@JUDGMENTTAG-ORDER
M.F. Saldanha, J.@mdashAfter Bhopal and Chernobyl, is it to be the turn of Thane for another man-made disaster of unprecedented dimensions? History is supposed to forewarn and it is said that we are required to learn from our mistakes of the past. What began with the industrial revolution and was politely referred to in economic terms as development has, over the decades and centuries, grown into the setting up of gigantic enterprises which cater to the lifestyle and requirements of progressing society. While, on the one hand, manufacturing processes necessarily involve the storage and use of products which in themselves can often he categorised as dangerous, many of the processes themselves are required to be conducted under systems of extreme safety. It was realised all the more after the Bhopal tragedy that even the manufacture of pesticides, which have their own use, could, in the event of an accident or leakage, kill a sizable portion of the population in the vicinity of such a plant. The accent in the last decade at least has been focussed more and more towards the preventive aspect which in the simplest of the terms envisages that the danger to health and human life should be minimised to the maximum extent. It is for this purpose that stringent regulations are required to be promulgated with regard to the transport, storage, handling and user of hazardous chemicals, gases and processes. For obvious reasons, these cannot be completely isolated from towns, cities and areas of human habitation.
2. As a starter, however, prudence and the rules of abundant caution indicate that such units and processes should, as far as possible, be located in places other than where people normally live. This apart, since in a country such as this one, where there are pressures of land and where the density of the population is relatively large, it is very necessary to prescribe and provide for a safety margin within which no residence or human habitation should be permitted. Undoubtedly, the first requirement is to ensure that the transport and process at all stages are conducted under conditions that ensure maximum safety and thereby avoid accidents, leakage, explosions and the like. Experience has unfortunately indicated that even in the best of the situations with far more sophisticated safety and alarm systems that accidents have still occurred. The possibility of this happening in the Indian set-up is slightly higher. Incidents are plentiful even if one were to come down to the State of Maharashtra and the city of Bombay and its vicinity, where hazardous chemicals have caused havoc as a result of negligence or accident and the potential danger is what is to be regarded as the real threat.
3. Where human habitation is permitted in proximity of units dealing with hazardous chemicals and processes, there is an immediate two-fold danger; the first being the exposure to health hazards which would have its own long-term deadly effects and the second being the danger to life which is something irreplaceable. Both these aspects are crucial and are of equal concern and we do think that it is of fundamental necessity that the Planning Authorities, the Government and the Public bodies, who are entrusted with the task of deciding on the location of residential areas, must be alive to these very real and basic necessities at all times. These are the issues on which there can be no compromise, nor can there be any leniency.
4. In our considered view and in the present set-up, where the planning processes are left to the Government and to the public bodies, it is inherent that overriding considerations of Public health and danger to life must be issues to which top priority consideration is bestowed. Where there is a failure in this regard, the Court will have to step in, in exercise of the inherent powers vested in them and strike down or prohibit any action that offends these basic tenets. Nothing can be more fundamental than the issue of public safety and the right to life and where these are infringed upon, the Courts will have to act in the general interest of the citizens. Where a breach has occurred, either due to lethargy, negligence or for . other familiar reasons, the role of the Courts becomes all the more important. We are conscious of the fact that it is not the function of the Courts to direct and advise the Planning Authorities or to substitute their decisions by judicial decisions in the last resort. Unfortunately where it is demonstrated that public authorities have acted in a manner, or permitted activity that endangers public health and human life, the Courts, as of necessity, will have to take the exceptional step of remedying the mischief. No amount of technical pleas can justify a situation where a large number of people are permitted to reside in the close vicinity of industries dealing in hazardous chemicals and processes and under normal circumstances where such a situation has occurred, the Court would be justified in ordering demolition of the structures and removing the people residing in them in their own interest. One needs, however, to balance the equities in such instances and if it appears unduly harsh and unfair to order demolitions, a Court would still be justified in prohibiting any further new construction within a prescribed area.
5. There can be no absolute standards with regard to what constitutes a safe distance; as of necessity one is require to go by expert advice and past experience. The Court is also required to evaluate the possible danger in the event of an adverse happening and balance it, on the other hand, with the pressures that exist in areas where there is a shortage of accommodation. Taking all these considerations into account, a Court would prescribe what may judicially be categorised as a reasonably safe distance, within which it would be permissible to prohibit residential accommodation. In so doing, the issue as to whether the particular land comes within the residential zone or otherwise would be wholly irrelevant and for that matter the normal principles and rules that govern general situations would be wholly inapplicable. The situation in these cases is exceptional and it, therefore, requires consideration on special lines, even if the relevant Acts and rules do not make provision for that, as obviously they have not.
6. One needs to prefix this judgment with the statement that even though this petition is designated as a Review Petition, that it is in sum and substance a writ petition or rather a group of writ petitions which concern issues of crucial importance, not only to the Thane District but to all similarly situated industrial areas in the country. We need to, therefore, briefly recount the circumstances under which this unusual situation has arisen. In the month of September 1990, M/s. Sonam Builders and others filed Writ Petition No. 4497 of J980 against the State of Maharashtra and the Municipal Corporation of the City of Thane which petition came to be heard by a Division Bench (Pendse and Tipnis, JJ.) on the Appellate Side of this Court. The dispute related to lands bearing Survey Nos. 207, 208/1 and 142/2, situated at Village Balkum, District Thane, admeasuring approximately 11,534 sq. mts. These lands were situated in the industrial zone and were in the final regional plan of Thane designated for industrial user. The builders, who style themselves as developers, had basically contended that they had submitted certain development proposals in respect of the aforesaid plots of land for construction of multi-storeyed residential buildings and that the Thane Municipal Corporation (hereinafter referred to as "the T.M.C.") had passed an order dated 12/16th January 1991 rejecting the proposal. As late as on 6-9-1990, the Advocate for Sonam Builders addressed a notice to the T.M.C. contending that the order was illegal and void. This order informed the Architects of Sonam Builders that a proposal had been submitted to the Government by the chemical factories situated at Mauje Balkum, Kolshet, Majiwade and Chitalsar Manpada to the effect that no permission should be granted for building construction within a distance of 1 km. from the boundaries of the chemical factories in question. The complainants were M/s. Bayer (India) Ltd., M/s. Bandoz (India) Roche Products, Bohringer Knoll Limited, Indofil Chemical Co. and Colourchem Ltd. The order mentioned that these companies, who were dealing in hazardous chemicals, had petitioned to the Government that no building activity should be permitted within a radius of 1 km. from their boundaries, that the Government had admitted the said petition and that M/s. Sonam Builders'' development proposal was rejected until further orders from the Government were received.
7. When the petition was taken up for hearing, an affidavit was filed on behalf of the T.M.C., which was basically the planning authority, in defence of the action. After hearing parties, the Division Bench disposed of the petition by its judgment dated 8-11-1990. The judgment of the Division Bench, which is at page 70 of the compilation, essentially upheld the contention of the petitioners that merely because there was some complaint or merely because the development plan was proposed to be revised, that permission could not be rejected. White allowing the petition, the Division Bench passed the following directions:--
"Accordingly, petition succeeds and communicate on dated January 16, 1990 forwarded by Assistant Director, Town Planning, Thane Municipal Corporation, Thane and the copy of which is annexed as Ex. "R" to the petition is struck down. The respondents are directed to re-examine the plans submitted by the petitioners.and pass appropriate orders by taking into consideration the provisions of Section 46 of the Act and by ignoring any consideration which is not relevant or not permissible under the Act. The Corporation shall pass fresh orders on or before December 15, 1990. The respondents shall pay the costs of the petition."
As indicated earlier, this order was passed on 8-11-1990. Thereafter as many as 29 writ petitions of a similar type came to be disposed of wherein identical directions were issued.
8. The present petitioners, who are parties to the review application, are the manufacturing Companies in the area who have been objecting to the location of residential buildings in the immediate proximity of this unit. The basic case of the petitioners before us is that in the course of their manufacturing activities they are required to deal with large quantities of hazardous and positively dangerous chemicals which are transported to the factories, stored there and thereafter used in the manufacturing process in different forms. There can be no dispute about the fact that the chemicals in question are of a highly, hazardous and dangerous nature and after the unfortunate incident that took place in Bhopal and the terrible and tragic consequence of the gas-leak at the Union Carbide factory which resulted in death, destruction and havoc to thousands of people, the dangers to human habitation in the proximity of such factories has been very much highlighted. Quite apart from the aspect of liabilities that may arise in the event of an unfortunate leak or accident, the petitioners contend that it is more important to ensure that a certain safety bell is provided for around the factories so that even in the unlikely event of an accident, the possibility of any loss or serious injury to human life could be avoided. The petitioners contended that by view of the nature of their activity that they had shifted out from Bombay in the mid sixties and "set up their units in Thane District since the area was outside the city limits and in an area that was secluded at that point of time. Subsequently, however, with the pressures on housing having increased, the prices of real estate skyrocketed and various parties began to construct residential accommodation, that too in the form of multi-storeyed buildings. The grievance of the petitioners was that in the vast open areas which surrounded their factories, indiscriminate building activity had commenced as a result of which they were virtually surrounded by housing colonies. These buildings were sought to be constructed closer and closer to the factories and even though the petitioners had been protesting about this, building permissions continued to be granted as a result of which thousands of flats were being put up in the immediate vicinity of the factories. The petitioners pointed out that even though they were taking all necessary steps to maintain safety, that the Bhopal tragedy was eloquent proof of the fact that an accident or a leakage could occur at any time and that, therefore, the risks were enhanced by allowing residential areas around the factories and that, consequently, this was quite impermissible. The petitioners'' basic contention was that the Government and the Planning Authorities were bound to maintain a buffer zone of at least a kilometre radius around each of the factories purely from the safety angle and that, consequently, all further building activity within this radius was required to be stopped.
9. It is the case of the petitioners that they came to know of the Division Bench order from the newspapers and that in spite of their best efforts, it was extremely difficult for them to get copies of the relevant records, judgment, etc. After obtaining the same, the petitioners filed a SLP before the Supreme Court. They contended that they were necessary parties to the original petition, but regardless of that fact that the judgment adversely affected them, that they are aggrieved by the same and that, consequently, they should be permitted to appeal against that order. Since this aspect of this case is of some importance, we have reproduced below the whole of the order passed by the Supreme Court dated 6-2-1991.
"This SLP is directed against the Judgment of a Division Bench of the Bombay High Court in Writ Petition No. 4497 of 1990. The High Court allowed the said writ petition and struck down a communication from the Bombay (sic-Thane-Ed.) Municipal Corporation, respondent No. 2 herein, informing the petitioners in the said writ petition, who are arraigned as respondents Nos. 3 to 18 before us, that their application for permission to develop the property, namely, the land in question situated at Village Balkum near Thane, was rejected in view of the representations submitted to the Government by the owners of chemical factories situated in the said village, who are the appellants/petitioners herein that no building construction permission should be granted within a certain distance from the said factories. The petitioners in the SLP are some of the said chemical factories. They were not joined in the writ petition as respondents and have prayed for leave to file the SLP on the ground that the judgment adversely affects them and they are aggrieved by the same.
Permission is granted. Leave is granted. Counsel heard.
We find that appellants can be said to be parties aggrieved by the impugned judgment, even if they are not regarded as necessary parties in the writ petition. In the facts and circumstances of the case, we find that there if no need to set aside the impugned judgment of the Bombay High Court at the instance of the appellants. The appellants are, however, given liberty to file a review petition before the Bombay High Court for reviewing the impugned judgment, within a period of four weeks from to-day. In our opinion, it is proper that the entire controversy to which the judgment relates should be determined in the light of the submissions which may be made by the appellants.
In these circumstances, we direct that the review petit ion, if filed, shall be entertained by the Bombay High Court and the appellants will be given a hearing as if the matter were heard afresh as far as they are concerned. It is clarified that the hearing of the review application will not be confined to the normal grounds on which a review can be sought but the entire controversy will be regarded as open as between the appellants herein and the respondents.
The interim order made by this Court on January 8, 1991 will continue to remain in operation till the review petition is decided by the High Court. However, it will be open for the High Court to vary or vacate the interim order on appropriate applications made to it by any of the parties or by any of the interveners here. If the review petition is not filed within the said period of four weeks, the appeal shall stand dismissed and all interim orders passed by us shall be deemed to be vacated.
In our opinion, the review petition deserves to be disposed of with expedition and we would, therefore, request the High Court to dispose of the review petition, if filed as aforestated, within four months from today and in any event by the 30th September 1991.
The matter shall now be placed before the learned Chief Justice of the Bombay High Court for passing appropriate directions. The appeal is disposed of as aforestated with no order as to costs."
10. It was pursuant to the leave granted in this SLP (Civil) No. 16985 of 1990 that the petitioners filed the present Review Petition dated 6-2-1991. It is material for us to record that the review petitioners for good reason, and very correclty, joined as many as 129 parties as respondents in so far as the demand of the petitioner is to the effect that no further residential buildings should be permitted in the vicinity of the chemical factories in question; whereas something like 29 writ petitions had been disposed of on the same lines as the original one and all these parties had contended that they were eligible to carry on with the constructions. The Supreme Court had passed an interim order on January 8, 1991 suspending the construction activity, but that interim order was sought to be interpreted as binding only the parties in the Sonam case since it was against the judgment dated 8-11-1990 that the original Special. Leave Petition had been filed. This controversy had come up before the High Court before another Division Bench and the High Court had specifically directed the respondents to implement the Court orders. In the meanwhile, the Review Petition that has been filed had not been heard for a variety of reasons and the petitioners, therefore, moved the Supreme Court once again by way of an interim application with a two-fold grievance, the first being that the interim orders suspending construction activity should cover all cases, and secondly, that the review petition be disposed of as expeditiously as possible. Since there was considerable debate with regard to the scope of this review petition, we propose to reproduce the order of the Supreme Court dated February 24, 1993, which is set out below :--
"By an order made on February 6, 1991, this Court (Ranganath Misra, C.J., M. H. Kania and Kuldip Singh, JJ.) disposed of Civil Appeal No. 578 of 1991 directing the appellants (applicants herein) to file a petition in the Bombay High Court seeking review of the order impugned in the said appeal. It was directed that if such a review petition is filed within the period prescribed, ''the hearing of the review application will not be confined to the normal ground on which review can be sought but the entire controversy will be regarded as open as between the appellants herein and the respondents.'' It was further directed that ''the interim order made by this Court on January 8, 1991 will continue to remain in operation till the review petition is decided by the High Court. However, it will be open for the High Court to vary or vacate the interim order on appropriate applications made to it by any of the parties or by any of the intervenors here.....in our opinion the review petition deserves to be disposed of with expedition and we would, therefore, request the High Court to dispose of the review petition, if filed as aforestated, within four months from today and in any event by September 30, 1991.'' The matter was directed to be posted before the learned Chief Justice of the Bombay High Court for making appropriate directions.
