K.K.Subramaniam vs Loss Of Ecology on 12 February, 2010

[Cites 10, Cited by 2]

Madras High Court

K.K.Subramaniam vs Loss Of Ecology on 12 February, 2010

The petitioners are the joint owners of 10.50 acres of land in S.Nos.330 and 331 and Patta No.1243 of Thoppampatti village, Thennilai Keezh Bhavani Ayacut, Aravakkurichi Taluk, Karur District. According to the petitioners, their lands are situated along the left bank of the River Noyal and they were cultivating various crops like sugarcane, groundnut, paddy, mango, coconut and teak and they draw water for the irrigation from an open well near the river bank. The petitioners further stated that though they were obtaining high yield, of late, the yield has gone down drastically due to the contamination of the well caused by the pollutants in the River Noyyal, which has, over the years, became a depository for chemical effluents discharged by the dyeing industry at Tiruppur; that bleaching and dyeing units are set up in the vicinity of the river, in violation of G.O.Ms.No.213 (Environment and Forests (EC-1), dated 30.3.1989, which prohibits the establishment of highly polluting industries within one kilometre from the embankments of water sources and therefore, they sought the assistance of Dr.K.K.Krishnamurthy, a renowned Soil Scientist and a former Dean of the Tamil Nadu Agricultural University to render expert opinion on the phenomenon of pronounced reduction in crop yields and they have also obtained an analytical report from the Laboratory of the Tamil Nadu Agricultural University, Coimbatore, which has reported that soil and well water showed that the E.C. was as high as 14 and PH was as high as 9.4. The petitioners further stated that Dr.Krishnamurthi, in his expert report on the soil condition and crop yield on the petitioners' land has referred to the analytical results and concluded that the high EC and PH are entirely due to the toxic chemicals emanating from the dyeing industry, which are mixed with the ground water and such contamination caused great damage not only to the crops but also to the soil and in the long run, the soil would deteriorate so much that it becomes beyond reclamation and may have to be abandoned altogether.

2. After obtaining the said report, the petitioners have filed a Claim Petition before the 1st respondent Authority in January, 2003, seeking a compensation of Rs.5 lakh for loss of teak and a further compensation of Rs.50,000/= per annum for the recurring loss. Thereafter, the petitioners amended the claim petition and sought a compensation of Rs.5 lakhs for the loss of teak, a compensation of Rs.3 lakhs for the loss of coconut trees (300 trees x Rs.1000), a compensation of Rs.2 lakhs for the loss due to yield of coconut trees for four years, compensation of Rs.2,50,000/= for polluted well water (including a 5 HP motor),compensation of Rs.5,25,000/= for damage to 10.5 acres of land and a compensation of Rs.1 lakh for the loss of water sources on 10.5 acres of land and they have also sought for framing a scheme for the remediation of their land, ground water and the river Noyyal.

3. The petitioners state that a reply was received by them on 11.3.2003 from the first respondent's Administrative Officer stating that the Authority had taken up the work of assessing the loss to ecology and environment in the affected areas of Karur District and that the petitioners' claim would be considered only when the work of identification of individuals and families who have suffered due to pollution in the affected areas was taken up and thereafter a team of officials of the first respondent visited Karur District on 18th and 19th of March, 2003, but they did not visit the areas affected by the contamination of the waters of the river Noyyal and they confined their field visit to localities in Karur town like Sanapparatti, Appipalayam and Sukkaliyur and therefore, the petitioners have filed W.P.No.18197 of 2003 before this Court, seeking a Writ of Mandamus to direct the first respondent herein to dispose of their claim petition and the said writ petition was disposed of on 7.7.2003 with a direction to the first respondent to pass orders on the petitioners claim dated 24.2.2003 within a period of two months. Thereafter, the claim petition of the petitioners was disposed of on 24.9.2003 stating that the petitioners have been declared eligible for payment of compensation but the amount of compensation would be declared only at the time of finalising a study on the total land affected by pollution by the industries in the Noyyal basin area.

4. The petitioners further submit that the said Dr.K.K.Krishnamurthy, Soil Scientist, again visited their lands on 11.7.2004 and submitted a report, stating that the entire teak plantation was almost completely withered and the mango trees were totally destroyed and no mango plant could be seen and the coconut trees too were showing symptoms of deterioration with no yield and he has assessed the loss to be approximately Rs.20 lakhs and the said report was submitted before the first respondent Authority.

