ANIL KUMAR KARNWAL Vs. STATE OF U P

JUDGEMENT

(1.) WRIT Petition No. 27299 of 19% was initially instituted in the Supreme Court under Article 32 of the Constitution where it was registered as Public Interest Petition No. 522 of 1992 praying for issuance of directions, orders or writ including writ in the nature of mandamus, or any other appropriate writ for the enforcement of the rights of the petitioner and other residents of township of Muzaffarnagar to live in a pollution free environment by directing the respondents 3 to 8 to shift their Industries to a distant place from the populated area of the township ; to issue direction to respondents 1 to 9 directing them to shift/displace respondents 3 to 8 to some other place out of the Municipal limit of the Municipal Board of Khatauli ; to issue directions, orders or writ for closure of the respondents 3 to 8 in view of heavy pollution caused by them in the locality of Khatauli. The matter was monitored by the Apex Court but ultimately, the writ petition was transmitted to the High Court pursuant to the order dated Aug. 1,1996, taking into reckoning that the High Court would be better equipped to delve into the situation, post fixed with the direction to treat the petition filed in the Apex Court, as having been filed in the High Court under Article 226 of the Constitution. W. P. No. 30010 of 1995 was instituted in this Court seeking similar reliefs in respect of Bone Mills situated within the Municipal limit of Hapur, district Ghaziabad. The writ petition received from Supreme Court shall be treated as the leading file and govern the decision of the connected petition.

(2.) THE petitioner No. 1, and Advocate practicing in the Apex Court, has ostensibly under taken the public interest litigation as a matter of public duty, claiming himself to be a social worker actively dabbling in social awakening for the maintenance and preservation of the environment free from pollution and health hazards. THE petitioner No. 2 was at that time, the Chairman, District Co-operative Bank Muzaffarnagar and had been the Chairman of Khatauli Municipal Board, District Muzaffarnagar. It was alleged that the respondent Nos. 3 to 8 were adversely affecting the environment in the Municipal. area of Khatauli and thereby they were interfering with the fundamental rights of the petitioners and other citizens guaran teed under Article 21 of the Constitution. THE respondents I,2and9wereimpleaded being necessary party to facilitate access to legal action against the respondents 3 to 8 under the provisions of Environment (Protection Act, 1986 and other relevant Legislation). It is further alleged in the petition that gaseous substances such as Phosphorus Pentoxide and Phosphorus TW-oxide being emitted in the process of burning of bones without any fuel, would spawn giddiness and cause vomiting upon being inhaled. THE petition was initially instituted qua the Khatauli Manure Mills, G. T. Road Khatauli Muzaffarnagar, Kamal Bones Manure Mills near. Railway Godown Khatauli, Capital Bone Mills near Railway Godown Khatauli, Kohinoor Bone Manure Mills near Railway Godown Khatauli, Abdul Bone Factor near Railway Station Khatauli, Bone Godown Khatauli and Bone Godown in the district of Muzaffarnagar, arrayed as party respondents 3 to 8 followed by State of U. P. , Union of India and the Municipal Board, Khatauli being impleaded as party respondents 1, 2 and 9 respectively. Sub sequently, by an order dated 28th August, 1995, the Member Secretary U. P. Pollution Control Board, Pick Up Bhawan Vibhuti Khand, Lucknow was impleaded as party respondent No. 10. Notices were issued to the respondents by the Apex Court vide order, dated 7-11-94 and thereafter, the case figured on board before Apex Court on several dates until the petition was transmitted to this Court by means of the order, dated August 1,1996. Some of the order of the Apex Court are abstracted below to elicit instant reference. 