The appellants have now come forward with this application complaining that while not disposing of the review petition filed by them till now, the High Court has, under the orders impugned herein, directed that Municipal Corporation of the city of Thane and the State of Maharashtra ''to implement the order dated November 29, 1990 and Writ Petition No 5189 of 1990 on or before January 15, 1993 without prejudice to the rights and contentions of both sides''. Under the order dated 29th November, 1990 the Bombay High Court had quashed the communication of the respondent-Corporation dated January 9, 1990 and directed the Corporation to ''consider revalidation of the petitioners'' plan sanctioned on August 11, 1989 vide commencement certificate Exh. B to the petition in accordance with law without taking into consideration the reason mentioned in the said communication dated January 9, 1990 Exh. C to the petition within eight weeks from today.'' In short, the effect of the order is that it directs the Corporation to revalidate the plans submitted by Sri Sai Baba Construction Company and certain other persons (petitioners in Writ Petition No. 5186 of 1990) which were sanctioned earlier on August 11, 1989 but which came to nought by virtue of the communication dated January 9, 1990.
Briefly stated the dispute is this: The appellants are manufacturers of chemicals and drugs. They have their factories within the limits of Thane municipality. At the time these factories were established there were no residential buildings anywhere near these factories. In course of time, however, many builders and other private persons have come forward to construct buildings in the vicinity of these factories. The appellants-applicants say that hazardous substances and gases are stored and utilised in the said factories and that the danger of an explosion or a leak like the one that took place in Bhopal in 1984, cannot be ruled out. If any such accident happens it may lead to greater damage to human life than at Bhopal. To guard against any such eventuality, they say that within a radius of one kilometer, no residential buildings should be allowed to be constructed. It is on this basis that they had come to this Court in Civil Appeal No. 578 of 1991 and it was this submission which this Court requested the Bombay High Court to consider in the review petition filed by the applicants.
It may be noted that Civil Appeal 578 of 1991 was preferred against the judgment of the Bombay High Court in Writ Petition 4497 of 1990. Besides the petitioners in Writ Petition 4497 of 1990 there are several other builders and other persons who have obtained permission and who propose to construct residential complexes and houses nearby these factories. Probably, their construction may fall within one kilometer radius. Since all of them were not parties to Civil Appeal 578 of 1991, the appellants-applicants have sought to implead them. The persons proposed to be impleaded say that they were not parties to the order dated February 6, 1991 in Civil Appeal No. 578 of 1991 and are therefore not bound by the said order. They also say that their plans were sanctioned by the Corporation earlier and that they are entitled to construct according to the sanctioned plan. They have referred to the development plan said to have been approved by the Corporation recently, based upon expert opinion, regulating the construction activity in the vicinity of the said factories. They say that this approved plan negatives the claims and apprehensions urged by the applicants. It is, however, not necessary for us to pronounce upon the correctness and validity of submissions of either of the parties in view of the directions we are making herein.
We are saddened to notice that in spite of the Court''s request contained in its order dated February 6, 1991, the High Court has not disposed of the review petition till now. The High Court was requested to dispose of the said writ petition within four months from the date of the said order and, at any rate, by September 30, 1991. It is more than two years since the order was made. While we certainly respect the independence of the High Court and recognise that it is a co-equal institution, we cannot but say, at the same time, that the constitutional scheme and judicial discipline requires that the High Court should give due regard to the orders of this Court which are binding on all Courts within the territory of India. The request made in this case was contained in a judicial order. It does not credit to either institution that it has not been heeded to. We hope and trust that the delay in disposal of the review is either accidental or on account of some or other procedural problem. Be that as it may, the present situation would not have arisen if only the review petition had been disposed of within the lime contemplated in the order dated February 6, 1990. We cannot also reject out of hand the contention of the appellants-applicants that the order dated December 18, 1993 in Civil Application 5929 of 1992 in Writ Petition No. 5189 of 1990 tends to make the review infructuous; if constructions are allowed to come up within one kilometer radius before the review petition is disposed of, the review petition even if allowed, would be of little effect.
In this view of the matter, the I.A. is disposed of with the following directions:
(1) We reiterate our request to the High Court to dispose of the review petition expeditiously, at any rate within two months of this order.
(2) Pending disposal of the review petition, the status quo obtaining as on today shall continue within one kilometer radius of the appellants'' factories. While the constructions already made shall remain as they are, no further construction activity shall be carried on within the said area.
(3) The applications pending for permission for construction or for sanction of construction plans may be processed by the Corporation in accordance with law and orders passed. But no construction activity shall take place within the said radius even if permissions are granted or sanctions are revalidated, as the case may be. The orders passed, permissions granted or sanctions re-validated shall be subject to the result of the review petition aforesaid.
"There shall be no order as to costs."
This order clarified the position that the embargo with regard to any building activity within a radius of 1 km. from the factories was to cover all the cases. Consequently, the petitioners were perfectly justified in citing all the parties who were involved in the entire set of petitions before the High Court as respondents to this Review Petition. In sum and substance, therefore, this Review Petition is virtually a reconsideration of the final orders passed by this Court in the earlier 39 cases.
11. We need to record here that the Supreme Court by its earlier judgment dated 6-2-1991 had granted the petitioners the liberty of filing the Review Petition before the High Court, but it had observed that it was unnecessary to set aside the High Court order. At the same time, the Supreme Court had granted the petitioners liberty to expand the scope of the Review Petition in so far as they were permitted to agitate all issues concerning the matter under controversy in their Review Petition which they have, in fact, done. A perusal of the Review Petition, which runs into 586 pages with annexures, will indicate that the petitioners have presented a very elaborate and a very substantial challenge which is miles beyond the narrow controversy that was before the High Court when it decided Petition No. 4497 of 1990 in November 1990. This is only one aspect of the matter, the other one being that from the two additional angles, namely, the fact that the type of project, the location of the project and the timing in respect of the project differs from case to case. For example, it was pointed out to us that depending on what view the Court takes, certain areas could come within the radius and certain would be outside. Effectively, therefore, each of the parties have filed very elaborate pleadings some to distinguish their cases and others to justify their stand that the prayers of the petitioners should not be granted. Secondly, there were some of the parties who appeared as inter-veners, one of whom was Colourchem Ltd. who did not join in the original Review Petition, but appeared before us and supported the petitioners all the way. The other set of intervenes consisted of persons who may have completed their projects or those who would be indirectly affected or those who could be affected depending on what view the Court took. In sum and substance, therefore, it was this entire gamut of litigations representing effectively six petitioners and more than 129 respondents who are before us in this Review Petition. We have adverted to this aspect of the matter in order to record that by virtue of sheer numbers of parties and their learned counsel on the one hand and the pleadings running into thousands of pages on the other hand that the hearing of this petition, which commenced on 3-12-1993, proceeded day to day until 27-1-1994 when the oral arguments were concluded. The learned counsel appearing on behalf of the various parties requested for a few weeks'' time in order to set down on paper their written submissions which they did in the following few weeks. We have, thereafter, as expeditiously as was feasible, re-examined the entire record placed before us which involved a detailed study of several thousands of pages of written submissions and have proceeded to deliver judgment.
12. Only one feature that remains to be recorded is the fact that the Review Petition was required to be placed before the same learned Judges who had originally decided Writ Petition No. 4497 of 1990. When the Bench was ultimately formed, the learned Judges after examining the matter opined that a procedural hurdle had arisen in their way in so far as the Supreme Court had not set aside the original judgment dated 8-11-1990 which formed the subject-matter of SLP No. 16985 of 1990 and in these circumstances, the Bench observed that it could lead to embarrassing consequences if after hearing the matter the Court were to come to a decision other than the earlier one which had not been set aside and, therefore, opined that it was desirable that some other Bench should hear and dispose of the petition. It was in these circumstances that the proceedings were placed before this Division Bench for hearing which is a Bench other than the one which heard the original matter.
13. There was a considerable degree of controversy at the earlier stages of this hearing in so far as the learned counsel on behalf of the petitioners contended that the Supreme Court had very clearly defined the ambit and scope of the Review Petition to that as extending to all issues concerning the controversy between the parties and that, therefore, they were justified in going into she dispute in its entirety and were not circumscribed by the scope of the original petition being Writ Petition No. 4497 of 1990 or for that matter the limited ground on which that challenge was based or the reasons on which the petition was allowed. It was precisely for this purpose that we have reproduced both the orders of the Supreme Court, the first one dated 6-2-1991 and the second one dated 24-2-1993. The learned counsel appearing on behalf of the respondents first contended that the law necessarily limits the scope of a review petition to the extent that it only permits a reconsideration within the original framework of the material placed before the Court and that the omnibus challenge put forward in this petition cannot be agitated. In other words, it was vehemently contended that even if the petitioners succeed in pointing out that the judgment dated 8-11-1990 requires a review or that it is liable to be set aside, that the petitioners will then have to separately pray for the reliefs that are contained in the present petition through a separate writ petition. In support of this contention, it was pointed out by learned counsel that the petitioners'' interpretation of the Supreme Court orders was incorrect. They contended that one of the grounds on which a review is permissible in law is that the crucial material contained in the petition or other very relevant and substantial material had not been considered by the Court on the earlier occasion. If the Court is satisfied that this is not an empty averment but that the review petitioners are justified in their application, it would, therefore, be open to the Court to set aside the original order and permit a de novo hearing of the earlier proceeding in its original form only.
14. Though at first blush it would appear that this contention was a highly technical one and that it would seem academic for the High Court to once hear the petitioners and examine the material in the Review Petition and then do so again after driving them through one more round of presenting a fresh challenge through a fresh set of petitions, the question was seriously agitated by the learned counsel on behalf of the petitioners in so far as they maintained that it would affect the validity of the final orders passed by this Court. It was essentially their submission that since the petitioners did not file a Review Petition before this Court against the original judgment dated 8-11-1990, but took the extraordinary step of going directly to the Supreme Court, and presenting a Special Leave Petition, even though they were not parties before the High Court, the Supreme Court refrained from the lengthy exercise of examining all the material relied on by the petitioners and being prima facie satisfied that they had made out a case and were entitled to consideration, remanded the matter to the High Court giving the petitioners liberty to include all their material in the Review Petition. What, in effect, was sought to be argued was that the purpose behind not setting aside the order of the High Court was because the Supreme Court desired that an examination be done in the first instance as to whether the petitioners have made out a case for re-opening the dispute and, if so, that the original order would have to be set aside and the petitioners given an opportunity to re-agitate the matter. Learned counsel for the respondents vehemently contended that the Supreme Court has used the expression "Review Petition" in its order which meant that the present proceeding will have to be treated only as a Review Petition and confined to the narrow scope of such a proceeding. While Mr. Seervai has contended that the Supreme Court defined the ambit as extending to "the entire controversy to which the judgment relates should be determined in the light of the submissions which may be made by the appellants" and thereby meant that the case be decided de novo, the respondents contended that this was never the intention as in that case the Supreme Court would have set aside the High Court judgment and remanded the matter for a de novo hearing after directing that the petitioners be added on as parties and permitting additional pleadings. Basically, the case of the respondents is that any order passed by this Court other than confirming, modifying or reversing the decision dated 8-11-1990 would be an order without jurisdiction as it would be outside the scope of a Review Petition.
15. We have read and re-read the directions of the Supreme Court and the circumstances in which the case has come back to this Court. In our considered view, the Supreme Court did not follow the course of setting aside the judgment dated 8-11-1990 and remanded the matter because in that event the procedural problem would have arisen in so far as the present petitioners, even if added on as parties to the original petition, could never have been made co-petitioners and an extremely incongruous situation would have arisen. The Supreme Court also did not consider it advisable to direct the petitioners to institute a fresh challenge by way of a separate petition being conscious of the time factor involved which was crucial and in so far as the dispute was inherently linked up with Writ Petition No. 4497 of 1990 and the remaining petitions. It was, therefore, necessary to virtually maintain the status quo to the extent that the original petitioners had to be given an equally fair chance of defending the orders passed in their favour while at the same time it was essential that the very substantial issues projected by the present petitioners, if found to be strong enough to warrant reliefs from this Court be simultaneously examined and decided. One needs to take into account the time factor and the limited judicial time available and it was obviously on these grounds that the Supreme Court virtually synthesised a review of the earlier matter and an adjudication thereof.
16. Having regard to this situation, we have no hesitation in holding that the challenge of the respondents with regard to the restrictive scope of this proceeding is devoid of substance. The normal limitations in respect of a Review Petition would only bind down a Court in a case where the usual circumstances were present, namely, where an application for review is filed by one of the parties to the original proceedings on the ground that some vital material or some very basic aspect of law has escaped a consideration. These restrictions would not be valid in the present case where the Supreme Court has directed this Court to first consider whether the original decision requires a review and, if so, to thereafter adjudicate the controversy. We do not see the propriety behind the respondents'' insistence that even if the original orders were to be modified or set aside that the petitioners'' basic challenge should be delinked from that aspect and heard separately through a separate proceeding. The review petitioners have proceeded on the assumption that both stages of the matter would be considered one after the other and the respondents have filed their replies on that assumption and we have accordingly heard the entire matter on merits. We do not subscribe to the view that this Court would be exceeding its jurisdiction and that the scope is confined within the straight-jacket formula of a traditional Review Petition. The situation in law is quite familiar where several proceedings which are inter-linked or overlapping are heard by the Court in a group and similarly in this situation even if the petitioners had been pushed to the academic exercise of filing separate writ petitions in respect of the remaining heads of challenge, nothing would have prevented the Court from listing those petitions and hearing them together. The end result would have been one and the same with a considerable saving of judicial time.