5. The first respondent, by the impugned order dated 29.12.2004, passed in the petitioners' claim petition observed that the petitioners are eligible for compensation, but has observed that compensation was payable for loss in production for pre-dominant crops and not for individual crops and therefore ignored the loss caused to teak trees and mango trees and has awarded a compensation of Rs.60,000/= to the first petitioner and Rs.1,56,300/= to the third petitioner. Aggrieved by the said order passed by the first respondent Authority, the petitioners have come forward to file this writ petition stating that teakwood and mango are also pre-dominant plants grown by the petitioners and the officials of the first respondent in their field inspection report dated 27.8.2003 have observed that teakwood is planted over 0.20 hectares and there are about 300 trees aged about 10-15 years and that several of them are dry and mango saplings aged about 2= years are planted over 5 acres and the leaves show scorching symptoms due to salt water irrigation and that the first respondent Authority has not taken into consideration the reports filed by Prof.Dr.K.K.Krishnamurthy, Soil Scientist, dated 5.7.2002 and 11.7.2004.

6. Heard the learned counsel on either side. No counter affidavit has been filed on behalf of the respondents in this writ petition. But, on behalf of the first respondent Authority it has been consistently maintained that the criteria for payment of compensation is not on the basis of the individual crops raised by an affected individual, but on the basis of an uniform rate for a village, falling in a certain category of environmental degradation and when all the affected individuals are being paid on the uniform basis, the petitioners' case cannot be singled out and compensation paid for the teak and mango raised by the petitioners in their lands and there cannot be any discrimination among the affected individuals, whether they have filed claim petitions before the Authority or not; that in fact, there are number of affected individuals who have raised teak, but have not filed any claim petition, so also there are some affected individuals who have raised cash crops in their lands and when 28,596 affected individuals are granted compensation for 28,500 hectares of lands on the basis of the above principle, it will violate Article 14 of the Constitution, if the petitioners alone are paid compensation on the basis of the crops raised by them.

7. To better appreciate the case on hand, a brief background of the coming into being of the first respondent Authority has to be narrated.

8. Aggrieved at the manner in which the tanneries in the state of Tamilnadu are posing threat to the ecosystem and alleging that enormous discharge of untreated effluents into the river Palar is resulting in non-availability of potable water in the area, a Public Interest Litigation under Article 32 of the Constitution of India was filed before the Honourable Supreme Court in W.P.(C) No.914 of 1991 by Vellore Citizens Welfare Forum, praying to issue a Writ of Mandamus, directing the respondents therein viz. Union of India and the State of Tamil Nadu, to immediately pay adequate compensation to victims of pollution and to those who lost their lives, food crops, vegetation, trees, agricultural land, wells and suffered severe hardship due to irresponsible and negligent act of polluting tanneries, the amount to be paid in compensation to the affected people be recovered from the polluting tanneries and the Honourable Apex Court in its landmark judgment in VELLORE CITIZENS WELFARE FORUM vs. UNION OF INDIA AND OTHERS [AIR 1996 SC 2715], dated 28.8.1996, in Para No.24, has issued the following directions:

"1. The Central Government shall constitute an authority under S.3(3) of the Environment (Protection) Act, 1986 and shall confer on the said authority all the powers necessary to deal with the situation created by the tanneries and other polluting industries in the State of Tamil Nadu. The authority shall be headed by a retired judge of the High Court and it may have other members preferably with expertise in the field of pollution control and environment protection to be appointed by the Central Government. The Central Government shall confer on the said authority the powers to issue directions under S.5 of the Environment Act and for taking measures with respect to the matters referred to in Cls.(v), (vi), (vii), (viii), (ix), (x) and (xii) of sub-section (2) of S.3. The Central Government shall constitute the authority before September 30,1996.

2. The authority so constituted by the Central Government shall implement the "precautionary principle" and the "polluter pays" principle. The authority shall, with the help of expert opinion and after giving opportunity to the concerned polluters assess the loss to the ecology/environment in the affected areas and shall also identify the individuals/families who have suffered because of the pollution and shall assess the compensation to be paid to the said individuals/families. The authority shall further determine the compensation to be recovered from the polluters as cost of reversing the damaged environment. The authority shall lay down just and fair procedure for completing the exercise.