10-7-95: This Court on Feb. 20,1995, passed the following. "order THE learned Counsel for the respondents industries very fairly states that if suitable alter native place is available, they would like to shift and relocate/their industries. THE respondents may apply their mind and come out with their proposal regarding various industrial estates near about where alternative places. . . . . . . are available. THE writ petition is adjourned for 8 weeks. Mr. R. K. Jain, learned Senior Advocate, appearing for respondent No. 3, states that the respondent industry is in the process of acquiring land in the State of Haryana and is likely to shift as and when the possession of the land is handed over and the necessary super structure is constructed. So far as the respondents 4 and 6 are concerned, the learned Counsel states that the industries have already shifted from Khatauli to Sheikhpura. We direct the U. P. Pollution Control Board to Inspect the industries and make a detailed report regarding the status of these industries within four weeks of the receipt of this order. THE writ petition is ad journed to 28th August, 1995. " xxxx 28-8-95: , Mr. Dinesh Kumar, Executive Officer of the Municipal Board, Khatauli in his affidavit dated July 7, 1995 has stated that all the bone Mills of Khatauli including the Industrial Units of Respondents 3, 4 and 6 along with Ahsan Traders and Murdari Factory are closed and sealed by the District Administration of Muzaf farnagar since 28th September, 1994 due to heavy pollution caused by these Industrial Units. Learned Counsel for respondent Nos. 4 and 6 states that they have already shifted their Bone Mills from within the municipal limits of Khatauli. Be that as it may, we direct that Bone Mills/industries shall not start functioning till further orders. In case the Management wishes to remove any material from the premises of the Mills, they may be permitted to do so. THE application for impleadment filed by Pollution Control Board is allowed. To be listed after 8 weeks. " There after, on 17-11-95, the Apex Court made the following order. 17-11-95: Upon hearing the court made the following order, we have read the report, learned Counsel for the parties state that the would themselves visit the locality and then give their independent assessment of the Court. List the matter on 24-11 -95. Issue notice on IA No. 6 returnable in six weeks. " xxxxx "list on 4th January, 1996. High up. Till the final disposal of the case, the Bone factory shall not operate. THE proprietor may however have access to the factory for residence" purposes or for using the office for correspondence etc. " On 19-12-96 and 22-4-96, the Apex Court again passed the following order. 19-2-96 Upon hearing counsel the Court made the following "order Respondent 3 has given an undertaking in the fallowing terms. "that the respondent No. 3 gives an undertaking that it will notice of the premises for any purposes which may cause water/air/soil Pollution in the area and no effluent shall be discharged and no Raw Bones shall be imported or stored. THE respondent No. 3 further under takes that he will not carry on any manufacturing process relating to Raw Bones. " We permit the respondent to use the premises for any purpose which does not. produce either air, water or soil pollution. It shall also not create any noxious smell in the area. THE trade shall also not be hazardous, noxious or injurious to health. We direct the U. P. Pollution Control Board to inspect the premises after two months and file a report in this Court regarding the activity being under taken by respondent 3. Respondent 4 has given an undertaking that the premises shall not be used for bone crushing purpose or any other purpose connected with bone crushing. He states that he would use the premises for the purpose, which shall neither produce air nor water pollution. It shall also not create any noxious smell in the area. THE trade shall also not be noxious, hazardous or injurious to health. We permit the respondent to use the premises for the above mentioned purpose. THE U. P. Pollution Control Board shall inspect the premises after two months and file a statue report in this Court. Mr. Shakeel Ahmad appears for M/s. Ahsan Traders. He is an intervenor. His Industry has been closed under the order of the Sub-Divisional Magistrate, Jansath. THE intervenor may proceed in accordance with law. So far as Khatauli Bone Processing Industries are concerned, the matter is closed. So far as Ghaziabad Bone Processing In dustries are concerned, the U. P. Pollution Control Board has filed its report. To be listed on 26th February, 1996. ". xx x x xx 8-4-96 Upon hearing counsel, the Court made the following Order Pursuant to this Court's order dated March 11, 1996, the U. P. Pollution Control Board has issued notices to all the industries mentioned in the said order. We direct these industries to file their objections before the U. P. Pollution Control Board within two weeks from today. THE objections shall be