported in AIR 2004 SC 3407 and the decision of the Division Bench of this Court in the case of Deepak Nitrite Ltd. vs. State of Gujarat and Ors. reported in 1997(1) GLR 1062.
[2.4] It appears that thereafter and pursuant to the aforesaid Page 7 of 30 C/SCA/1414/2011 CAV JUDGMENT direction issued by the Division Bench of this Court in Special Civil Application No.9699/2008, the District Judge, Sabarkantha, at Himatnagar initiated the proceedings for determination of the compensation which was numbered as Special Civil (Environment) Application No.1/2011. It appears that prior thereto and in compliance of the order of the Division Bench of this Court in Special Civil Application No.9699/2008, the District Judge vide letter dated 19.12.2009 communicated to the District Collector, Sabarkantha, at Himatnagar and asked the Collector to send proposal for forming the committee. The District Collector, Sabarkantha, at Himatnagar proposed for deputing the following members in team, which was accepted by the District Judge and thereby deputed a team consisting of following members.
1. Representative of Gujarat Pollution Control Board (GPCB)
2. District Collector, Sabarkantha @ Himatnagar
3. Secretaries of Forest and Environment Department
4. Irrigation and Water Resources Department
5. Animal Husbandry Department
6. President / Sarpanch of Gram Panchayat [2.5] It appears that the said Committee was asked to discuss and to take inspection of the place and to give its report to assess the compensation to be paid to the affected persons. That thereafter the SubDivisional Magistrate, Sabarkantha @ Himatnagar submitted the final report to the District Magistrate, Sabarkantha at Himatnagar on 09.07.2010. That thereafter on 14.07.2010, a final report was submitted from the office of the District Collector to the Page 8 of 30 C/SCA/1414/2011 CAV JUDGMENT District Judge. The notice was issued to the petitioner herein - M/s. Swastik Organics. The petitioner herein filed their objection on 15.09.2010 (same shall be dealt with in detail hereinafter). It was inter alia contended on behalf of the petitioner - industrial unit that in January 2001, due to earthquake or because of unknown reason, the ground storage tank got torn and accidentally the polluted water without their knowledge went underground, and in July 2003, due to heavy rain, the rain water and polluted water got mixed causing problem of water pollution. It was further submitted that corrective measures were taken and infact thereafter the factory was closed. It was further submitted that affected persons were infact paid necessary compensation to the BoriyaKhurad Village Panchayat. It was further submitted that the affected persons, before the responsible persons of the factory, have accepted the fact in writing of having received the satisfactory compensation for the damage and infact they signed the same. That thereafter by detailed impugned judgment and order the learned District Judge has ordered the petitioner to deposit the amount of compensation as mentioned in the operative portion of the order.
[2.6] Feeling aggrieved and dissatisfied with the impugned judgment and order dated 15.01.2011 passed by the learned District Judge in Special Civil (Environment) Application No.1/2011, the petitioner - industrial unit - original opponent has preferred the present Special Civil Application under Article 226 of the Constitution of India.
[3.0] Shri D.C. Dave, learned Counsel has appeared on behalf of Page 9 of 30 C/SCA/1414/2011 CAV JUDGMENT the petitioner, Shri J.V. Japee, learned Advocate has appeared on behalf of the original applicants - respective agriculturists, Shri Vaibhav Vyas, learned Advocate has appeared on behalf of the respondent No.2 - GPCB and Shri Ronak Raval, learned Assistant Government Pleader has appeared on behalf of the respondent Nos.1 and 3 - Collector, Sabarkantha and State of Gujarat.
[4.0] Shri Dave, learned Counsel appearing on behalf of the petitioner has vehemently submitted that the impugned order passed by the learned Principal District Judge, Sabarkantha, at Himatnagar is absolutely without jurisdiction and authority under the law.
[4.1] It is further submitted by Shri Dave, learned Counsel appearing on behalf of the petitioner that even otherwise the impugned order passed by the learned Principal District Judge awarding the compensation to the concerned agriculturists is in breach of principles of natural justice as no adequate and proper opportunity has been given to the petitioner.