3. The authority shall compute the compensation under two heads namely, for reversing the ecology and for payment to individuals. A statement showing the total amount to be recovered, the names of the polluters from whom the amount is to be recovered,the amount to be recovered from each polluter, the persons to whom the compensation is to be paid and the amount payable to each of them shall be forwarded to the Collector/District Magistrates of the area concerned. The Collector/District Magistrate shall recover the amount from the polluters, if necessary, as arrears of land revenue. He shall disburse the compensation awarded by the authority to the affected persons/families.

4. The authority shall direct the closure of the industry owned/managed by a polluter in case he evades or refused to pay the compensation awarded against him. This shall be in addition to the recovery from him as arrears of land revenue.

5. An industry may have set up the necessary pollution control device at present but it shall be liable to pay for the past pollution generated by the said industry which has resulted in the environmental degradation and suffering to the residents of the area.

6. We impose pollution fine of Rupees 10,000/- each on all the tanneries in the districts of North Arcot Ambedkar, Erode Periyar, Dindigul Anna, Trichi and Chengai M.G.R. The fine shall be paid before October 31, 1996 in the office of the Collector/District Magistrate concerned. We direct the Collectors/District Magistrates of these districts to recover the fines from the tanneries. The money shall be deposited, along with the compensation amount recovered from the polluters, under a separate head called "Environment Protection Fund" and shall be utilised for compensating the affected persons as identified by the authorities and also for restoring the damaged environment. The pollution fine is liable to be recovered as arrears of land revenue. The tanneries which fail to deposit the amount by October 31, 1996 shall be closed forthwith and shall also be liable under the Contempt of Courts Act.

7. The authority, in consultation with expert bodies like NEERI, Central Board, Board shall frame scheme/schemes for reversing the damage caused to the ecology and environment by pollution in the State of Tamil Nadu. The scheme/schemes so framed shall be executed by the State Government under the supervision of the Central Government. The expenditure shall be met from the "Environment Protection Fund" and from other sources provided by the State Government and the Central Government.

8. We suspend the closure orders in respect of all the tanneries in the five districts of North Arcot Ambedkar, Erode Periyar, Dindigul Anna, Trichi and Chengai M.G.R. We direct all the tanneries in the above five districts to set up CETPs or Individual Pollution Control Devices on or before November 30, 1996. Those connected with CETPs shall have to install in addition the primary devices in the tanneries. All the tanneries in the above five districts shall obtain the consent of the Board to function and operate with effect from December 15, 1996. The tanneries who are refused consent or who fail to obtain the consent of the Board by December 15, 1996 shall be closed forthwith.

9. We direct the Superintendent of Police and the Collector/District Magistrate/Deputy Commissioner of the district concerned to close all those tanneries with immediate effect who fail to obtain the consent from the Board by the said date. Such tanneries shall not be reopened unless the authority permits them to do so. It would be open to the authority to close such tanneries permanently or to direct their relocation.

10. The Government order No.213 dated March 30, 1989 shall be enforced forthwith. No new industry listed in Annexure-I to the Notification shall be permitted to be set up within the prohibited area. The authority shall review the cases of all the industries which are already operating in the prohibited area and it would be open to authority to direct the relocation of any of such industries.

11. The standards stipulated by the Board regarding total dissolved solids (TDS) and approved by the NEERI shall be operative. All the tanneries and other industries in the State of Tamil Nadu shall comply with the said standards. The quality of ambient waters has to be maintained through the standards stipulated by the Board."

9. In Para No.25 of the said judgment, the Honourable Apex Court has further observed as follows:

"We have issued comprehensive directions for achieving the end result in this case. It is not necessary for this Court to monitor these matters any further. We are of the view that the Madras High Court would be in a better position to monitor these matters hereinafter. We, therefore, request the Chief Justice of the Madras High Court to constitute a Special Bench "Green Bench" to deal with this case and other environmental matters. We make it clear that it would be open to the Bench to pass any appropriate order/orders keeping in view the directions issued by us. We may mentioned that "Green Benches" are already functioning in Calcutta, Madhya Pradesh and some other High Courts. We direct the Registry of this Court to send the records to the registry of the Madras High Court within one week. The High Court shall treat this matter as a petition under Art.226 of the Constitution of India and deal with it in accordance with law and also in terms of the directions issued by us. We give liberty to the parties to approach the High Court as and when necessary."