17. The substantial argument that was canvassed on behalf of the original petitioners, and that too rather weakly, was that the respondents have not been afforded the full opportunity of defending their case to the hilt. They contend that there is a substantial amount of material which they would place before the Court if they were formally required to defend a petition filed by the present petitioners. According to them, they have essentially limited the scope of the pleadings to that of a Review Petition and it would, therefore, be unfair to them in these circumstances if the present Review Petition were to be treated not only as a review, but as a Writ Petition praying for substantial reliefs. Frankly, we see little merit in this line of argument because as we shall presently point out as far as the facts are concerned, the parties have been permitted by us not only to file their pleadings but, more importantly, we have given them unrestricted scope to produce compilations containing whatever material they desire the Court to consider. All the parties have availed of this facility to the full and the record before us has exceeded 90,000 pages and, in these circumstances, nobody can be heard to say that they were in any manner hampered or handicapped. Even after the hearings were concluded, for several weeks thereafter very detailed compilations of written submissions and counter-submissions were tendered which we have taken on record and considered carefully; that any more material could have come before the Court or that it was prevented from being placed before the Court would, therefore, be a total fallacy.
18. Having regard to the fact that the present petitioners originally moved the Supreme Court and that it was after some hearings before that forum that the Supreme Court virtually remanded the matter with certain directions, it is quite evident that even the Apex Court seriously felt that the judgment dated 8-11-1990 required reconsideration. Mr. Seervai on behalf of the petitioners contended in all seriousness that neither the petitioners nor the respondents had placed before the Division Bench on an earlier occasion the full facts relating to the present controversy. He alleged that this was deliberately done and in support of his contention, he pointed out to us that the petitioners had made it appear to the Division Bench that the Planning Authority; namely, the T.M.C., had rejected their permission to develop certain plots merely because some representation from the petitioners-companies was pending consideration before the Government. Also, it was projected that the authorities concerned had rejected the permission because the development plan was being reviewed. On the other hand, both the T.M.C. and the State Government were unduly cryptic in their defence in so far as the pleadings as also the judgment of the Division Bench do indicate that the real gravity of the problem was not even indicated to the Court on that occasion, namely, that the present petitioners constitute an industry which falls in a very special category, namely, that they store and utilise hazardous chemicals in a very large volume and, furthermore, that those chemicals could pose a serious threat to public health and safety and that they could also endanger life. After the sad experience of Bhopal, the petitioners themselves had insisted that the Government authorities should ban residential buildings in the near proximity of the companies in question and this was precisely the angle that was never brought to the knowledge of the Division Bench. As we shall presently illustrate, the fact that a large number of residential buildings have already come up in the area and that it was virtually turning into an urban high rise residential complex virtually surrounding and touching the six chemical units in question was again not highlighted before the Division Bench. The original petitioners put forward their case as though it was a routine question of granting permission under the M.R.T.P. Act and that the authorities had acted mala fide by rejecting the permission on unsustainable grounds and it must be stated that very unfortunately the respondents did nothing to indicate that the real complexion of the case had been totally suppressed from the Court. We see considerable substance in Mr. Seervai''s charge that both the parties, the original petitioners on the one hand and the original respondents on the other are guilty of suppression of vital and material aspects of this case which was why when it appeared like a routine run of the mill proceeding, the Division Bench disposed of the same at the admission stage itself, holding that the rejection order was improper. All that the Division Bench did was that it directed the respondents to re-examine the plans and pass appropriate orders before December 15, 1990. This direction was unfortunately misconstrued by all the parties as meaning that the Division Bench had directed that orders in favour of the then petitioners M/s. Sonam Builders ought to be passed. This was not the case at all and, in our considered view, the authorities would have been fully justified in still refusing permission on the ground that it was too dangerous to permit residential buildings, that too in an industrial zone and, more importantly, in the immediate proximity of companies using hazardous chemicals. It is in these circumstances that we consider it absolutely essential to hold that the judgment and order dated 8-11-1990 as also the entire set of orders that came to be passed on the basis of the original judgment require to be set aside. We propose to issue at the end of this judgment certain directions that will hold good in this and all other cases relating to situations of this type. We do concede that normally it is the function exclusively of the Planning Authorities in the Municipal Corporations to ensure that residential areas and industrial areas are separated from each other. The whole essence of planning presupposes that a master plan will be drawn up for this purpose and while doing so that the concerned authorities will have the good sense to ensure that they do not permit people to live in the immediate vicinity of industries using toxic and dangerous chemicals that could do long-terms damage to human beings of all ages or even kill them outright. One does not require elaborate and specialised knowledge for this purpose, but plain common-sense and the recent experiences in different parts of the world are sufficient basis to hold that some reasonable distance must separate residential areas from the factories dealing in hazardous chemicals. This is all the more so important because our own Supreme Court in the Sriram case had occasion to lay down that a buffer zone for a safety distance by way of a 1 km. radius in the least all around was absolutely essential.
19. We are conscious of the fact that under the seemingly respectable term of "development", what is sought to be done is that the authorities and in particular the elected representatives of the people are persuaded to take a long jump over the well-defined principles of planning and at times on the basis of some special arguments and considerations, are prevailed upon to even modify existing plans, rules and regulations to absurd limits. Even where a general policy is laid down by the Government, all sorts of allowances are made for obvious reasons . turning the entire process of planning into utter chaos. One needs to only look at the many instances where green areas are turned into commercial complexes and the manner in which F.S.I. rules are bent to assist favourites. We shall presently illustrate that even in the present case it was seriously argued on the basis of a particular interpretation that was put to para 49 that even in industrial areas, regardless of the risks to life, residential complexes should be permitted. The essence of zoning is defeated through such a process. It is these issues which are not only one of utmost importance but which are vital for the very survival of the human race, that fall for decision in the present case. The accent on environmental considerations is another angle which has surfaced not in the recent past and if the authorities chose to act in breach of those fundamental rules then the Courts will have to ensure that they observe them. We make this observation though we are fully aware of the fact that issues such as land use, zoning, planning and the like are to be generally left within the domain of the experts and that the Courts would normally not interfere with their decisions or for that matter sit in judgment over those issues. This, in substance, is the well-defined position in law, but the very essence of judicial review requires that where the authorities or experts in whom public trust is reposed and from whom it is expected in matters of public welfare and public safety, go along to the extent of playing havoc with areas so fundamental as to threaten the human existence itself, then the Court will have to take cognizance of the overriding need to make an exception and to intervene.
20. Apart from the generalities of the case, coming to a few specific angles, we need to record that the judgment in the Sonam Builders case proceeds on the footing that the lands, admittedly, fall within the residential zone and that, therefore, residential buildings should normally be permitted. This position is not free from doubt and, therefore, the very premise on which that judgment is based is erroneous. The Court was unfortunately not posted with the correct facts by any of the parties, the respondents included, and we would prefer to refrain from commenting as to how and why this could have happened, Apart from this, there are certain factual inaccuracies that are reflected in the judgment which again are unfortunately due to the fact that incorrect material was placed before the Court. Firstly, the impression was created on the Court that D. K. Jain, the then Secretary, Urban Development, had issued oral directions which position is factually incorrect as demonstrated by the record. Secondly, the role of Dr. Garg, who admittedly was an expert, was grossly underplayed and the impression created on the Court was that the permission sought for had mechanically been rejected virtually on a stop-gap basis because of some representation from the chemical industries. The fact that an issue of exceptional importance, namely the serious exposure to lethal consequences of the residents if they were permitted to live in the immediate proximity of the chemical industry, was an overriding consideration which the Government had seriously applied its mind to and it would have been perfectly justifiable to consider this as relevant material under S. 46 of the Maharashtra Regional and town Planning Act, was again never highlighted either by the T.M.C. or the State Government. This aspect of the case again totally escaped the Court''s attention because of the manner in which the case was presented and defended. It is principally on these considerations that the Supreme Court directed a rehearing of the case and being satisfied that had this material been placed before the Court and duly highlighted instead of its being grossly underplayed that the petition would never have been allowed, that we are required to review the judgment in question. The limited relief granted by the Court at that point of time was that the order rejecting the permission was set aside and the authorities were directed to reconsider the matter. The effect of that order, however, is very far-reaching in so far as if the permission ought not to have been granted and could not have been granted, then the order of rejection would have to be treated as a valid one and no further directions to the respondents would have been necessary.
21. It is necessary for us to record here that Mr. Seervai was quite vehement in the course of his initiate submissions in justification of a review that both the original petitioners as also respondents Nos. 1 and 2 to that petition, namely, the T.M.C. and the State of Maharashtra had deliberately suppressed from the Court not only the real complexion and gravity of the case but, more importantly, a greater part of the record which, if produced, could never have resulted in the order that was passed and he categorised this as deliberate suppression. If the original petitioners decided to state as little as possible and to virtually project only the minutest tip of the iceberg, they could not be said to have acted fairly or honestly with the Court, but respondent Nos. 1 and 2 not placing significant material before the Court was quite unpardonable, because it was purusant to the initial order that there was a rush of similar petitions and all of them had to be allowed. Significantly enough, at no later stage even when the authorities realised the consequence of their inaction or non-action when the first petition was taken up and the fact that dozens of buildings would come up in that area, the respondents still did not do anything in the matter to rectify the situation nor, as pointed out by Mr. Seervai, did they carry the matter in appeal to the higher Court.
22. We do see considerable justification in the charge of suppression and we outline below list of ten sets of documents crucial to the decision of this case, all of which were in the records and which were not either referred to or brought to the notice of the Court.
i) Environmental Guidelines to Sitting of Industry (Report of Working Group, Ministry of Environment and Forests, Government of India).
ii) Report of Environmental Safety Committee on Thane-Belapur Area Maharashtra Pollution Board-Sitting Guidelines.
iii) Control of major hazards in India (International Labour Organisation, Geneva).
iv) Report of Inter-Ministerial Group, Department of Chemicals and Petrochemicals, Ministry of Industry.
v) Only covering letters of three applications u/s 44 annexed to the Sonam Petition without the actual applications and supporting documents.
vi) Draft Code of Practice on "Major Hazard Control" (ILO, Geneva).
vii) Letter dated 6th January, 1990 from D.K. Jain Principal Secretary to M. B. Choube (Thane Municipal Commissioner) to keep Paragraph 49 in abeyance.
viii) Correspondence between the Government and Dr. R.K. Garg regarding terms of reference for his reports, etc.
ix) Dr. R.K. Garg''s Report (I) dated 10th April 1990 with reference to his visit to Glaxo.
x) Dr. R.K. Garg''s Report (II) dated 24th May, 1990 after completing survey of remaining six industries.
23. This could not have happened by accident. Additionally, there is abundant material on record to indicate that the petitioners had been agitating the issue vigorously for quite some time and they were necessary parties to the dispute. Mr. Gor, who appeared on behalf of the original petitioners, at a very belated stage of the proceedings, attempted to canvass the plea that the petitioners were unaware of any such development. This, to our mind, is a weak attempt to cover up for virtually indefensible situation. The irresistible conclusion is that the review petitioners are right when they contend that none of the material that was relevant to the decision of this dispute was placed before the Court and, more importantly, had the review petitioners been impleaded, they would have most certainly brought this material on record and we have little doubt in holding that they were deliberately kept out. That the earlier decision, therefore, proceeded on the basis of a truncated record and in the absence of the real contesting parties and, therefore, requires reconsideration is certain.
24. We will only briefly deal with the purely academic submission canvassed on behalf of some of the respondents by learned Counsel which was to the effect that this Division Bench, being a Court of co-ordinate jurisdiction, is legally debarred from interfering with the earlier Division Bench judgment and that even if that very Court could have reconsidered the judgment that another Bench cannot do so. The objection proceeds on the footing that this Court lacks the jurisdiction to override the earlier decision and, therefore, that it cannot be interfered with. We find it quite unnecessary to debate these so called legal intricacies purely in a vacuum because that the Court did nothing beyond directing the authorities to reconsider the matter within a specific time period. Nothing was really decided by the Court and, therefore, we do not see the real justification for any such objections. That the authorities did consider the matter and pass certain orders thereafter is not the issue before us. The central core of the challenge before us proceeds on the footing that there are valid reasons for curtailing residential activity within the close proximity of the chemical factories and that the same should not be permitted. The grounds on which this issue is canvassed and the material in support thereof were never the subject-matter of the earlier litigation in the true sense of the word, nor were any findings recorded thereon. The position that, consequently, emerges is, therefore, that the decision of the Review Petition does not involve the setting aside of the earlier decision but proceeds on a parallel basis.
25. Lengthy arguments were advanced before us by learned Counsel appearing on behalf of the respondents that the scope of the Review Petition is limited to the dispute that was before the earlier Court, namely, the order of the Thane Municipal Corporation dated 12/16-1-1990 land whether it was sustainable in law or not. Again, learned Counsel have contended that a distinction will have to be drawn between a review and a fresh challenge. We do not agree with the objections canvassed by learned Counsel on behalf of the respondents that a review has to be confined only to a reassessment of the original record. Even the law contemplates ah exception such as the typical situation where aspects of law or more importantly vital material that would swing the decision otherwise has escaped the Court''s notice. Apart from this, the Supreme Court has itself issued a clear directive to the effect that all issues touching the subject-matter in dispute are to be agitated in this petition. The petitioners seek to contend that this would mean the basic question as to whether residential accommodation can be permitted within the close proximity of the chemical units; whereas the respondents maintain that it is confined to the issue as to whether the T.M.C. was justified both on facts and in law in rejecting the permission sought for purely on the ground that certain objections were pending with the Government and that the matter was under consideration. We get a definite indication of the scope of the petition from the fact that prior to filing of the present Review Petition, the petitioners before us had approached the Supreme Court on identical grounds and the Supreme Court was aware of the real nature of the dispute, its character and complexion and, therefore, desired that the High Court should examine the matter thread bare and adjudicate on it. This is even clear from the fact that when the interim orders were passed by the Supreme Court, they did not relate to the circumstances in which the building permission was to be granted or otherwise, but the interim order prohibited the building activity within a radius of 1 km. It is, therefore, self-evident that when the Supreme Court referred to the "entire issue", it had in mind this aspect of the dispute.