[4.2] It is further submitted by Shri Dave, learned Counsel appearing on behalf of the petitioner that the learned Principal District Judge, Sabarkantha, at Himatnagar has in the present case assumed the jurisdiction pursuant to the directions and the order passed by the Division Bench of this Court in Special Civil Application No.9699/2008. It is vehemently submitted by Shri Dave, learned Counsel appearing on behalf of the petitioner that as such the order passed by the Division Bench of this Court in Special Page 10 of 30 C/SCA/1414/2011 CAV JUDGMENT Civil Application No.9699/2008 conferring the jurisdiction upon the learned Principal District Judge to determine and assess the compensation was a nullity and therefore, the same cannot be said to be a legal order in the eye of law.
[4.3] It is further submitted by Shri Dave, learned Counsel appearing on behalf of the petitioner that as such any dispute between the parties more particularly with respect to the assessment of the compensation for damages shall be the subject matter of civil suit before the Civil Court and cannot be the subject matter before the learned Principal District Judge. It is submitted that the remedy for such a dispute is provided under Section 9 of the CPC. It is submitted that therefore any deviation from the above and conferring the jurisdiction upon any authority / Court would be wholly without jurisdiction and nullity. It is submitted that therefore the exercise of the jurisdiction by the learned Principal District Judge pursuant to the directions issued by the decision of this Court in Special Civil Application No.9699/2008 is based on the order which is a nullity and therefore, the impugned order deserves to be quashed and set aside.
[4.4] It is further submitted by Shri Dave, learned Counsel appearing on behalf of the petitioner that even the earlier order passed by the Division Bench of this Court in Special Civil Application No.9699/2008 to treat the order that may be passed by the learned Principal District Judge as a decree and the consequent order passed by the learned Principal District Judge to treat the impugned order as a decree would be contrary to section 2(2) of Page 11 of 30 C/SCA/1414/2011 CAV JUDGMENT the CPC.
In support of his above submissions that the earlier order passed by the Division Bench of this Court confirming the jurisdiction upon the learned Principal District Judge, Sabarkantha, at Himatnagar was a nullity and therefore, as such the learned Principal District Judge had no jurisdiction to decide, adjudicate and assess the compensation and that the defence of nullity can be set up in a collateral proceedings at any stage and without challenging the original order which is a nullity, Shri Dave, learned Counsel appearing on behalf of the petitioner has relied upon the following decisions of the Hon'ble Supreme Court.
1. Amrit Bhikaji Kale and Others vs. Kashinath Janardhan Trade and Anr.
(1983) 3 SCC 437
2. Balvant N. Viswamitra and Others vs. Yadav Sadashiv Mule (Dead) Through LRs and Others (2004) 8 SCC 706
3. Harshad Chiman Lal Modi vs. DLF Universal Ltd. and Another (2005) 7 SCC 791 [4.5] Shri Dave, learned Counsel appearing on behalf of the petitioner has also relied upon the following decisions of the Hon'ble Supreme Court in support of his above submission that Article 226 of the Constitution of India does not confer jurisdiction upon the High Court to create a special Forum and procedure for adjudication.
1. Mallikarjuna Rao and Others vs. State of Andhra Pradesh and Others (1990) 2 SCC 707 Page 12 of 30 C/SCA/1414/2011 CAV JUDGMENT
2. Common Cause (A Regd. Society) vs. Union of India and Others (2008) 5 SCC 511
3. Dayaram vs. Sudhir Batham and Others (2012) 1 SCC 333
4. Indian Soaps and Toiletries Makers Association vs. Ozair Husain and Ors.
(2013) 3 SCC 641 [4.6] Shri Dave, learned Counsel appearing on behalf of the petitioner has further submitted that even otherwise on merits the learned Judge has materially erred in assessing the compensation and fastening the liability upon the petitioner. It is submitted by Shri Dave, learned Counsel appearing on behalf of the petitioner that as such due to the earthquake in the year 2001, crack came to be developed in the well and due to that there was a leakage in the earth and therefore, it was an act of God. It is submitted that therefore when the accident was the result of act of God, the doctrine of absolute liability cannot be extended. In support of his above submissions Shri Dave, learned Counsel appearing on behalf of the petitioner has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Vohra Sadikbhai Rajakbhai and Others vs. State of Gujarat and Others reported in (2016) 12 SCC 1.