heard by the two officers, one nominated by the U. P. Pollution Control Board and the other by the Central Pollution Central Board. THE objections shall be decided within two weeks thereafter and report be placed before this Court. When any industry approaches the U. P. Pollution Control Board for a copy of the report, that may be given in accordance with law. Post the matter on 8th May, 1996 xx xx xx 22-4-96: Upon hearing counsel the Court made the following. Order Copy of the application to the learned Counsel for the U. P. Pollution Control Board. THE Board may inspect the Units and thereafter in case the Units are found to be polluting units or they are nuisance to the residential area the Board may issue necessary notices in accordance with law. To come up on 8th May, 1996. " (Emphasis supplied ). Ultimately, on August 1, 19%, the Apex Court made the following order. 1-8-96: This Public Interest Petition under Article 32 of the Constitution of India is directed against various industries connected with Meat and Bone Processing in the District of Ghaziabad, U. P. A mandamus is sought from this Court to direct the Bone Mills, Bone cleaning and Fat Processing Mills, Slaughter Houses and Meat Processing Units, Animal Glue Manufacturing Industries and various allied in dustries, be directed to control pollution or re locate themselves from the area. This Court has been monitoring the matter till date. Notices have been issued by this Court to various industries. There are reports on record by the U. P. Pollution Control Board and the Central Pollution Control Board. In the process of relocation, if directed, it may be. necessary to inter-act with various depart ments/offices of the State Government. We are of the view that the High Court rather than this Court is better placed to deal with the situation. We, therefore, transfer this, writ petition to the High Court to be treated as a petition under Article 226 of the Constitution of India and be dealt with in accordance with law. We request the Chief Justice of the Allahabad High Court to kingly constitute a Bench to deal with the environmental matters. THE parties concerned may appear before the Registry of the Allahabad High Court on August 22, 19%. THE Registry shall then give further dates to the parties in accordance with the procedure of the Court. THE Registry to send the paper books and the Records of this Court to the Allahabad High Court within three days. " In observance of the order dated 30-10-95, the following report, it appears, was sub mitted by the Central Pollution Control Board through Sri D. K. Sharap, Environmental Engineer, Central Pollution Control Board Delhi. "central Pollution Control Board Delhi. INSPECTION REPORT ON IN DUSTRIES ENGAGED IN BONE PROCESSING AT KHATAULI, U. P. PUR SUANT TO THE ORDER OF THE HON'ble SUPREME COURT DATED 30-10-1995 IN THE W. P. NO. 552 OF 1994. THE above industries under reference were visited on 9-11-95. THE visiting team comprised the following officials. Sri Paritosh Kumar, Environmental Engineer Sri D. S. Kharat, Environmental Engineer. THE observation and comments on these industries -ire given below: (i) M/s. Khatauli Manure Mill. THE unit was inspected in the presence of Sri S. C. Sharma, Administrative Manager. This industry at present is not in operation. As mentioned by Shri S. C. Sharraa, the industry is in the process of shifting the Doha, District Gurgaon of Haryana, for which they have obtained provisional NOC from Haryana State Pollution Control Board. THE industry could not provide time bound programmed for dismantling of the plant and machinery. (ii) M/s. Kamal Bone Manure Milts. THE correct name and address of this in dustry is given below. M/s. Karnal Manure Factory, Triveni Sugar Mill Road, Shekhpura, P. O. Khatauli, Distt. Muzaffarnagar (U. P.) THE above industry is located on agricultural land which is about half a kilometer (aerial distance) away from the habitation. During the visit, the industry was found closed. As informed by Shri Mohd. Anees, partner, the Industry receives dry bone as raw material, and crushing and sieving take place at his work. THE production process in this industry revealed that it likely to cause air pollution or smell problems. However, actual pollution potential can be assessed with the industry comes into operation. (iii) M/s. Kohinoor Bone Manure Mill. THE correct address of the industry is given below: M/s. Kohinoor Bone Manure Mill, Triveni Sugar Mill