26. Having disposed of the procedural objections raised and seriously canvassed by the respondents before us, we proceed to deal with the main subject-matter. It is pointed out that the present petitioners, who are relatively large companies having their manufacturing units in that area, had shifted out to those sites in the late fifties and earlier sixties. The production processes necessarily require them to use hazardous and highly explosive/ inflammable chemicals. It is their case that they have at all times maintained the most rigorous safety standards and that they have taken all precautions to avoid industrial accidents and that they have also complied with the regulations relating to safety. After the Bhopal tragedy of 1984, awareness in respect of environment and, more importantly, safety of human being, resident in the immediate proximity of such chemical units came into sharp focus. Various guidelines/units of the Government and other agencies came to be published, the first of which was entitled "Environmental Guidelines for setting industry", which was a report of the working group and was published by the Ministry of Environment and Forest, Government of India, in August 1985. The Government had issued very clear environmental guidelines for purposes of continuing and minimising the harmful effects of the industries and one of the heads prescribed certain minimum distances that are required to be maintained in some cases from forests to the coastal area, rivers, transport and communication system, major settlements where there was a predominance of human habitation also architecturally and historically sensitive areas where there were monuments, places of scientific installations, defence installations and the like. While dealing with the Sitting criteria, it was specified that the economic and social factors are to be recognised and assessed and there was a specific provision which prescribes that there should be a green belt 1/2 km. wide around the battery limit of the industry and 1 km. wide for industries having an odour problem. The separation distance in respect of two adjoining large-scale industries was prescribed as 1 km. For the first time in this country, the Central Government had specifically directed that the environmental effect had to be taken into account at the planning stage itself, particularly in the case of industries involving the manufacture, handling and use of hazardous material. This was because the study group had gone into the aspects of the effects even on the atmosphere and the surrounding , areas, particularly as far as the air and water because of affluents and not only the immediate damage aspect. Realising the grave consequences as far as the air pollution is , concerned, the report clearly prescribed that even though the emission levels of the pollution must be controlled to the standard prescribed by the Central and State Government Boards, which would mean that the ill-effects should be minimal. The Government had prescribed that community buildings and townships should not be built up within the one-half to one kilometre green belt in addition to the physiographical barrier. Mr. Seervai has commenced his arguments with a reference to this report for purposes of pointing out that it was not some international authority or body that had examined this issue, but that it was the Central Government of this country itself which had done a careful study of the dangers and prescribed these guidelines as early as in 1975.
27. Mr. Seervai has then relied on the reports published in 1985-86 by the Maharashtra Pollution Control Board prepared by the Environmental Safety Committee. This Committee was specifically set up to consider the safety measures that are necessary in relation to industries handling hazardous chemicals. We are not immediately concerned with the various safety measures that have been made compulsory by virtue of this report except one of them which directly deals with the subject-matter of the present dispute whereby it was recommended that new buildings and hutments should not be allowed to come up near factories handling hazardous chemicals.
28. Mr. Seervai thereafter placed reliance on the report of the Inter-Ministerial Group entitled "Safety in Chemical and Petrochemical Industries" published by the Department of Chemicals and Petrochemicals, Maharashtra and Industries Department, Govern- ment of India in 1986. The Review Panel and Expert Groups included experts from the Government as also from the public sector and the private sector. The report has very clearly prohibited human habitation in the vicinity of hazardous industries and has directed that the development of colonies in the vicinity of hazardous installations must be restricted. The recommendation is very clear about the fact that a safety buffer zone or green belt around the installation is essential and that no human habitation should be permitted within at least 1 km. radius of an industrial estates housing hazardous plants. Again, Mr. Seervai emphasised the fact that the group noted that these aspects fall essentially in the domain of the State Governments and, therefore, their attention was drawn to this requirement for purposes of adoption.
29. While on the subject we do consider it relevant to deal with another document produced by Mr. Seervai which is the draft code of practice on Major Hazards Control published by the International Labour Office, Geneva, in August 1989. The International Labour Office, on the very lines as indicated by our own Government authorities had provided for a minimum separation distance in respect of hazardous chemicals. In the case of liquified petroleum gas and the like, a separation distance of 1 km. was provided and similarly in the case of chlorine, liquid oxygen, hydrogen and ethylene oxide, similar separation distances were indicated. As far as the Sitting was concerned, there was a specific recommendation to the effect that the authorities must ensure that major hazardous installations are adequately separated from people living and working nearby and under clause 8.55, it was pointed out that it was essential to ensure that new developments should not be permitted to come up close to major hazardous installations wherever such development would contain significant number of people. Mr. Seervai emphasised the fact that the report of the Inter-Ministerial group had also prescribed certain prohibitions as far as human habitation was concerned within a radius of at least 1 km. of an industrial unit housing hazardous plants and a safety buffer zone or green belt shown around the installation. All this material has been relied upon for purposes of establishing that quite apart from the concern shown by the petitioners themselves that the concerned Government agencies were not only alive to the dangers in question, but that they had also issued requisite instructions for purpose of ensuring safety around these installations. There can be no two opinions with regard to these submissions canvassed by Mr. Seervai that the precautions taken as far as the environmental damage is concerned coupled with the precautions taken to eliminate leakage or accident and the steps taken to control the damage in such an event are all good enough to eliminate the possibility of a disaster. It is this argument that are in agreement with it completely, but the fact remains that disasters have taken place in spite of all these and far more sophisticated efforts, not only in Bhopal but also in different parts of the world and that, therefore, there can be no compromise with regard to the aspect of human safety. There are two aspects to this argument, the first of them being the day to day considerations, namely, the harmful effects to human beings of all ages if they perpetually reside within the proximity of such chemical units. It goes without saying that the closer you get, the greater the exposure, the higher the risk and the heavier will be the damage. It is true that steps are required to be taken in order to monitor the emission levels into the atmosphere as also other forms of effluents. There has been much correspondence between one of these industries and the commanding officer of the adjoining air-force base whereby the industry was accused of not conforming to the pollution levels. We have to unfortunately take judicial notice of. the extremely poor enforcement as far as the anti-pollution laws are concerned, of the meaninglessly low penalties prescribed and the fact that more often than not, the erring industries get away regardless of these provisions. Even in those of the instances, such as the present one where the petitioners solemnly contend that they belong to the category of responsible industries who observe to the letter every one of the pollution control requirements, the fact still remains that there could always be a breakdown of that equipment or a lapse, even temporarily, on the part of the concerned staff which is one aspect of the matter; whereas it is now universally accepted that the best of pollution control methods are still inadequate as far as the total elimination of harmful effects on the human body are concerned. The fact, therefore, that in such instances a safe distance between the industry and human habitation must necessarily be maintained is undisputable.
30. Mr. Seervai points out to us that on 22-2-1988, the Directorate General, Factory Advice Service and Labour Institute informed the first petitioner that it had been identified as a major hazard installation by the Chief Inspector of Factories. This letter is Exhibit "E" to the Review Petition and similar letters were addressed to the other review petitioners also. The letter also stated that there were 259 such hazardous installations holding/storing 46 chemical substances in the nine participating States in the project. A list of the identified hazardous chemicals along with the suggested Separation distances therefrom was enclosed. It, therefore, became evident to the petitioners that residential development in the vicinity of their factories should not be permitted. In the meanwhile, large-scale residential development was underway in that area and the petitioners, therefore, represented to the Collector, Thane Municipal Council and the State of Maharashtra to prevent the construction of housing complexes in the vicinity of their units. A specific reference was made to the proposed construction of "Ayodhya Nagar". The petitioners requested the concerned authorities to observe the separation distances that are required to be maintained from chemical factories. These representations are annexed at Exhibits J, K, L, M, N, O, P. Q and R to the Review Petition. The letter Exhibit "Q" dated 29-11-1989 asked the T.M.C. for the names of the builders seeking sanction of plans for construction of housing complexes in the area and sought inspection of the documents, but these details were not furnished.
31. It is then pointed out to us that on 4-1-1990, Mr. D. K. Jain, Member-Secretary, Urban Development visited the chemical units and they pointed out to him with the assistance of documentary material that such building activity should not be permitted/The petitioners also submitted a report dated February 2, 1990 to the Thane Municipal Council entitled "Town Planning & Chemical Industry in Thane". This report is a very comprehensive study on the factual position in that area and highlighted to the T.M.C. the grave danger of allowing residential development in the area but, more importantly, the absolute need to create a buffer zone of at least 500 metres if not 1 km. Mr. Seervai made one very important point right through his arguments, namely, the fact that none of the aforesaid material makes any distinction with regard to whether the proposed building permission related to the residential zone or industrial zone. Mr. Seervai submitted that the predominant consideration is the aspect of safety and that this factor holds good vis-�-vis human life regardless of which zone are concerned with. It is, undoubtedly, correct that the safety aspect is something that overrides all other principles as far as the planning process is concerned and that, therefore, it holds good in all areas and all zones.
32. There has been much debate with regard to the two reports submitted by Dr. R. K. Garg, who is admittedly a specialist in this field and who was requested by the State Government to examine the dispute and put forward his recommendations. Dr. Garg visited the factories in question and submitted two reports dated 10-4-1990 and 24-5-1990. As far as the first of these two reports are concerned, Dr. Garg has very specifically written to D. K. Jain, Principal Secretary, Urban Development Department of the State Government that the location of residential areas within half kilometre of the boundary of the industry should not be permitted. In his report dated 24-5-1990, Dr. Garg has gone to the extent of pointing out in detail certain crucial aspects of the matter, namely, that the hazardous chemicals and processes that caused the danger are stored and used in relatively large quantities. He, therefore, expressed the view that in the event of an accident, since there would be no time to take corrective steps and since persons within a vicinity of 500 to 600 metres would be affected, he had recommended a separation distance of 600 metres.
33. At this stage, it would be material to point out that it is the case of the petitioners that they were totally unaware of the filing of the original writ petition in the case of Sonam Builders before the High Court or the orders passed therein except that the news with regard to the same came to their knowledge through a newspaper article. Treating the main petition as the lead one, several other petitioners obtained similar reliefs and Mr. Seervai points out to us that regardless of the fact that they had filed a Review Petition before this Court which was pending and joined the various parties who had obtained orders as respondents that several of the other builders still succeeded in obtaining orders from a Division Bench of this Court to the effect that the original order dated 8-11-1990 was still required to be implemented. It was at this stage that the petitioners once again moved the Supreme Court and obtained the requisite clarification as also a blanket order stopping all building activity in that area within a radius of 1 km.
34. Adverting here for a moment, we need to record that even though there has been a furious contest with regard to virtually every facet of this litigation, that one area is virtually free of dispute, principally because the petitioners have been classified as hazardous industries and, therefore, the respondents could not seriously challenge their contention in this regard. At Exhibit "B" (page 84 to the petition) is a list of the various products manufactured by the petitioners and Exhibit "C" which proceeds thereafter lists the following major hazardous chemicals that are used for production. It would be useful to set out all the chemicals which we have listed beiow:--
1) Carbon-di-sulphide 2) Chlorine 3) Ethylene Oxide 4) Hydrogen 5) L.P.G. 6) Methyl Parathion 7) Carbon-di-sulphide 8) Ethylene Diamine 9) Ethyl Acrylate 10) Acetone 11) Solvent Ether 12) Ethyl Bromide 13) Methylene Chloride 14) Petrol Ether 15) Isopropyl Ether 16) Ethyl Alcohol 17) Acetone 18) Liquor Ammonia 19) Formaldehyde 20) LPG 21) Methyl Parathion (80%) 22) Chlorine 23) Ethylene Oxide 24) Hydrogen.
Thereafter from pages 86 to 145 of the petition, the petitioners have annexed the elaborate details in respect of the chemical composition of each of these products, the exact nature of the dangers that can be posed by them, the hazards involved, the precautions that are required to be taken, the ante dotes, extinguishing agents, first-aid and all other relevant information in relation to each of these chemicals. Mr. Seervai did take the trouble of requesting us to peruse this material very carefully which we have done purely in order to satisfy ourselves about two aspects of the matter, the first of them being the quantities in which these chemicals are stored and the conditions in which they are stored and used and, more importantly, the seriousness of the effects that could result in the event of an explosion, a leakage or other type of accident in relation to these items. Even though there was no contest from the respondents with regard to the nature and characteristics or quantities of these chemicals, one of the arguments that was advanced by the respondents was that each of the petitioners own relatively extensive areas of land, that the storage centres such as tanks, etc., are located at certain points and so is the factory proper and that even in the event of a leakage or accident, the consequences thereof could be adequately taken care of within the limits of the petitioners'' factories. The main thrust of the argument was that the Bhopal tragedy is being merely used as a ploy, that the dangers are being grossly exaggerated and that residential buildings are all situated outside these complexes and the residents therein are in no real danger. Since this is an unusual case where the petitioners are virtually seeking an injunction from the Court with regard to utilisation of the land which does not belong to them and which is located well outside their boundaries, we did consider that it was essential to examine the exact nature of the hazard and the seriousness thereof. An examination of this data does indicate to us that the apprehension expressed by the petitioners are well-founded and that they are fully justified. A study of the properties and characteristics of the chemicals indicates that some of them are inflammable or explosive or all of them are very highly toxic. The danger to human health and to human life is very real. The quantities in which the chemicals are stored and used is also relatively large which is understandable, having regard to the volume and nature of the petitioners'' manufacturing activity.
35. It was contended at one stage by the respondents that it is unnecessary for the petitioners to store such large quantities of these chemicals and having regard to the hazard factor that this should be curtailed. Mr. Seervai has pointed out to us that there are a number of factors to be taken into consideration including the aspect of availability, transportation, continuous supply, etc., and that the petitioners themselves who are extremely conscious about the safety of their own employees and all other citizens have kept the storage quantities to the minimum. We have no hesitation in holding, on a perusal of this material that the chemicals in question are hazardous ones, that the-hazardous effect is not and cannot be localized within the radius of the petitioners'' factories and that, therefore, there is valid justification for the recommendation of the experts both in this country and abroad that a minimum separation distance or a buffer zone is the only and correct solution. After very careful consideration of the all these reports and recommendations, submissions of the parties and all relevant circumstances, we hold that the separation distance/buffer zone must be 1 km. from the outer boundary of the unit.
36. Mr. Seervai then proceeded to deal with the major plank of defence as far as the respondents are concerned by dealing with the industrial location policy whereby it is contended that residential development in the disputed areas is permissible. The provisions of the I.L.P. in relation to Zone-II (medium and large scale industries) states that-"medium and large scale industries located in non-confirming areas which are required to shift or wish to shift voluntarily from their present location will have to shift to industrial areas in Zone-111 or IV only. The premises vacated by such shifting or by closure will not be allowed to be utilised for industrial purposes. On 7-7-1983 a modification was introduced through para 49, which reads as follows :--
"49. In case of large holdings with industries falling in industrial zone but lying vacant which cannot now be developed for industrial use in accordance with the industrial location policy, such industries shall be allowed to use vacant pockets for residential developments for their own workers or for general housing treating the areas as if they are in residential zone, subject to condition that the owners of such lands shall get approval to layout and get building plans from the Thane Municipal Corporation for residential user and obtain necessary permission for that purpose under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 and also get prepared "detailed layout from the Thane Municipal Corporation if the land admeasures more than five acres by providing sites for public amenities etc."