[4.7] It is further submitted by Shri Dave, learned Counsel appearing on behalf of the petitioner that even otherwise the impugned order passed by the learned Principal District Judge, Sabarkantha, at Himatnagar deserves to be quashed and set aside Page 13 of 30 C/SCA/1414/2011 CAV JUDGMENT on the ground that while passing the impugned order the learned Principal District Judge has not properly appreciated and considered the fact that as such the petitioner paid the amount of compensation for the damages caused to some of the agriculturists and even for which some of them issued the receipts. It is submitted that therefore the learned Principal District Judge has materially erred in passing the impugned order which deserves to be quashed and set aside.
Making above submissions and relying upon above decisions, it is requested to allow the present petition.
[5.0] Present petition is vehemently opposed by Shri Japee, learned Advocate appearing on behalf of the original applicants - agriculturists whose lands have been earlier damaged.
[5.1] Shri Japee, learned Advocate appearing on behalf of the private respondents as vehemently submitted that impugned order has been passed by the learned Principal District Judge, Sabarkantha, at Himatnagar after giving fullest opportunity to the petitioner and pursuant to the order passed by the Division Bench of this Court in Special Civil Application No.9699/2008 and therefore, the same is not required to be interfered by this Court in exercise of powers under Article 226/227 of the Constitution of India.
[5.2] It is vehemently submitted by Shri Japee, learned Advocate appearing on behalf of the original applicants that as such the order passed by the Division Bench of this Court in Special Civil Page 14 of 30 C/SCA/1414/2011 CAV JUDGMENT Application No.9699/2008 by which the respective agriculturists whose lands came to be damaged were relegated to approach the learned Principal District Judge, Sabarkantha, at Himatnagar and the Division Bench directed the learned Principal District Judge, Sabarkantha, at Himatnagar to adjudicate the assessment after giving opportunity to all the parties and only thereafter the learned Principal District Judge, Sabarkantha, at Himatnagar has passed the impugned order. It is submitted that as such the petitioner was also party to the earlier petition being Special Civil Application No.9699/2008. It is submitted that the order passed by the Division Bench of this Court in Special Civil Application No.9699/2008 has attained the finality and not only the petitioner has not challenged the same but thereafter even the petitioner participated in the proceedings before the learned Principal District Judge, Sabarkantha, at Himatnagar. It is submitted that therefore now it is not open for the petitioner to contend that the learned Principal District Judge, Sabarkantha, at Himatnagar had no jurisdiction and/or the order passed by the Division Bench of this Court in Special Civil Application No.9699/2008 is a nullity. It is submitted that as such the objection is thoroughly misconceived and nothing but an afterthought after having lost before the learned Principal District Judge, Sabarkantha, at Himatnagar.
[5.3] It is further submitted by Shri Japee, learned Advocate appearing on behalf of the original applicants that even otherwise the order passed by the Division Bench in Special Civil Application No.9699/2008 cannot be said to be a nullity as now sought to be contended on behalf of the petitioner. It is vehemently submitted Page 15 of 30 C/SCA/1414/2011 CAV JUDGMENT by Shri Japee, learned Advocate appearing on behalf of the original applicants that as such earlier the agriculturists approached this Court by way of Special Civil Application No.9699/2008 making a grievance about the inefficiency and incapacity of the officers of the Pollution Control Board to control the contamination of underground water in Boriya Khurad village causing serious health hazards. It is submitted that at the time of hearing of the said Special Civil Application it was found that it was the petitioner who caused pollution by discharge of effluents into borewells of the factory. It is submitted that the petitioners of that Special Civil Application also claimed the compensation for the damages, however considering the decision of the Hon'ble Supreme Court and considering the provisions of the Water Pollution Control Act, the Division Bench of this Court thought it fit to evolve the mechanism for ascertaining / assessing the compensation for the damages instead of assessing the same in exercise of powers under Article 226 of the Constitution of India and thereafter directed to evolve the mechanism and ultimately directed the learned Principal District Judge, Sabarkantha, at Himatnagar to assess the damage and the compensation after hearing the petitioner / polluter and taking note of the objections, if any, the same cannot be said to be nullity and/or wholly without jurisdiction. It is submitted that even otherwise as such as the order passed by the Division Bench has attained the finality and thereafter even the petitioner participated in the proceedings before the learned Principal District Judge, Sabarkantha, at Himatnagar, thereafter it is not open for the petitioner to make the grievance before this Court in the present proceedings challenging the impugned order passed by the learned Page 16 of 30 C/SCA/1414/2011 CAV JUDGMENT Principal District Judge, Sabarkantha, at Himatnagar as if this Court is sitting as an Appellate Court over the order passed by the Division Bench of this Court in Special Civil Application No.9699/2008.