10. From the materials placed on record, it is seen that the said Writ Petition was transferred to the file of this Court from the Honourable Supreme Court and re-numbered as W.P.No.13433 of 1996 and pursuant to the directions issued in the above said writ petition, the Loss of Ecology (Prevention and Payment of Compensation) Authority has been constituted by the Government of India, vide its Notification in S.O.671 (E), dated 30.9.1996 with The Honourable Mr.Justice P.Bhaskaran, a retired Judge of this Court, as the Chairperson and the said Authority started functioning from 23.9.1998. The following powers and functions were conferred on the said Authority:

"(i) exercise of powers under Section 5 of the said Act (Environment (Protection) Act, 1986), for issuing directions and for taking measures with respect to matters referred to in Clauses (v), (vi), (vii), (viii), (ix), (x) and (xii) of Sub-section 2 of Section 3 of the said Act;

(ii)to assess the loss to the ecology and environment in the affected areas and also identify the individuals and families who have suffered because of the pollution and assess the compensation to be paid to the said individuals and families;

(iii)to determine the compensation to be recovered from the polluters as cost of reversing the damaged environment;

(iv)to lay down the procedure for actions to be taken under (i) to (iii) above;

(v)to compute the compensation under two heads, namely, for reversing the ecology and for payment to individuals;

(vi)to direct the closure of any industry or class of industries owned or managed by a polluter in case of evasion or refusal to pay the compensation awarded against the polluter. This shall be in addition to the recovery from the polluter as arrears of land revenue;

(vii)to frame scheme or schemes for reversing the damage caused to the ecology and environment by pollution in the State of Tamil Nadu in consultation with expert bodies like National Environmental Engineering Research Institute, Central Pollution Control Board, etc. These schemes shall be executed by the State Government of Tamil Nadu under the supervision of the Central Government. The expenditure shall be met from the "Environment Protection Fund" and from other sources provided by the State Government and the Central Government;

(viii)to review the cases of all the industries which are already operating in the prohibited area and direct the relocation of any of such industries;

(ix)to close the tanneries permanently or direct their relocation, which have not provided adequate treatment facilities and not having valid certificate from the TNPCB;

(x)to comply with the orders issued by the Madras High Court and the Supreme Court from time to time;

(xi)to deal with any other relevant environment issues pertaining to the State of Tamil Nadu, including those which may be referred to it by the Central Government in the Ministry of Environment and Forests."

11. But, in the impugned order, the first respondent Authority has stated that 'the Authority is mandated in Notification S.O.671(E), dated 30.9.1996 only to award compensation to identified persons affected by industrial pollution'. It has also been stated that 'claims for damages are not adjudicated by this Authority for which the right forum is civil courts.' On such observations and findings, the first respondent Authority has granted a compensation of Rs.60,300/= to the first petitioner.

12. As has been extracted supra, in clause No.(ii) of S.O.671 (E), dated 30.9.1996, the Government has conferred the power 'to assess the loss to the ecology and environment in the affected areas and also identify the individuals and families who have suffered because of the pollution and assess the compensation to be paid to the said individuals and families' on the first respondent Authority.

13. From the materials placed on record, it is seen that the petitioners have filed reports of a Soil Expert by name Dr.K.Krishnamurthy, who has also been examined as a witness before the first respondent, with due opportunity for the learned counsel for the Tamil Nadu Pollution Control Board to cross-examine him. Not only in his reports, but also in his examination before the Authority, the said Expert has given details about the loss caused to the lands and crops of the petitioners because of the pollutants. But, on a perusal of the impugned order it is clear that the said reports of the Expert have not been taken into consideration by the first respondent Authority and no reason, whatsoever, has been given, for not taking into consideration the expert's reports, while awarding compensation. The first respondent Authority has not appointed any expert of its own to assess the veracity or otherwise of the said expert reports submitted by the petitioners. Therefore, there is no reason for not considering the said expert reports, submitted by the petitioners, by the first respondent Authority.