Road, Shekhpura, P. O. Khatauli, Distt. Muzaffarnagar (U. P.) THE above industry is also located on agricultural land about half a kilometer (aerial distance) away from habitation. During inspec tion, it was found closed. Mr. Zahid, the industry representative in formed that the industry is engaged in manufacturing of chicken feed stuff. THE production process involves only mixing of bone dust (raw material) with deolied cake. Extent of pollution can be assessed when the industry comes into operation. (iv) M/s Bone Godown Through its owners Sri Sulaiman Khan and Sri Illahi Khatauli District Muzaffarnagar (U. P.) (v) M/s. Capital Bone Mill Through its owner Shri Ram Swarup, Mohalla Mutaffaq, Sainin Nagar, Ward 12, Near Railway Godown, Khatauli Distt. Muzaffarnagar (U. P.) (v) M/s. Abdul Factory through its owner Sri Abdul (near Railway Station) Khatauli, Distt. Muzaffarnagar (U. P.) THE above three units were not found at the given address. " THE member-Secretary, Central Pollution Control Board processed a note dated 4-1-1996 under the heading 'note REGARDING SITING OF BONE MILLS. " "the Hon'ble Supreme Court is seized of the problem of location of Bone mills in the country and in the State of Uttar Pradesh in particular. In fact the bone mills are involved in processing of defleshed and waste bones from bone godown/industries for various beneficial uses. THE law material is first stored in open space so that it can be sun-dried perfectly. This period of drying the bones is critical as it creates noxious and unbearable smelt at the time of bacterial decomposition of left over flesh apart from its not being aesthetic. More so, the spread of these raw material in a wider space also at tracts vultures, files etc. , which act as vectors in transmitting of diseases. As the drying of bones takes longer period during monsoon, the problem aggravates resulting in water and soil pollution. At times, the dry bones are soaked/boiled in brine solution, (common salt) in order to deflesh the bone and make it process- friendly. THE waste water is dispose of without any treat menton land which results in pollution of sur face water, ground water and soil. THE process as a whole is noxious emitting foul smell, aesthetically unsound and environmentally unfriendly. However, 'when it is unavoidable, the activities may be regulated in accordance with the recommendation mentioned hereunder: (1) Bone Mills be located away from the habitation at least at a distance of not less than 2 Km. (2) It should not be located in the upwind direction of the locality. (3) THE activities should also be away from the sensitive/religious and institutional areas, tourist resorts, hospitals, hotels and such other places. (4) Any activity of this nature should have a consent from the State Pollution Control Board and the local municipal authorities. (5) THE waste water discharged from such units should be property treated and not per mitted to join any water body without treatment. (6) THE activity should be banned on air traffic routes, aerodromes/airstrips at least upto a distance of ten kilometer to avoid bird hits of aircraft which has become so frequent a phenomenon par ticularly in Ghaziabad area (Hindon base of the Air Force ). THE Aircraft Rules, 1937 framed under the Aircraft Act, 1934 also provide prohibition of certain activities in the vicitnity of aerodrome. Rule 81-B of the Aircraft Rules, 1937 read as under: "81-B. Prohibition of slaughtering and flaying of animals, depositing of rubbish and other polluted or obnoxious matter in the vicinity of aerodromes.-No person shall slaughter or flay any animal or deposit or drop any rubbish filth, garbage or any other polluted or obnoxious matter including such material from hotels, meat shops, fish shops and bone processing Mills which a attracts or is likely to attract vultures or other birds and animals, within radious of ten kilometers from the aerodromes reference point: Provided that the Director General or a Deputy Director General of Civil Aviation may, if he is satisfied that proper and adequate arrangements have been made by the owners of hotels, meat shops, fish shops and bone processing Mills so as to prevent attraction of vultures or other birds and animals, having regard to the vicinity of place of slaughter from the aerodrome, arrangements for disposal or deposit of carcass, rubbish and other polluted and ob noxious matter, grant permission in writing for the purpose. 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