[5.4] It is further submitted by Shri Japee, learned Advocate appearing on behalf of the original applicants that the impugned order has been passed by the learned Principal District Judge, Sabarkantha, at Himatnagar after giving ample opportunity of hearing to the petitioner. It is submitted that at no point of time the petitioner made any grievance before the learned Principal District Judge, Sabarkantha, at Himatnagar that the Committee had not issued notice to the petitioner before assessing the compensation to be paid to the affected persons and the cost of reversal of damages caused to the environment. It is submitted that the learned Principal District Judge, Sabarkantha, at Himatnagar had given ample opportunity of hearing to the petitioner in respect of the report submitted by the Committee. It is submitted that the petitioner did raise the objections on merits against the report before the learned Principal District Judge, Sabarkantha, at Himatnagar, but the petitioner had not raised any objection whatsoever regarding the alleged nonissuance of the notice by the Committee.
[5.5] It is further submitted that it is not true that the petitioner firm had carried out its operations in conformity with the Environment Laws. It is submitted that infact the petitioner has caused collateral damage to the underground water. It is submitted Page 17 of 30 C/SCA/1414/2011 CAV JUDGMENT that the petitioner firm during its operations, had discharged the chemical waste water and effluents in the underground borewell of the factory. It is submitted that the said effluents have polluted the underground water of the entire area and consequently, highly contaminated water in red colour was coming out from borewells and wells, which is highly hazardous for irrigation and human consumption. It is further submitted by Shri Japee, learned Advocate appearing on behalf of the original applicants that it is not true that the industrial effluents were being stored in the concrete cement underground storage tank. It is submitted that if there was a proper storage, the said effluents would not have mixed with the underground water of the area. It is submitted that there was no treatment of the said industrial effluents which had mixed in the underground water on account of lack of proper storage facility.
[5.6] It is further submitted by Shri Japee, learned Advocate appearing on behalf of the original applicants that it is not true that due to earthquake, the concrete cement tanks had developed cracks. It is submitted that on account of improper storage facility of the substandard material, liquid industrial effluents had percolated and mixed with the underground water of the area. It is submitted that therefore as such the petitioner is not justified in shifting the blame on the natural factors concealing their absolute negligence by allowing the industrial effluents to submerge into the underground water. It is submitted that as such the petitioner was compelled to stop the manufacturing activities by the concerned authorities as it was found that because of the discharge of the Page 18 of 30 C/SCA/1414/2011 CAV JUDGMENT effluents it had affected the underground water and the borewells and wells.