14. The only reason offered by the first respondent Authority - that the criteria for payment of compensation is not on the basis of the individual crops raised by an affected individual, but on the basis of an uniform rate for a village, falling in a certain category of environmental degradation and when all the affected individuals are being paid on the uniform basis, the petitioners' case cannot be singled out and compensation paid for the teak and mango raised by the petitioners in their lands and there cannot be any discrimination among the affected individuals - does not appear to be sound, in view of the fact that by clause No.(ii) of S.O.671 (E), dated 30.9.1996, the Government has conferred the power 'to assess the loss to the ecology and environment in the affected areas and also identify the individuals and families who have suffered because of the pollution and assess the compensation to be paid to the said individuals and families' on the first respondent Authority. When such is the case, in our considered view, the Authority is duty bound to assess the loss sustained in each individual case, since applying uniform norm for granting compensation in all the cases equally may not serve any purpose in achieving the goals of justice, for which the first respondent Authority was constituted by the Government, as per the direction of the Honourable Supreme Court in Vellore Citizen's case.

15. Awarding compensation for the loss occasioned to the individual claimants because of the pollution varies from case to case. There may not be uniform level of pollution of water in all the lands and quality of soil may also vary from land to land, which will have direct impact or affect on the quantity and quality of the crop. The impact may vary even from one crop to other and the type of the crop cultivated. The lands nearer to the river/factory which discharge effluents either into the river or into air may get destroyed more, when compared to the lands situated at a far off place. While granting compensation it must also be kept in mind that each variety of crop like teak, mango, coconut grow under different environmental conditions and they need separate modes of nurturing. When the expert reports make it clear that the teak, coconut and mango plantations being cultivated for years together by the petitioners got caught by pollution caused by the effluents discharged by the factories in the area resulting in heavy loss to the petitioners, the Authority should have taken into consideration all the facts and circumstances in their proper perspective.

16. The other contention raised on the part of the first respondent Authority - that there are number of affected individuals who have raised teak, but have not filed any claim petition, so also there are some affected individuals who have raised cash crops in their lands and when 28,596 affected individuals are granted compensation for 28,500 hectares of lands on the basis of the uniform principle, it will violate Article 14 of the Constitution, if the petitioners alone are paid compensation on the basis of the crops raised by them also cannot be appreciated in view of the fact that for claiming a legal due by a person who is entitled to claim the same, there cannot be any bar in law and if such a person gets awarded his due under due process of law, it cannot be said that Article 14 is violated because the other such similarly placed persons have not raised any such claim. This argument advanced on the part of the first respondent regarding Article 14 of the Constitution is nothing but a misconception and needs to be rejected.

17. In such circumstances, as has already been pointed out by us supra, the first respondent Authority will be fully justified only in assessing each case separately and individually, taking into consideration the variants involved therein.

18. At the cost of repetition, it must be stated that there is abundant material on record in the form of expert reports before the first respondent Authority to assess the loss sustained by the lands and crops of the petitioners. Viewing from this angle, we have no hesitation to hold that the compensation of Rs.60,300/= awarded by the first respondent Authority to the claim of the petitioners is very meagre besides being bereft of consideration of the entire facts and circumstances of the case.

Therefore, it is a fit case to be remitted back to the first respondent Authority to re-consider the entire aspect of compensation claimed by the petitioners. Accordingly, this writ petition is allowed, setting aside the order dated 29.12.2004 passed by the first respondent Authority and the matter is remitted back to the first respondent for consideration of the entire aspect of compensation claimed by the petitioners. We request the first respondent Authority to pass appropriate orders on the claim of the petitioners within two months from the date of receipt of a copy of this order. We hope the first respondent Authority will put in all its efforts to remediate the Noyyal river, as has been prayed for by the petitioners in the second part of their prayer in this writ petition. No costs.

Index: Yes
Index: Yes						(E.D.R., J.)    (N.P.V., J.)
Rao								12.2.2010

To
1.The Member Secretary,
   Loss of Ecology 
  (Prevention and Payment of Compensation) Authority
  (Old No.119),
  New No.26, G.N.Chetty Road,
   Second Floor, T.Nagar, Chennai-600017.

2.The Member Secretary,
   Tamil Nadu Pollution Control Board,
   Guindy, Chennai.

3.The Secretary to Union of India,
    Ministry of Environment and Forests
   6th Floor, CGO Complex,
   Paryavaran Bhavan, Lodhi Road,
   New Delhi.

4.The Secretary to Government of
   Tamil Nadu 
   Department of Environment and Forests,
   Fort St.George,
   Chennai-600009.



ELIPE DHARMARAO, J.
AND
N.PAUL VASANTHAKUMAR, J.

(Rao)












								Pre-delivery
						Order in W.P.No.5682 of 2005
















									12.2.2010

Unlock Advanced Research with PRISMAI

Madras High Court