It will be necessary for us to deal in some detail with paragraph 49 because the petitioners contend that whichever way this provision is interpreted that it can never be deemed to permit the indiscriminate conversion from industrial use to residential use in the disputed areas whereas the respondents contend that under paragraph 49 they are squarely permitted to construct residential buildings in that area because the Government had for good reason taken a final decision to freeze any further industrial expansion and that, consequently, an all important situation had come up insofar as even though the land was earmarked for industrial use that it would no longer be permissible to allow that user. On the other hand, the position that emerged was to use the respondents'' own phrase "that the land was rendered sterile". As a result of this situation, the respondents contended that it would be open to the land-owners to serve a purchase notice on the Government calling upon it to take over the land in question if the development was not going to be permitted. In such an eventuality, the Government would have been faced with an impossible situation of having to acquire these huge areas of land after paying compensation at existing rates without being able to utilise them. As against this, the authorities were faced with another problem that was staring them in the face, namely, that with the tremendous pressures on housing accommodation, it was becoming virtually impossible for the lacs of middle-class and lower-middle-class persons to afford any residential accommodation within Greater Bombay and that, therefore, there was a pressing need to provide this class of the population with residences in the not too distant areas. Since relatively large areas of land which were originally reserved for industries in Thane District could no longer be used for that purpose, it was only reasonable for the Government to decide that it should be put to residential use. According to the respondents, paragraph 49, regardless of its peculiar wording in sum and substance permitted the change of user from industrial to residential in respect of all those areas of land that could no longer be used for industrial purposes.
37. Mr. Seervai contends that paragraph 49 must be interpreted in the following manner:--
"(i) Para 49 applies only in the case of industries having large holding;
(ii) Para 49 applies only in cases where there is an industry in existence and functioning;
(iii) It can be availed of only by ''such industries'' (i.e. industries which qualify in both (i) and (ii) above and not by anyone else;
(iv) The words ''shall be allowed to use vacant pockets for residential developments for their own workers or for general housing'' permits ''such industries'' construction for residential development for the purpose of use by such industries."
38. Mr. Seervai prefixed his argument with the submission that para 49 is circumscribed to cases where industries have large holdings, meaning thereby that it presupposes cases where the industries in question possess vast areas of land out of which only some of it is used and large areas are lying unutilised. He reinforces this argument by pointing out that paragraph 49 refers to ''such industries''. He, therefore, submits that the obvious intention of the Government was that where such surplus of land is available and it can no longer be utilised for industrial use because of the restrictions, the industry concerned will be permitted to use the land for housing for its own workers. According to Mr. Seervai the reference to the term ''general housing'' means that the industries in question will be permitted to utilise the land also for housing of persons who do not come within the definition of the term ''workers'' which could include a large number of individuals such as the officers, contractors, security personnel, particularly when it is found desirable to allow these categories of persons to reside on the premises. Mr. Seervai did also advance several other contentions in this regard which we have not recorded because that would be unnecessary in the view that the Court is ultimately taking with regard to para 49.
39. We do need to, however, take cognizance of one other aspect, namely, that Mr. Seervai sought to demonstrate to what extent the misinterpretation of para 49 is being capitalised upon by the authorities in collusion with several industrialists. The real estate prices having virtually gone out of control, a situation has come up whereby the owners of several units have realised that the money value of the land alone is so staggeringly high that it is far more beneficial for them to hand over the land to a developer, pocket the spoils and live happily over after instead of running the unit. This easy money has resulted in a large number of units being deliberately made sick by not paying the power bills, siphoning out money and showing losses and thereby bringing about a seemingly convincing collapse of the unit which is ultimately wound up and the area turns into a huge residential complex. It was demonstrated by Mr. Seervai that such activity has caught on like wild fire in the area and is fast destroying the identity of the Thane Industrial Complex. Mr. Seervai produced before us a survey report published in the issue of the Times of India dated 7-1-1994 indicating how, through such a modus operandi, 60,000 workers have become jobless and that many of the industries which normally would not have closed down find this incentive too good an offer and are, consequently, moving the units out of the State. The sole purpose of referring to this aspect of the matter was in order to illustrate the gravity of the situation and to further demonstrate that the area which was specifically earmarked for industrial purposes which in other words is job-oriented and revenue earning activity is virtually being destroyed due to the reckless manner in which the planning process has been perverted. Normally, we would not have even recorded this aspect of the matter, but we do think that it is one of considerable consequence because this is a case in which issues of public interest and public good dominates all other considerations. One of the charges against the present petitioners was that they are rich industrial units who are unduly concerned with what is happening in the area around them and that the grounds have been blown out of proportion, though they are realty of little significance. If, in the last one year alone as the survey indicates an estimated 60,000 people have been rendered jobless, it is only indicative of how concerned this Court must be with regard to curbing the cases that are resulting in this state of affairs. In this context, Mr. Seervai has placed reliance on the decision of the Supreme Court in the case of
40. Mr. Seervai also adverted to the line of argument canvassed on behalf of the respondents that para 49 will have to be interpreted in conjunction with the provisions of Section 49 of the M.R.T.P. Act which contention we shall deal with subsequently while recording the main contention canvassed on behalf of the respondents. It was, however, the submission of Mr. Seervai that this line of argument is legally untenable. Also, he seriously attacked the contention raised on behalf of the respondents that the interpretation of para 49 as understood by all the parties at that point of time, namely, the respondents, the original Review Petitioners, and all the other beneficiaries was that it was perfectly permissible under this provision to effectively treat unutilised areas of industrial lands a residential zone. The argument of the respondents proceeds on the footing that the doctrine of contemporaneous ex position would fully defend the action of the respondents who genuinely believed that this was the correct position. This is indefensible, since in law, such a position can never be justified. We find the wording of para 49 quite unambiguous and refuse to accept the defence that it could be used in cases other than that of the industries themselves for residential use. Even in those cases, there would be serious reservations and in the case of hazardous industries, a total prohibition. Such land must be utilised only for "green areas", even if tree plantation is to be done on a widespread commercial basis.
41. Mr. Seervai also dealt with another line of argument which is extremely interesting. Relying on the provisions of the various building bye-laws and Development Control Rules for ''A'' Class Municipal Councils in Maharashtra, it was contended in all seriousness on behalf of the respondents that the entire fight in the present case centres around a separation distance and the respondents boldly insisted on a position that if any safety distance is required to be maintained by an industry because of the nature of its activity that this will have to be provided for by the industry itself. The argument proceeds along the lines that all these Regulations prescribe a certain setback from a road, a boundary, etc. and carrying the argument to its logical conclusion, the respondents contend that since the respondents are possessed of a large areas of land, if a separation distance is required even for safety reasons, that effectively it is they who will have to move backwards from their own boundaries instead of insisting that the respondents should move back from the petitioners'' boundaries. Mr. Seervai dismissed this head of argument by pointing out that it would lead to absurd consequences insofar as the petitioners who had come there first cannot now be asked to physically shift their factory and storage units. In any event, as a corrollary, Mr. Seervai pointed out that in addition to the physical impossibility, what is more important is that the safety separation distances, which are prescribed and which effectively range between half to one kilometre at the minimum, are physically impossible within the given factory areas. We need to observe here that in the present instance, for physical reasons, the distance will have to be computed from the outer boundaries of the units as they exist. In the future, however, the proposal of also providing for an internal buffer zone is something which the planning authorities must seriously look into.
42. With regard to the aspect of separation distance, Mr. Seervai drew our attention to the observations of the Supreme Court in the case of
"There should preferably be a green belt of 1 to 5 kms. width around such hazardous industries."
In this regard, we have some further guidance in respect of this very case which was argued on more than one occasion before the Supreme Court when the Review Petition was filed and when the prayers for interim reliefs were considered. The Supreme Court, itself in this very case accepted the principle of one kilometre separation distance. This, in our considered view, would be the barest minimum.
43. It would be appropriate at this stage for us to deal with one aspect of the matter which Mr. Seervai dealt with in his reply and which concerns the contention that if the hazards emanated from the industries that it was they who should shift instead of making for all sorts of restrictions to be placed on residential areas. Mr. Singhvi, in the course of his arguments, submitted that if one were to consider the grave need of hundreds of thousands of poor and middle class citizens who are in desparate need of residential accommodation and in response to which requirement the residential buildings were being constructed in that area and juxtapose this with the status of the petitioners companies, it would certainly be valid to argue that the latter group constitutes the larger and more prosperous of the two and should be asked to move away from that area. We shall deal sometime later with the submissions canvassed by Mr. Mehta, who appeared on behalf of Brahmand Flat Owners'' Association and who demanded in all seriousness that the petitioners-companies must be made to get out from that area. That aspect of the matter is not the subject-matter of this petition, but we do concede that the issue arises indirectly. The demand made does not appear to be reasonable or practicable. On the facts of the present case, it is the petitioners-companies who had once moved out from the city of Bombay in the early sixties to the area in question which was comparatively isolated and uninhabited at that time. It is the developers who thereafter flocked to that area and started constructions closer and closer to the units. It was in these circumstances that the petitioners'' units moved the concerned authorities and ultimately the Court had to put a stop on the development. In answer to such a situation, it would hardly be either just or reasonable to demand that it is the companies who should move out from that area. One has to take into account many economic considerations one of the most important of which in the Indian context is the question of employment. We have earlier referred to the report produced before us by Mr. Seervai in relation to this very region indicating that a large number of units had closed down because they found it more profitable to sell their lands to the developers for huge amounts of money rather than running the business. In the process, in the year 1993 alone, 68,000 employees from that area have been rendered unemployed. In any event, we do not agree that the shifting of the units is the solution. The matter has virtually been set at rest by the Supreme Court in
"It is also necessary to point out that when science and technology are increasingly employed in producing goods and services calculated to improve the quality of life, there is a certain element of hazard or risk inherent in the very use of science and technology and it is not possible to totally eliminate such hazard or risk altogether. We cannot possibly adopt a policy of not having any chemical or other hazardous industries merely because they pose hazard or risk to the community. If such a policy were adopted, it would mean the end of all progress and development. Such industries, even if hazardous, have to be set up since they are essential for economic development and advancement of well-being of the people. We can only hope to reduce the element of hazard or risk to the community by taking all necessary steps for locating such industries in a manner which would pose least risk of danger to the community and maximising safety requirements in such industries. We would, therefore, like to impress upon the Government of India to evolve a national policy for location of chemical and other hazardous industries in areas where population is scarce and there is little hazard or risk to the community, and when hazardous industries are located in such areas, every care must be taken to see that large human habitation does not grow around them. There should preferably be a green belt of 1 to 5 kms. width around such hazardous industries."
Having regard to the aforesaid observations of the Supreme Court, we do not need to say anything more with regard to this aspect of the matter.
44. Even though a considerable part of the hearing was devoted to questions such as to whether the Thane Municipal Council could have refused permission having regard to the provisions of Sections 45 and 46 of the Maharashtra Regional and Town Planning Act in the light of the representations made by the chemical industries and in the light of the observations made in several other decided cases, we only need to observe that the facts of this case are materially different to the usual run of the mill cases. This case deals with an extraordinary situation whereas every one of the decisions referred to by learned Counsel on both sides in this proceeding is distinguishable to the extent that in none of the cases in question were aspects of human safety and danger to life of paramount consideration. These aspects are basic and fundamental and a Government or a Planning Authority would be more than fully justified in withholding building permission on these grounds. We do not see any difficulty whatsoever in concluding that the facts of this case are as gross that the authorities would have been fully justified in rejecting the permission on these grounds.
45. Similarly, we refrain from an elaborate examination of another head of controversy regarding interpretation of paragraph 49 of the Notification dated 7-7-1983. There is nothing in that document which indicates that the aspect of danger to life or the fact that industries storing and using hazardous chemicals being located in that area had ever been taken into consideration. Under these circumstances, even if in a given situation, the Government were to approve of change of user, in our considered view, that could never be justified on the special facts of the present case.
46. The case on behalf of the respondents has effectively been argued by Mr. K. K. Singhvi, Senior Counsel, who represents respondents Nos. 20 to 111. Mr. Singhvi commenced his submissions by pointing out that the scope of this petition is limited to a determination of whether the Division Bench order passed by Pendse and Tipnis, JJ. requires to be reviewed or not. It was his contention that anything beyond this cannot be taken into consideration. Normally, this argument would have held good except for the fact that we have already considered this aspect of the matter and held that by virtue of the directions of the Supreme Court whereby the composite petition filed before that Court has been sent for hearing before us with the direction that all aspects of the matter be considered and, consequently, the scope cannot be circumscribed.
47. Mr. Singhvi commenced his arguments with an indepth analysis of the relevant provisions of the Maharashtra Regional Town Planning Act for purposes of illustrating the law in relation to a development plan, a regional plan, etc. We have heard the learned Counsel at considerable length with regard to this aspect of the matter which has been dealt with also in detail by Mr. C. J. Sawant on behalf of the State Government. Mr. P. M. Pradhan on behalf of the T.M.C. as also Mr. Rafiq Dada and Mr. C. M. Kode on behalf of the respondents. We do not propose to reproduce those arguments, nor the numerous judgments that were referred to by them in this judgment as far as this head of defence is concerned for the reason that we have already held that the earlier order will have to be reviewed because all the relevant material was not placed before the Court at that time and, more importantly, because, in our considered view, it is not the provisions of a particular section or what appears to be the normal interpretation thereof, but the overriding consideration of the imminent danger to which laws of citizens stand exposed, if the technicalities that are pleaded were to be upheld. It is for this reason that we have categorised those considerations as overriding considerations and have also treated the situation obtaining in this case as a special and out of the ordinary one to which normal provisions and considerations will not apply.