[5.7] Now, so far as the submission on behalf of the petitioner that earlier the petitioner paid amount of compensation to some of the farmers who issued the receipts and thereafter it is not open to claim further amount of compensation is concerned, it is submitted by Shri Japee, learned Advocate appearing on behalf of the original applicants that on account of the gravity of the situation and to avoid / abstain from the legal consequences, the petitioner had initially tried to win over the farmers by giving them petty amounts and in lieu of the said amount paid to the farmers, they were compelled to give some writings in favour of the petitioner. It is submitted that infact the petitioner has taken undue advantage of the illiteracy and poverty of the farmers. It is submitted that the alleged acceptance of the adhoc amount from the petitioner and the execution of the socalled agreements do not preclude the farmers from claiming just and fair compensation for the damages and loss suffered by them over the years. It is submitted that contaminated water is not fit for irrigation or human consumption and farmers have suffered huge losses for the want of irrigation facility on account of contamination of underground water. It is further submitted by Shri Japee, learned Advocate appearing on behalf of the original applicants that earlier Special Civil Application No.6739/2005 was disposed of in view of the report submitted by the concerned authorities that the unit was closed. It is submitted that the application given by the petitioner Unit for consent was rejected by the GPCB and closure order was issued by Page 19 of 30 C/SCA/1414/2011 CAV JUDGMENT the Board. That the electricity supply was also disconnected. It is submitted that accordingly as per the directions given by the concerned authority, unit was closed. It is submitted that as on today also, red and contaminated water is coming out of the bore wells. It is submitted that the petitioner unit has on account of its operations over the last many years, discharged industrial effluents in the underground water in abundance and therefore, even after 5 years of closure, the underground water has remained contaminated. It is submitted that this shows the extent of damage caused to the underground water on account of operation of the unit.
Making above submissions it is requested to dismiss the present petition.
[6.0] Present petition is also vehemently opposed by Shri Vaibhav Vyas, learned Advocate appearing on behalf of the Pollution Control Board. It is submitted that earlier it was found on inspection by the GPCB that because of the discharge of the effluent by the petitioner unit in the borewell, closure order was passed by the GPCB. It is submitted that therefore in earlier round of litigation, pollution caused by the petitioner by discharge of effluents in the borewell and ultimately affecting the underground water has been taken note of by the Division Bench in the earlier round of litigation. It is submitted that Environment Engineer of the GPCB filed the reply in Special Civil Application No.9699/2008 stating that the underground water is contaminated for which the petitioner was responsible. It is submitted that thereafter even the GPCB had given the notice for assessing the cost of reversal of Page 20 of 30 C/SCA/1414/2011 CAV JUDGMENT damages caused to the environment. It is submitted that thereafter, after receiving the report from the Committee regarding assessment of compensation which was as per the directions issued by the Division Bench of this Court in Special Civil Application No.9699/2008, when the learned Principal District Judge, Sabarkantha has passed the impugned order, the same is not required to be interfered with by this Court.
[6.1] Shri Vyas, learned Advocate appearing on behalf of the GPCB has fully supported the impugned order passed by the learned Principal District Judge by which the petitioner is directed to pay the damages / compensation to the affected farmers / agriculturists. He has vehemently submitted that those who pollute the nature and/or environment by whatever means / measure either polluting the air and/or water and/or earth, they must pay the compensation for the damages and they must pay the cost of reversal of damages.
[7.0] Heard learned Counsel appearing for respective parties at length.
[7.1] At the outset it is required to be noted that earlier one Solanki Motisinh Magansinh of village Boriya Khurad, District Sabarkantha sent a typed application dated 06.04.2005 to the Hon'ble The Chief Justice of this Court making grievance with respect to pollution and the damage caused to the underground water, by three industries in the area including the petitioner herein. In exercise of suo moto jurisdiction the Hon'ble The Chief Page 21 of 30 C/SCA/1414/2011 CAV JUDGMENT Justice treated the said letter as a writ petition which was numbered as Special Civil Application No.6739/2005. At the time of hearing of the said Special Civil Application an affidavit in reply was filed on behalf of the GPCB stating that three industries which are found to be responsible for pollution affecting the underground water, borewells / wells including the petitioner, the closure order has been passed and all the three industries / factories including the petitioner have been closed and even the electricity supply has also been disconnected. Therefore, the Division Bench disposed of the said Special Civil Application by order dated 07.10.2005. However, thereafter, no further steps were taken by the Pollution Control Board to control the contamination of the underground water and to prevent and control the water pollution, some of the agriculturists / farmers of the nearby area once again approached this Court by way of Special Civil Application No.9699/2008 inter alia stating that earlier the GPCB had to take strict measures due to the objections raised by the villagers and ultimately the factory was closed down but the problems of the complainant and other villagers still subsist. It was submitted that pollution caused by the petitioner's factory is a perennial problem and the contaminated water still causes serious health hazards and the pollution already caused is still to be eradicated and therefore, it was requested to issue directions to take appropriate steps to check and curb the pollution of the underground water at village Boriya Khurad and to take appropriate action against the offending industrial unit responsible for the pollution of the underground water and also take appropriate steps against the erring officers and also for the Page 22 of 30 C/SCA/1414/2011 CAV JUDGMENT consequential reliefs. At this stage it is required to be noted that in the said Special Civil Application the petitioner was also joined as a party respondent who also filed a detailed counter affidavit. In the said proceedings the GPCB also filed the counter affidavit. It was stated on behalf of the GPCB that since the GPCB came to know about the the environmental pollution, they took immediate action and ordered closure of the unit and the Collector also passed an order whereby the electricity connection was also disconnected and the unit is not functioning. Another affidavit was filed by the Pollution Control Board since this Court directed it to conduct another inspection about the pollution caused by the petitioner herein due to discharge of effluents into the borewells without taking precautionary measures. The inspection was carried on 20.01.2009 and samples were tested. Inspection report suggested that the water of three borewells were not potable out of six bore wells. It was stated by the GPCB that the GPCB is also alive to the issue of damage already caused by the unit while it was in operation. That thereafter, after considering the decisions of the Hon'ble Supreme Court in the case of Vellore Citizens Welfare Forum (Supra), Indian Council for Enviro Legal Action & Ors. (Supra) and Deepak Nitrite Ltd. (Supra), the Division Bench thought it fit to exercise the powers under Article 226 of the Constitution of India to assess the legitimate compensation to evolve the mechanism and thereafter directed the District Collector to ascertain and/or assess the damages / harm caused to the environment. The mechanism which was directed by the Division Bench reads as under:
"We are now in a situation where the damage caused has to Page 23 of 30 C/SCA/1414/2011 CAV JUDGMENT be assessed and legitimate compensation is to be paid to the persons affected. We have indicated that in few cases the affected parties have approached Civil Courts which in our view is not a speedy remedy. There must be some mechanism so that damage caused can be assessed as early as possible and the victims be compensated. We cannot endorse the view that agriculturists/farmers/villagers should spend money from their pockets towards litigation expenses and wait for the verdict of a civil court, subject to further appeals to the higher forums. In our view, it is the primary responsibility of the GPCB. If it discharges its official duties effectively and properly, such situation would not occur. Why should farmers be penalized for the inaction of the officers of the GPCB and due to the wrongful discharge of effluents into water courses. In such a situation, the only course open to us is to give a direction to the GPCB to see that as soon as on inspection it finds an industrial unit is causing serious environmental pollution, the matter may immediately be reported to the Principal District Judge and the District Collector of the concerned District. District Judge in consultation with the District Collector will take immediate steps to depute a team consisting of members of GPCB, District Collector, Secretaries of Forest and Environment Department, Irrigation and Water Resources Department, Animal Husbandry Department, President of Gram Panchayat/Municipality or their representatives for inspection so as to assess the extent of pollution and harm caused to the environment. Committee would issue notice to the polluter, assess the compensation and submit its report to the District Judge. District Judge would examine and decide about the damage caused to the environment and direct payment of a reasonable amount to the "Environment Fund" to be maintained by the State Government. Compensation payable to the affected parties will also be determined by the District Judge after hearing the polluter and taking note of objections, if any. The District Judge can also determine the costs incurred by the Committee. The order of the District Judge would be treated as a decree and the same can be executed.
We have seen in several instances courts find it extremely difficult to assess the extent of environmental pollution caused by various units and as a result of which the courts also face difficulties to determine the compensation legitimately due to the affected parties. It is, therefore, highly imperative that in such cases of environmental pollution, it is Page 24 of 30 C/SCA/1414/2011 CAV JUDGMENT the responsibility of the respondent GPCB to bring it to the knowledge of the District Judge and District Collector of the District for assessing compensation due to environmental degradation caused by the respective industries."