48. In the first instance, Mr. Singhvi submitted that the building permission could not have been refused under Sections 45 and 46 of the M.R.T.P. Act solely on the ground that the representation of the chemical factories was under consideration of the Government. Mr. Singhvi relied on the observations of the Supreme Court in
49. One needs to record here that in this and several other decisions which learned Counsel had cited from time to time, the Courts were concerned with disputes in relation to the grant, refusal, etc. or permission to develop, but none of those cases was anywhere close to the present one on facts. We do not dispute the fact that the generality of principles have been well-defined in the course of these judicial decisions and in arriving at a final conclusion in this set of proceedings, it is all those principles that we shall be guided by. However, the fact still remains that the Court is faced with a situation of an entirely different type. The grounds on which the objections are based are serious enough to categories this case as being virtually a question of life and death. The safety of the lives of the residents of the buildings in the vicinity of the units is the factor of paramount importance and in our view all other considerations must be subservient to this factor. The danger in this case is real and not illusory and, therefore, the Government and the T.M.C. would have been fully justified in withholding or refusing building permission upto a safe distance from the units in question. When a representation of this gravity has been made, it requires consideration and it is only because of.the nature of the representation and the material on which it is based that we hold that the refusal of permission for a reasonable time while the representation was under consideration on these special facts would have been fully justified.
50. A furious debate has emanated in the course of the hearing with regard to the manner in which directions u/s 154 of the M.R.T.P. Act are to be issued. Mr. Singhvi has relied heavily on the decision reported in the case of
51. Mr. Singhvi has thereafter taken us in considerable detail through the sanctioned original plan of 1973 of the T.M.C. industrial complex in support of his contention that the land user is residential and not industrial. There was, in fact, considerable dispute with regard to the plans produced by the respective parties and, as indicated by us earlier by virtue of the provisions of para 49, it was contended that land designated as industrial, but lying vacant which cannot be used for industrial purposes could be used for residential purposes. We do not consider it necessary to reproduce the detailed submissions advanced in this regard because the controversy in dispute emanates around the question as to whether the requisite safety margin from the units in question ought to be maintained or not. Where the answer to the question is in the affirmative, it makes little difference to the issue as to whether within the four corners of the plans of the relevant rules and regulations residential buildings could have been put up in that area or not. We do not consider it necessary to give a specific finding in this regard because we are prepared to assume the highest in favour of the respondents that it was permissible under normal circumstances to construct residential buildings which was why the authorities granted the permission for it, but this would still not justify the permission if the buildings in question were within the 1 km. radius. Next, Mr. Singhvi pointed out within the framework of the provisions of the M.R.T.P. Act that except on limited grounds as set out u/s 51 of the Act, permission once granted cannot be kept in abeyance or withheld. Reliance was placed in this regard on the decision in the case of the Municipality of Sholapur v. Abdul Waheb Shaikh Chand 23 Bom LR 244 : AIR 921 Bom 439. These submissions and the allied arguments again do not really survive because the permissions that have been granted have thereafter been acted upon and having regard to the humanitarian angle that will be involved in any quashing and revocation of the permission at this stage and more so since the petitioners themselves have not prayed for any demolition, we do not consider it essential to record any specific findings in this regard.
52. There is one other aspect of the matter which is referred to by Mr. Singhvi in detail as also by several of the other learned Counsel, which we shall summarise very briefly. An elaborate compilation has been filed in respect of a longstanding dispute between the Airforce Authorities from the Airforce base that is situated close-by in the area and Indofills Chemical Co. A reading of this compilation indicates that the Air force authorities had been repeatedly objecting to several of the manufacturing activities and processes and pointing out that the same constituted health and environmental hazards. While on the one hand, on behalf of the chemical units, assurances were repeatedly given that corrective steps and safety measures were being improved and implemented, there is also repeated reference to the fact that the complaints made are really without substance. In other words, to summarise, Mr. Singhvi''s arguments, the correspondence very squarely indicates that the management of the Company has pointed out that the apprehensions were totally without justification, that there is no real damage or danger of any consequence and that none of the fallout from anything that is happening within the complex could harm or affect persons or institutions outside. This material was relied upon very heavily by Mr. Singhvi and other learned Counsel for purposes of establishing that in the first instance the review petitioners themselves admit that all safety measures and precautions have been increased and improved, particularly after the Union Carbide case and the Shree Ram case in Delhi in order to ensure virtual zero possibility of any accident, explosion or leakage. Coupled with this fact, learned Counsel for the respondents rely on the repeated written admissions and assurances that the hazard potential is absolutely nil. It is on this basis, therefore, that it is contended that there is no ground whatsoever for accepting the theoretical assumptions projected by Mr. Seervai''s clients that the threat or danger is serious, that it is real and that a virtual isolation zone of at least 1 km. should be maintained.
53. We have heard learned Counsel representing several parties in respect of this important material and we need to record that what Indofills tried to point out was effectively that the steps are being taken to ensure that no environmental pollution is caused. It is true that all forms of safety measures have been tightened up, but experience has also shown that in spite of even more sophisticated measures that have been employed in this part of the world as also elsewhere that things have gone wrong. It is in these circumstances that regardless of the pious assurances from the units in question that it is essential in the interest of lakhs of human beings that a Court must keep to the safe side. A safety margin or a buffer zone in our considered view is, therefore, an absolute must because the quantities of hazardous chemicals, the effects thereof and the processes in which they are being used are ail potentially dangerous.
54. Appearing on behalf of Respondents Nos. 119 and 129, who were the petitioners in Writ Petition No. 4839 of 1990, decided on 8-12-1990 and Writ Petition No. 4910 of 1990 decided on 8-11-1990, Mr. Dada pointed out that he fully and completely adopts the detailed submissions canvassed by Mr. Singhvi, learned Senior Counsel, who had preceded him. The first submission canvassed by Mr. Dada was that the lands in question as far as his clients are concerned have been zoned in the residential area as far as the regional plan of 1973 is concerned. He, therefore, submitted that on the face of it and in the absence of any reservation for public purpose, permission for residential user could not have been refused to his clients. Significantly enough, this argument totally by-passes the only relevant issue in this group of petitions, namely, the question as to whether such permission for residential user is at all permissible in the vicinity of a hazardous industry. The all important angle to the issue is not to be canvassed in a vacuum, nor is it to be argued in relation to an unreal set of facts because everyone of the arguments canvassed by Mr. Dada and others on behalf of the respondents with the assistance of well-settled authorities, which may held good in any other area, would still not be acceptable when it comes to the vicinity of a hazardous industry. Mr. Dada canvassed elaborate arguments with regard to para 49, to which we have earlier made reference and with regard to the scope of Section 49 and their applicability in the context of the regional plans and the development plans in question. Though we heard learned Counsel at length, we refrain from reproducing the submission and the references to the authorities for the reason that in our considered view even if the arguments were to hold good on those grounds that the permission for residential user could still not have been granted, having regard to the overriding safety considerations.
55. In this context, Mr. Dada drew our attention to the provisions of Section 49 of the M.R.T.P. Act and the allied provisions as are contained in Sections 125 and 126 as also Section 127 of the Act. For purposes of brevity, we are summarizing the arguments because this was the bedrock of the defence pleaded essentially by the State Government, the T.M.C. and was very strongly projected by Mr. Singhvi, Mr. Dada and Mr. Kode. Learned Counsel for these parties contended that the area had been set apart for specified user and a citizen was, therefore, entitled to apply for permission to put the land to that use. If for whatever reason even if they are valid grounds that have emanated from the review petitioners, the permission were to be refused, the owner of the land is entitled to serve a purchase notice on the Government and the Government would in that event be legally obliged to comply with the requirements of law by purchasing the land. Learned Counsel Mr. Korde even went to the extent of producing an elaborate calculation with regard to the amount of land that would be rendered sterile as a result of the objections raised by the review petitioners. This has been also reflected in the affidavit filed on behalf of the State Government whereby it has been pointed out that if the 1 km. rule is to be applied, almost 1/3rd of the available land would have been rendered sterile. Having regard to the zoning policy if the permission were to be refused, the Government would be obliged to pay for the land at that rate and fake it over. The liability to the State in that event would be something staggering and unimaginable because the industrial units which are the complainants would not come , forward to purchase those lands and keep them idle. It was, therefore, submitted by all learned Counsel that this would put the Government in a virtually impossible position. The second justification for the modification contained in para 49 as was put forward was that if the location of industries has reached a saturation point that it is very necessary to put the land to some other use and having regard to the tremendous need for housing that the Government was right in permitting such change of user. 56. We have referred to the expression "arguments in vacuum" not by way of criticism to learned Counsel, each of whom in his own right is eminent and who has assisted we immensely by arguing this matter with a high degree of competence and have assisted the Court immensely in the course of their arguments. What we are referring to is the fact that even though many of these arguments are unassailable, that they still do not hold good in the special circumstances of this case because the planning process also requires that all relevant considerations must be taken into account and nothing could be more relevant than the basic issue of safety. In other words, the arguments ought not to proceed on the basis of regal theory de hors the facts of the present cases, but should be considered only in strict conjunction therewith.
57. With regard to this general argument canvassed by learned Counsel in relation to the consequences of Section 49(4) becoming applicable as one of the justifications for permitting the user for residential purposes, we do not propose to so much as even suggest any answers. If, as indicated by us, the permission can be refused on relevant considerations that are germane to the issue and if fundamental aspects of public welfare, public safety and virtually the right to life are involved, these would certainly constitute relevant considerations and valid justification for the refusal of permission. The alternatives possible or the course of action available to the Government or to the aggrieved parties is not something for the Court to suggest because the entire argument proceeds on a hypothetical basis, one cannot expose the lives of hundreds and thousands of citizens to lethal danger on the argument that this was done in order to save money. God forbid, but we do hope that the day will never come when any Court or authority upholds such reasoning.
58. In the course of his arguments, learned Counsel Mr. Dada elaborated on another aspect of the matter, which we have dealt with while considering Mr. Singhvi''s arguments. Mr. Dada, however, relied heavily on the standardised building bye-laws of "A" class Municipal Councils for Maharashtra on 1-7-1985, that is immediately after the Bhopal tragedy. He specifically drew our attention to Rule (2), 2.8. These are regulations framed in the exercise of powers u/s 159 of the Act, which permits the planning authority to frame regulations. Mr. Dada referred also to the Development Control Rules made in 1991 of the Bombay Municipal Corporation, which expressly deals with hazardous industries and even obnoxious industries. Those rules provide for adequate set back. The point made by Mr. Dada was that this is a protective measure and the requirement is to go back in one''s own land and not render somebody else''s land sterile. In other words, Mr. Dada contends that the man who wants to build an industry must move back within how own plot and not the. man who wants to build a house. In normal situations, there can be no quarrel with regard to this proposition and we do feel that these are not only necessary but reasonable provisions. It would normally appear that the safety distance must not only be maintained but, looked after by the party who is responsible for the conduct of the hazardous activity and it could, undoubtedly, be argued that it is unfair to insist on keeping the neighbour''s plot vacant for safety reasons.
59. These provisions apply at the stage at which permissions are asked for. The situation before us is exactly the opposite. The review petitioners were the first in point of time to occupy those areas and on a careful examination of the plots in question, we do find that adequate land has been acquired by each of the review petitioners and it also does appear that all the requisite set back - requirements have been more than adequately complied with. Admittedly, the adjoining areas at that point of time were completely vacant. It is in the last decade and a little more than that, that the issue regarding actual danger from hazardous industries has not only surfaced but exploded with almost volcanic proportions. In such a situation, it is virtually the reverse position that applies in so far as when the question of locating new residential buildings in relation to pre-existing hazardous industries comes up, the applicability of the Development Control Rules or the building bye-laws would not be relevant vis-a-vis the pre-existing industries because admittedly those already there cannot be physically shifted from where they are. In such situations, it is inevitable that the safety margin or the buffer zone must first be demarcated and residential user be permitted only outside that area. The principles enunciated by Mr. Dada could certainly be taken into consideration prospectively and, in our view, must be taken serious note of, but they would not be applicable in the facts of the present case.
60. Mr. Dada also canvassed the submission that the decision in the Sonam Builders . case cannot and should not in any way affect the case of his clients in so far as they are concerned with lands that were demarcated for residential user and his clients are not relying on the provisions of para 49. He further submitted that as far as this aspect of the matter is concerned, the orders obtained by his clients in the aforesaid two petitions have become final and irreversible and that even if the orders in the Sonam Builders case are reviewed that this should not affect his clients. We do not require to elaborately by sect this line of argument for the reason that the Court is obliged to take into account the change of situation and all that has transpired since the date on which the original order was passed. We have also, for the reasons stated more than once, observed that reliefs granted at this point of time will have to be moulded to suit the situation and that we do not consider it fair and just to order demolition of any of the structures or for that matter to revoke orders in respect of which structures have been completed or those that are under construction pursuant to permissions that have been sanctioned and implemented prior to the date on which the Supreme Court issued the stay orders. That, in our considered view, is the most liberal manner in which the minimum hardship could be caused to persons who have invested in the flats in question. In this regard, however, we sound a note of caution in so far as the authority shall not permit any additions or modifications to the earlier sanctioned plans in respect of the incomplete structures under any circumstances. It was pointed out to us that some of the structures are in various stages of completion, a few of them possibly in the final stages and some in the initial stages. We do not propose to make a distinction in respect of these structures in so far as they all stand on the same footing to the extent that the permissions were granted pursuant to the earlier Court directions and prior to the stay order passed by the Supreme Court. Having regard to this position and the fact that Mr. Dada''s clients would not in any manner be prejudicially affected, no distinction requires to be made in the matter of grant of reliefs.
61. We then proceeded to hear Mr. Kode, learned Counsel for Respondents Nos. 19, 113, 120 and 121, who are the petitioners in original Writ Petition No. 5135 of 1990, 5136 of 1990, 5198 of 1990 and 5175 of 1990. Mr. Korde commenced his arguments by making a brief reference to the submissions canvassed by Mr. Singhvi and Mr. Dada, among others, who had preceded him and he sought to contend as they had done, that in the first instance the building permission to his clients had validly been granted. It was his case that there is enough material on record to indicate that the Thane Municipal Council had acted on the basis of oral instructions and that there was no legal sanction for this. In effect, Mr. Kode supported the contention that had preceded him in submitting that no case had been made out for review at all. In effect, Mr. Korde submitted that the case of the review petitioners had been blown out of proportion and that the relief asked for by them, namely, the 1 km. limit could never be justified.