That thereafter after considering the report submitted by the Committee constituted as per the directions issued by this Court in Special Civil Application No.9699/2008 and after giving fullest opportunity to the petitioner and even after considering the objections raised by the petitioner, thereafter, the learned Principal District Judge, Sabarkantha, at Himatnagar has passed the impugned order, which is the subject matter of this petition under Article 226/227 of the Constitution of India.
[7.2] It is the case on behalf of the petitioner that the impugned order passed by the learned Principal District Judge, Sabarkantha is wholly without jurisdiction as the order passed by the Division Bench of this Court in Special Civil Application No.9699/2008 under which the learned Principal District Judge, Sabarkantha has resumed the jurisdiction is a nullity. The aforesaid objection is required to be rejected outright. The same is nothing but an afterthought and only with a view to avoid the liability to pay the compensation / damages suffered and it can be said that such an objection is raised with malafide intention so as to avoid the payment of compensation to the villagers / farmers. It is required to be noted that as such the petitioner was party to the earlier petition being Special Civil Application No.9699/2008. The directions came to be issued by the Division Bench of this Court in Special Civil Application No.9699/2008 after hearing the petitioner Page 25 of 30 C/SCA/1414/2011 CAV JUDGMENT and after considering the detailed reply filed on behalf of the petitioner and GPCB. The order passed by the Division Bench of this Court has attained finality and the same is not carried further by the petitioner. The petitioner as such had accepted the said order. The petitioner, thereafter, had participated in the proceedings before the learned Principal District Judge, Sabarkantha. This Court is not sitting as an appellate Court over the order passed by the Division Bench of this Court in Special Civil Application No.9699/2008. Being a coordinate Bench, this Court is not required to exercise the powers of an appellate Court against the decision of the coordinate Bench which as such has attained finality and which the petitioner has accepted and thereafter as observed herein above has participated in the proceedings. Therefore, thereafter, the petitioner is not justified in making any grievance against the order passed by the Division Bench of this Court in Special Civil Application No.9699/2008.
[7.3] Even otherwise also the order passed by the Division Bench and the directions issued by this Court in Special Civil Application No.9699/2008 cannot be said to be nullity as the same cannot be said to be wholly without jurisdiction. The directions came to be issued by the Division Bench of this Court in exercise of powers under Article 226 of the Constitution of India. Therefore, the directions which were issued by the Division Bench of this Court in Special Civil Application No.9699/2008 as such cannot be said to be wholly without jurisdiction and therefore, nullity as now contended on behalf of the petitioner. It cannot be disputed and it is not even disputed by the learned Counsel appearing on behalf of Page 26 of 30 C/SCA/1414/2011 CAV JUDGMENT the petitioner that even the High Court in exercise of powers under Article 226 of the Constitution of India can direct to pay the compensation. However, in an appropriate case the High Court may evolve its own mechanism to assess and determine the compensation for the damages / harm caused. In the present case the exercise of power assessing the damages was entrusted to the Expert Committee who assessed the extent of pollution and harm caused to the environment. The directions issued by the Division Bench referred to herein above therefore cannot be said to be a nullity as contended on behalf of the petitioner now. Under the circumstances and in the facts and circumstances of the case, the decisions relied upon by the learned Counsel appearing on behalf of the petitioner viz. in the case of Harshad Chiman Lal Modi (Supra), Balvant N. Viswamitra and Others and Amrit Bhikaji Kale and Others (Supra) shall not be applicable to the facts of the case on hand and/or the same shall not assess the petitioner.
[7.4] Similarly the decisions of the Hon'ble Supreme Court in the case of Mallikarjuna Rao and Others (Supra), Common Cause (A Regd. Society) (Supra), Dayaram (Supra) and Indian Soaps and Toiletries Makers Association (Supra) also shall not be of any help to the petitioner and/or shall not be applicable to the facts of the case on hand.