62. In the course of his arguments, Mr. Korde submitted that this Court should take a very realistic view of the situation de hors the individual contentions raised by Mr. Seervai that the I km. limit must be observed in respect of each of the six industries. As we shall presently point out, the principal thrust of Mr. Korde''s argument was that even Dr. Garg, who had made an on the spot assessment and to whom the matter had been referred by the State Government itself, had alternatively recommended the 500 mts. limit. If actually calculations were to be made, Mr. Korde illustrated to us that 1165 Acres of land would be rendered unusable by virtue of the 500 mts. rule; whereas as much as 4660 Acres of valuable land would be rendered unusable under the 1 km. rule. In this regard, he placed reliance on the affidavit of Mr. Uplekar on behalf of the State Government, who pointed out that if the 1 km. rule were to be put into application, out of a total of 140 sq. mts. of area, as much as 50 sq. mts. will have to be kept vacant. Mr. Uplekar has pointed out that in the last several years, hundreds of residential buildings have been constructed in accordance with law within a radius of I km. from each of the chemical plants and lakhs of citizens are occupying these residential buildings for years together. On the strength of this material, Mr. Kode submitted that it is both unreasonable, unjustified, improper, unnecessary and against the public interest that the earlier judgment should be reviewed. Mr. Korde was also critical of the manner in which attempts have been made to justify the impugned orders and in this regard, he has relied on the observations of the Supreme Court in
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in
"Public orders publicly made in exercise of a statutory authority cannot be,construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and. conduct of those to whom they are addressed and must be constructed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older."
As regards these aspects of the matter, undoubtedly, much was made about the documents on record, including the endorsements appearing on them, for the purposes of contending that the earlier orders of refusal were unjustified. In that context, it was submitted that the interference by the Division Bench of this Court was valid. We have had occasion to deal with that situation in detail and to hold that unfortunately all relevant material was not placed before the Court at that point of time. This is a complex case and cannot be considered in isolation, nor can these important issues be adjudicated on the basis of an incomplete record. At this point of time, however, that issue is rendered only academic for the reason that permissions were subsequently granted and in almost all cases the buildings have thereafter come up.
63. Mr. Korde also advanced certain submissions with regard to the power of revocation which again are not required to be reproduced as the overall situation that we are presented with would not justify the revocation of the permissions granted, even though in our considered view, they ought not to have been granted in the first instance. It is only the human problem involved that has impelled us to take this view. The grounds on which the review petitioners have moved this Court are not only valid, but are serious enough to justify revocation of the permission, even if the same had been wrongly granted.
64. Another head of arguments canvassed by Mr. Korde proceeds on the footing that the review petitioners ultimately moved the Court on their own admission at a very belated point of time. Mr. Korde submits that, in effect, the order that is being asked for is that permissions for residential housing be stopped within the prescribed radius. He states that the petitioners themselves admit that structures, small and large, have been coming up in the area since the year 1969 whether they are hutment colonies, small buildings or high-rise buildings. He also draws our attention to the averments in the petition and in the correspondence to the fact that these have been coming up in the close proximity of the industrial units. The non-action on the part of the petitioners, according to Mr. Korde, has resulted in the fact that hundreds of buildings have come up and lacs of persons are already resident there and, consequently, he submits that there is no case at all for the petitioners to enforce a ban at this late stage.
65. Our answer to this argument is twofold the first being that the planning process is left in the hands of certain public authorities and it is expected that they will enforce the powers that are vested in them in the manner that the law requires and in keeping with the principles of public interest that have been changing and developing from time to time. The public authorities are not only required to draw up plans or to grant permissions, but more importantly, they are required to ensure that unauthorised structures do not come up and if they do come up that they are promptly removed. It was pointed out in the Bhopal case that the majority of poor persons who were killed and seriously injured were all living in unauthorised structures that had come up around the Union Carbide Factory. There existed an obligation which, in our view, is inherent on the local authorities to have prevented the growth of the shanty towns and the law empowered these authorities in the interest of the poor propel themselves to remove them from the danger area and to relocate them else where. These duties unfortunately are never performed. Even in the present case, as pointed out by the review petitioners, none of the concerned authorities have done anything in the matter except having indiscriminately granted permission to construct residential complexes right upto the units in question. Apart from this, the petitioners cannot really be faulted because they have been agitating the matter with the authorities concerned and they were required to move the Supreme Court only when they found that even at a very late stage when the building permission was refused that the original petitioners had succeeded in obtaining Court directions without making the review petitioners parties. In these circumstances, we do not see the propriety of the argument that delay disqualifies the review petitioners.
66. As regards the 1 km. rule, Mr. Korde has taken us very meticulously through all the documents on the basis of which Mr. Seervai has claimed this particular limit. Mr. Korde points out that none of the authorities or experts have specifically laid down the 1 km. rule. Apart from this, he relies heavily on the fact that the review petitioners themselves have referred to a distance of 1 / 2 to 1 km. and Mr. Korde submits that they are undecided in the matter. Mr. Korde also took us in some detail through the record relating to Messrs Indofills and the Air Force Authorities for the purpose of illustrating that there is no substance in the contention that the hazards that are sought to be referred to by Mr. Seervai could cause any appreciable danger outside the limits of the units in question. He relies on the statement made by Indofills that whatever harmful effects the unit is attributed with that they will all be contained within the limits of the unit. This, again, is in support of the argument that the 1km. limit is totally unjustified. We have already had occasion to deal with the material that is on record in this regard and even though there may not be any specific recommendation in respect of a blanket 1 km. limit, we hold that on the facts of this case and the material placed before us as also judicial precedents, particularly the Shree Ram case that the 1 km. limit is essential.
67. Lastly, Mr. Korde submitted that the residents who have booked their flats in that area and who have come to live there have done so with open eyes and they are aware of the situation particularly the presence of the units, the nature of their activities and the possible hazards and that if they still choose to reside there, regardless of these, that the Court should permit them to do so. We are afraid that this attractive argument cannot be accepted for the reason that we are aware of the situation relating to housing that is prevalent in or around Bombay. The people who have come to reside there are all middle class persons who have hardly any choice in matters with regard to where they reside or for that matter the conditions under which they do so. Because of economic pressures and unavailability of anything better, there are instances of whole colonies of people residing in the close proximity of railway tracks, colonies built on dangerous hill-sides and situations of persons unauthorisedly residing on the banks of canals, drains and even sewage installations. This is a pathetic state of affairs to which parts of the population are driven and it is no argument to contend that they should be allowed to remain there, exposed to lethal danger because they have chosen to come to that place. In all these cases, it is elementary that in their own interest they will have to be moved to safer areas and as far as the planning authorities are concerned, it is absolutely incumbent in order to avoid the amount of loss and human suffering at a later point of time to prevent the occupation of such prohibited areas by taking anticipatory steps well ahead of time.
68. Appearing on behalf of the Respondents Nos. 122 and 123, Mr. Mukul Taly, learned Counsel, pointed out to us that his clients had earlier filed Writ Petition No. 3910 of 1990 before this Court and an intervention application in the Supreme Court. They had also filed Civil Application No. 2199 of 1991 in the present Review Petition and Contempt Petition No. 6 of 1992 before this Court. The Applicants are concerned basically with the lands bearing Survey Nos. 91 to 95 of Village Majiwade. Mr. Taly, at the very outset, submitted that the lands as far as these parties are concerned were never in the industrial zone and that they were always within the residential zone. Mr. Taly also pointed out to us that factually, therefore, the case of his clients was distinguishable in so far as the controversial Clause 49 of the Notification dated 7-7-1983 was not being relied upon by his clients. In fact, Mr. Taly in the course of his arguments illustrated lo us that if his method of computation were to be applied that his clients buildings would stilt come out side the safety zone that is prescribed. The unit in question as far as these parties are concerned is Colourehem and the first submission raised by Mr. Taly was that admittedly at no point of time was the issue regarding 1 km. separation distance ever mooted or published as a proposal. He drew our attention to the various documents on record to which we have referred to and in particular the plan prepared by the Deputy Director of Town Planning prescribing the separation and safety distances which was to be of 500 mts. The only flaw as far as this submission is concerned is that the distance of 780 mts. and 860 mts. indicated by Mr. Taly are marginally within the 1 km. distance that have been prayed for by the petitioners and that has been approved by the Supreme Court in the interim orders.
69. Mr. Taly raised a technical plea which we shall deal with very briefly. Admittedly, the Supreme Court had granted four weeks'' time within which period the Review Petition was to be filed before this High Court. Taly points out that Colourehem Limited did not file any such Review Petition, though it had participated in the correspondence. It is true that they had intervened in these proceedings and furthermore that they have supported the Review Petitioners, but it is Mr. Taly''s submission that the stay orders vis-a-vis his clients which could hold good only on the ground that their lands were located at a distance less than 1 k.m. from Colourchem would automatically stand vacated on the period of four weeks having elapsed since Colourchem did not file the Review Petition within that period. We feel that these objections are highly technical and, in any event, cannot be upheld in a case of the present seriousness. We are vitally concerned with fundamental issues that concern the safety, welfare and survival of hundreds of thousands of citizens and, in these circumstances, we refuse to entertain any such technical pleas.
70. In support of his arguments, Mr. Taly has drawn our attention to the relevant correspondence, the orders on which he proposes to place reliance as also the correspondence entered into on behalf of his clients and the authorities. We have had occasion, while dealing with voluminous material adduced by the petitioners, to observe that in matters of survival even a Court would, perhaps, have to lean towards the safe side and it was for this reason that we have accepted the 1 km. distance formula. It is not for the first time that issues relating to Hazardous chemicals have come up before the Court and we have had occasion also to deal with the observations of the Supreme Court in the Shree Ram Mills Case where the minimum safety distance recommended was 1 km. This, in our considered view, will have to be strictly adhered to. If as Mr. Taly points out, or Dr. Garg has sought to do, allowances are sought to be made or if the distances are sought to be measured from all sorts of points for a variety of reasons and having regard to the general integrity level of the authorities who are incharge of sanctioning these plans, we have no hesitation in holding that justifications will be sought for allowing buildings to come up in much closer proximity. We, therefore, refuse to accept any arguments which seek lo fix the point of measurement at anything other than the outer boundary wall of the unit, which is a point that cannot be shifted or played around with. One km. as measured from that point will have to be observed. The only allowance and that too with a high degree of regret and reluctance that we are making, is with regard to all those cases which had got through pursuant to the earlier Division Bench orders and which have been approved of and implemented prior to the stay order passed by the Supreme Court. That concession is being made having regard to the complexities of this litigation, the overriding factor being the humanitarian angle in so far as it is not the builders concerned for whom we have some sympathy, but the flat-owners and the residents who have put their meagre savings and hard-earned borrowings into the residential structures. It is only this last factor that impels us to permit the majority of buildings which ought never to have been constructed in that area to remain where they are. We desire to make it very explicit, in no uncertain terms, that this special indulgence is not something that will ever be permitted again. If any attempts are made to breach the law and present the Court with a fait accompli there will be no option except to order demolitions.
71. Mr. P. M. Pradhan, learned Counsel appearing on behalf of the T.M.C., informed the Court that as far as his clients were concerned, that in the present dispute they were virtually sandwitched between the two real contesting parties. Mr. Pradhan submitted that in matters such as this, which relate basically to planning policy. etc., that the T.M.C. was no more than the implementing agency. Learned Counsel pointed out that the final decision with regard to the matter concerning whether or not building permission was to be granted in the disputed area in the light of the representations made by the review petitioners was to be taken by the Urban Development Department of the State Govt. Mr. Pradhan maintains that the T.M.C. was fully justified in having rejected the application in the Sonam Builders case and in the other cases also since the matter was under consideration of the State Government. Mr. Pradhan desired to point out to the Court that the T.M.C. has not acted improperly at any time, leave alone while defending the order in question. Mr. Pradhan very elaborately drew our attention to the correspondence exchanged at that point of time and he vehemently contested the position that the T.M.C. had acted on the basis of any oral instructions. Mr. Pradhan countered the submissions put forward by learned Counsel representing many of the other respondents who alleged that the rejection orders were on the basis of oral instructions. He stated that the instructions were in writing as is evident from the correspondence between the parties and furthermore that since the issue involved is one of considerable gravity that the T.M.C. was required to reject the permission as the representations of the review petitioners were under consideration of the Government. As regards this aspect of the matter, we need to observe that after hearing the learned Counsel and perusing the relevant documents as also taking into account the fact that the T.M.C., whom Mr. Pradhan represents, is a responsible public body, we are not prepared to accept the charge against them that the T.M.C. acted on the basis of oral instructions. There is sufficient evidence on record to indicate that Mr. Jain, the then Secretary to Government, Urban Development Department, was seriously and actively considering the matter, that he had visited the place and that he was very much seized of the issue and in these circumstances he had written to the T.M.C. in this regard and it was on that basis that the T.M.C. had acted.
72. Refuting the charge that the refusal of permission was high-handed, arbitrary and illegal, Mr. Pradhan submitted that the grounds were extremely relevant and sufficiently serious and that the rejection order was a valid one. He also contended that the T.M.C. had done its best to defend the matter when Sonam Builders had filed the petition before the Division Bench, but the explanation given by the learned Counsel is that the petition filed by Sonam Builders was very restrictive in scope and that the solitary ground canvassed was a pure point of law, namely, the question as to whether the permission could have been refused on the ground that some representation was under consideration. Mr. Pradhan stated that having regard to the law laid down by the Supreme Court, the petition came to be disposed of at the admission stage on this basis alone without going into any other aspects of the matter. We do not desire to comment about the state of affairs because even though what Mr. Pradhan tells us is in fact correct, a more desirable course of action would have been for the T.M.C. at that point of time to have pointed out to the Division Bench as to what the real complexion of the matter was. However, as Mr. Pradhan has rightly pointed out the T.M.C. was not the deciding authority, but only the final implementing authority. The representations had been effectively addressed to the State Government by the review petitioners and, therefore, it was for State Government to have defended the matter by placing all relevant material before the Court. This does not, however, mean that the T.M.C. could not have done so.