[7.5] Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Vohra Sadikbhai Rajakbhai (Supra) in support of his submission that the doctrine of absolute liability cannot be extended when the accident was the result of act Page 27 of 30 C/SCA/1414/2011 CAV JUDGMENT of God is concerned, the said decision also shall not be applicable to the facts of the case on hand. It is required to be noted that as such in the present case right from 2004 and in earlier round of litigations it was specifically found that because of the discharge of the effluents by the petitioner in the borewells, the underground water in the nearby area has been contaminated and it has caused harm to the large extent to the underground water, bore wells/wells in the nearby area. It is required to be noted that because of the aforesaid infact the closure order was passed and infact the petitioner also thereafter was compelled to close down the factory / unit. The closure order has attained the finality. Therefore, thereafter, it is not open for the petitioner to contend that it was an act of God. It has been proved and found earlier that because of the discharge of the effluent by the petitioner's unit in the borewells and because of the negligence on the part of the petitioner and discharging the effluent for number of years, the underground water has been contaminated and large scale harm has been caused to the underground water in the nearby borewells / wells and ultimately it affected the agriculturists and farmers of the village and the nearby area of the factory. Even in the said decision the Hon'ble Supreme Court has observed that the act of God is that which is a direct, violent, sudden and irresistible act of nature as could not, by any amount of ability, have been foreseen, or if foreseen, could not by any amount of human care and skill have been resisted. It is required to be noted that as such in the present case because of the discharge of the effluents by the petitioner unit in borewells and the contamination of the underground water as due to discharge of effluent by the petitioner Page 28 of 30 C/SCA/1414/2011 CAV JUDGMENT since many years much prior to even the earthquake in 2001 which is put as a defence by the petitioner that it was an act of God. It has been found that because of the discharge effluent by the petitioner unit in the borewell which was even without any treatment has caused the harm to the underground water which continued for number of years and it has been found that damage was to such an extent that even after 5 years of closure, the red water was found from the nearby borewell. Therefore, in the facts and circumstances of the case, the petitioner cannot be absolved from the liability to pay the compensation for the damages / harm caused by it to the environment more particularly in the present case the underground water on the ground that it was an act of God.
[7.6] Now, so far as the question of quantum of damages is concerned, it is required to be noted that as such it has been established and proved that because of the discharge of effluent by the petitioner for number of years it has caused great harm and damage to the underground water and the underground water in the nearby area is found to be contaminated. Therefore, as such a great damage / harm is already caused to the nature / environment and due to which even the agriculturists / farmers in the nearby area have suffered loss. It cannot be disputed that the closure order was passed by the GPCB against the petitioner and the petitioner was compelled to close down the industry. Therefore, the villagers / agriculturists / farmers affected shall be entitled to the reasonable compensation once factum of suffering loss stands proved. It is cardinal principle of law that where a wrong has been Page 29 of 30 C/SCA/1414/2011 CAV JUDGMENT committed, a wrong doer must suffer from the impossibility of accurately ascertaining the amount of damages. The petitioner being a wrong doer who has caused harm to the environment / nature and in the present case the underground water, must suffer the consequences by making the payment of cost of reversal damages and even the compensation for the damages / harm caused to the farmers / agriculturists and the villagers. A person / industry / unit, if found to have committed the wrong by polluting the nature may be air, water or earth, must be liable to pay the compensation and must be made to suffer. Nobody can be permitted to harm / damage the nature / environment, may be earth, air or water. A strong message must go that whoever because of their act and/or inaction causes the damage / harm to the nature / environment shall have to suffer by paying the compensation and even by paying the reversal cost of damages. Under the circumstances and in the facts and circumstances of the case, the impugned order passed by the learned Principal District Judge, Sabarkantha, at Himatnagar does not call for any interference by this Court in exercise of powers under Article 226/227 of the Constitution of India.
[8.0] In view of above and for the reasons stated above, present Special Civil Application deserves to be dismissed and is, accordingly, dismissed.
Sd/ (M.R. SHAH, J.) Sd/ (A.Y. KOGJE, J.) Ajay** Page 30 of 30