73. Mr. C. J. Sawant, learned Counsel appearing on behalf of the Stale Government, submitted that it was manifestly unfair on the part of the review petitioners to level any charges against the State Government. Learned Counsel spent considerable time referring elaborately to the record of the case which is voluminous for purposes of establishing that it was unjustified on the part of the review petitioners to charge the State Government with non-action. He states that on the contrary, the Urban Development Department had taken serious note of the fact that the petitioners were categorised as hazardous chemical industries and had objected to the permission for residential accommodation in the immediate vicinity of their units. The matter had been referred to Dr. Garg, who is an independent acknowledged expert, Mr. Jain, Secretary of the Urban Development Department, had, admittedly, visited the area more than once and had taken a serious note of the situation. Mr. Sawant submits that on the contrary being prima facie satisfied that the grievance projected by the review petitioners was valid that Mr. Jain, the Joint Secretary of the Urban Development Department, had entered into correspondence with the concerned authorities and pending a decision had directed that no further permissions should be granted. Mr. Sawant pointed out to us that the directions as referred to by Mr. Singhvi, Mr. Dada and the other learned Counsel u/s 154 of the M.R.T.P. Act and in support of which certain case-law was cited are distinguishable from the instructions issued by Mr. Jain. In other words, relying on the decision reported in the case of
74. Mr. Sawant thereafter addressed us at considerable length with regard to the controversial Clause 49 and the rationale behind it. The learned Counsel drew our attention to the consequences of a situation arising u/s 49 of the M.R.T.P. Act coupled with a compulsory purchase notice u/s 127 and submitted that the State Government, as a responsible public authority, had to balance the pressing need for housing on the one hand with the absolute requirement of stopping further industry in that area and the staggering financial liability that would arise if the Government were to be called upon to purchase all those lands that were rendered sterile. Mr. Sawant pointed out that the planning processes proceed over decades, that there has been a revolutionary change in the situation, particularly after the Bhopal tragedy on the one hand and the fact that the area had reached a saturation point as far as the location of industries on the other, which was why the Notification had to be brought out by way, inter alia, of para 49 which was a transitory measure or a stopgap arrangement to permit the use of lands in the area at least for residential purposes. Mr. Sawant''s justification was that in the given situation the State Government was left with no option other than this.
75. We would prefer to dispose of this last argument with a very short observation, namely, the State Government should not have and could not have overlooked the lethal danger of permitting residential accommodation to come up in the close proximity of hazardous industries and this comment of ours holds good only with regard to this particular area. More importantly, however, the State Government could not have bypassed the other important issue, namely, the consequences of permitting land-sharks and developers to pounce on that area as they had already started doing and to tempt unit after unit to throw their workers out on all sorts of seemingly genuine grounds by feigning failure of the unit and selling out to developers. If the State Government does not act vigilantly and responsibly in relation to this class of situations, cases cannot thereafter be quoted before the Courts that judicial decisions should not be substituted for those taken by persons and bodies who are incharge of these matters, It is those errors that the Courts have to rectify.
76. On behalf of M/s. Kabra & Associates, Mrs. Suhasini Mutalik has filed Civil Application No. 2559 of 1993. The contention advanced is that the stay order in relation to the 1 km. rule affects these petitioners. It is pointed out that the building complex, which is being constructed by her clients under the name "Brahmand" is situated close to the Indofills Chemical Co., who are the fifth petitioners. It is contended that out of the 15 buildings, ten was complete. In the remaining three, the first slab has been cast and the columns have been laid. In one building, the R.C.C. brickwork and plastering is completed and in the last building the construction is complete till the 4th slab. The buildings together consist of 480 tenements, each building having ground plus seven storeys and the areas of the flats range from 550 sq.ft. to 750 sq. ft. Mrs. Mutalik stated that the occupiers are all middle income group people, who have put in their life-savings for purchase of the flats, and that they have also taken loans from financial institutions. In these circumstances, a strong plea was advanced that the stay order should be vacated so that the remaining structures could be completed and the possession handed over. In any event, the basic submission canvassed by Mrs. Mutalik was that no order for demolition in respect of any of the structures completed or partially completed should be passed as it would result in total ruination of the parties. We have already observed that for a variety of reasons, it would not be either advisable or desirable to order demolition in this case and to this extent, therefore, the short question is as to whether the remaining buildings should be permitted to be completed.
77. Mrs. Mutalik argued at some length in order to refute the allegations of the review petitioners that the lands on which the buildings were constructed is industrial as according to learned Counsel, they come within the residential zone. This controversy occupied a considerable time during the hearings, but we are of the view that having regard to the situation as it obtains at this point of time that no useful purpose would be served by examining those contentions threadbare in so far as we do not propose to dislodge any of the existing structures. Even with regard to the areas where no construction has commenced, it is on an entirely different ground that we propose to direct that no new construction be permitted within the 1 km. zone and, therefore, we refrain from a detailed examination of the controversy regarding whether each of the structures is within the residential or industrial area.
78. Mrs. Mutalik supported her arguments pointing out that even though there are references since the year 1989 to the construction activity being carried out by her clients that the review petitioners had omitted to sue them. She also canvassed the submission that the facts of the case of her clients is entirely different from the case of Sonam Properties and that, therefore, no adverse orders passed in relation to that matter should affect her clients. In general, the application was to the effect that M/s. Kabra & Associates be permitted to intervene and that the stay order be vacated vis-a-vis them. We have heard all the parties who desired to be heard or represented before us, including Mrs. Muta-lik''s clients and we propose to issue composite directions that will take care of the entire set of proceedings.
79. The other head on which detailed submissions were made by Mrs. Mutalik was in order to point out that the scope of the review petition was limited to the dispute between the petitioners and Sonam and that the same, consequently, cannot encompass the present petitioners. This, in our considered view, is a hypertechnicality in so far as the issue is something that concerns the entire region and the decision thereon cannot, therefore, be restricted.
80. Lastly, Mrs. Mutalik contended on the basis of the correspondence exchanged between M/s. Indofills and the Airforce Authorities that the apprehensions expressed with regard to possible hazards are such in relation to which ail necessary safety precautions have been taken and if anything untoward were to happen that its effects will be contained within the factory areas itself and would not, in any way, adversely affect third parties. Mrs. Mutalik advanced this argument in support of her contention that there is, therefore, no justification to prohibit the completion of her clients'' remaining buildings or, for that matter, to permit the existing ones and their occupants to continue. It is true that the documentary evidence placed before us on behalf of the review-petitioners indicates that more than the normal degree of care has been taken towards ensuring safety by each of the petitioner-company. This, in our considered view, is a necessary requirement, but it still does not rule out the possibility of the effects of an accident or a leak spreading over a wider area as has happened not only in Bhopal, in Delhi, but in different parts of this very State from time to time, even very recently. It is for this reason that human habitation must be kept at a safe distance from such units at all times in the overall interest of public safety and public welfare. The argument, therefore, that steps are being taken to contain the hazard, even in the event of an accident and that, therefore, residential buildings should be permitted virtually upto the boundary wall of the chemical units, do not convince us. Mrs. Mutalik was not the only Counsel who advanced this line of argument because at a subsequent stage, Mr. Mehta seriously contested the very basis of the hazards that are pleaded by Mr. Seervai. This, in fact, was the generalised line projected on behalf of the respondents right from when Mr. Singhvi commenced his arguments. Even the State Government has very clearly stated that if the purchase notice were to be served, it would not be in a position to buy up all that land which the review-petitioners insist should be kept vacant. The review-petitioners have, admittedly, not come forward to meet this expenditure. This is really a complex issue with regard to the planning process and which has unfortunately surfaced at a rather late stage. It is quite obvious that the planning authorities were not alive to the hazards involved nor had anybody brought these aspects to their notice until the petitioners themselves started complaining. We do not consider this to be much of a justification because we expect the authorities who are incharge of important functions, such as Sitting and zoning, to be more careful and vigilant with regard to their work functions. When large chemical units are clustered in an area, it is even commonplace knowledge that the lethal dangers apart, ordinary health hazards themselves would prohibit the location of residential areas in the vicinity. We observe with a degree of regard that unfortunately the planning processes themselves receive little of the type of care and expertise that is essential and, more importantly, that all sorts of alterations and modifications are made as has happened in the present case, which are totally unjustified. When the issue comes before the Court, however, it is incumbent that the judicial authority will have to intervene in the matter, particularly if the facts are as gross as in the present case.
81. Appearing on behalf of the original petitioners, Mr. Gor submitted that the earlier order of the Division Bench must be confirmed in so far as it was fully justified, having regard to the circumstances under which that order was passed. It was his contention that the limited grievance of his clients at that point of time was that the permission to develop the land could not have been refused to his clients, having regard to the fact that they came squarely within the four corners of all the requirements and that, therefore, refusal on the ground that a representation from some parties is pending was wholly untenable in law. Mr. Gor submitted both on facts and in law that the earlier Division Bench order is unassailable. In this regard, he submitted that even as of to-day, none of the documents relied on by the review petitioners prescribe a 1 km. rule and that Dr. Garg, who is the most reliable expert, had himself watered down the distances to between 500 to 600 mts. and that too from the actual danger points and not from the peripheries of the premises. It is true that Dr. Garg has altered his stand in this regard. We would prefer not to make any observations beyond stating that this shift does not represent a very happy state of affairs. Under these circumstances, we would prefer not to be guided by this subsequent recommendations. Also, we do not approve of a system whereby measurements are made from particular points, such as storage tanks or the factory, etc., for the reasons that we are concerned with the construction of the buildings to house large numbers of human beings. While prescribing a safety zone, the correct method is not to move closer to the danger area, but away from it. Given the need, these points could have to be shifted within the factory premises and from that angle, in our considered view, the correct method of computation would be to keep\\free from human habitation an area of 1 km. from the outer boundary.
82. There was another aspect of the matter, which was emphasised by Mr. Gor. He stated that for all the solemn statements made by the review petitioners, they have adhered to the strictest and most rigid safety requirements and precautions over the years and that the track-record has been spotless, that there have, in fact, been two accidents which have been suppressed. He also emphasized the fact that but for the respondents having pointed out this important material, the entire issue relating to the complaints from the Air Force Authorities had been completely suppressed by the review petitioners. In sum and substance, Mr. Gor contended that the Air Force Authorities, who are a disinterested body and whose credibility is beyond doubt, have pointed out that it is the review petitioners who are responsible for creating not only pollution, but several other hazards and that, consequently, it is they who should be ordered to ensure that this situation does not continue.
83. We do not propose to record any findings with regard to this disputed material because both camps have had a lot to say about it. We would, however, like to emphasize that the duty cast on the review petitioners is much heavier because not only is the Air Force base in the immediate vicinity but it has also been established that a large number of buildings and virtually housing colonies have come up in the neighbourhood with hundreds of thousands of residents there. The necessity of ensuring that necessary steps are taken to bring pollution levels down to zero as also of ensuring that utmost safety is maintained at all times in relation to the transport and user of hazardous chemicals is all the more essential. We take judicial notice of the fact, however, that experience has shown that the Courts have been faced with a very unhappy situation on this point while, dealing with cases relating to pollution. We have come across many sad instances where the anti-pollution devices and processes, though installed, were not put into operation because it involves a lot of expenditure to run them and the offenders found that it was less costly to keep the enforcement authorities happy and they, on their part, turn a blind eye to what is happening. The track record of the enforcement agencies has been by and large deplorable, to say the least, and the punishments prescribed for the lapses are more in the nature of pinpricks. It is precisely this state of affairs that impels us to take cognizance of the fact that the danger is probably more real than what is apprehended which is why the least that needs to be done is to keep human habitation at a safe distance.
84. Towards the conclusion of the hearings. Mr. Mehta, learned Counsel representing the Applicants in Civil Application No. 2558 of 1993, namely, the Brahmand Flat Owners'' Association, pointed out to us that there are certain submissions which he desires to advance with regard to an entirely different aspect of the whole matter. Briefly stated, learned Counsel''s contention was that regardless of the old approach as to who existed in the area first that in the changed circum-stances the traditional approaches of the Courts will have to be the just opposite of what they originally were. Mr. Mehta, who is a pioneer in the field of environmental law and one of the lawyers who has virtually dedicated himself to this cause, deserves to be commended for the persistence with which he has been fighting these issues for the last more than one decade, which is admirable to say the least. Almost every environment matter of any significance is one with which Mr. Mehta has been associated. He pointed out to us through detailed references to the record as also through very well presented compilations that the entire complexion of the dispute is required to be viewed at from an entirely different angle. Firstly, Mr. Mehta contended that the position as it obtains in 1993 will have to be the starting point for consideration. It is his submission that the developments between 1989 and 1993 are of little consequence because, admittedly, the greater number of buildings for which permission had been granted in that area which incidentally included several clusters which came into existence prior to the dispute, accommodate a couple of lakhs of people. Mr. Mehta stated that for whosesoever fault, as will be evident from the photographs produced by the parties, including the Review Petitioners, a large number of unauthorised structure have come up in that area and the Court is, therefore, presented with a situation whereby the vicinity of the six units is what may be described as a densely populated area. Mr. Mehta has drawn our attention to a string of decisions relating to situations in different parts of the country, such as the disputes relating to the stone-crushing zone in the case of
85. Essentially, learned Counsel contended that it is now a universally-accepted principle that a large segment of the population cannot be dislodged; whereas the single industry or a group of industries can be shifted and if they are creating hazards that there is no option. Mr. Mehta demonstrated to us that it is nothing unusual for even a township to develop after an industry or a set of industries are located at a particular place. The most commonplace example in this regard is in relation to the backward areas which are virtually deserted to start with and have then grown into township immediately business/industries are located there. Learned Counsel, therefore, submitted that even if the industry is pre-existing and even if, on a total consideration of the situation, building permission ought not to have been granted, one has to be realistic to the position as it obtains today. On the basis of the principle that emerges from decisions both in this country and in other parts of the world, Mr. Mehta submitted that there is no option except to relocate the six units in question. He submitted that in terms of resources, it is not difficult for them and that adequate provisions should be made to safeguard the rights of the employees, which can be done even if the units in question are to be shifted. On the basis of these submissions, Mr. Mehta advanced a strong plea in favour of retaining of the existing residential structure and he submitted that even if the Court considers that they are within the hazardous zone that they must be allowed to continue after eliminating the source of the hazards. As a corollary to this, Mr. Mehta contended that through such a procedure, one would be working towards the public interest because at current values the large extent of land that would be made available can be used for housing which to a very large extent will alleviate the chronic shortages that the city of Bombay and its suburbs are facing.
86. In this regard, Mr. Mehta drew our pointed attention to a string of cases that are at present before the Supreme Court in relation to the industries that are located on the banks of the Ganga and which are responsible for polluting the river causing serious hazards to the life and health of large sectors of the population. He pointed out to us that similarly in the city of Agra, action has been instituted against industries who are causing hazards to the Taj Mahal as also to the lives of the people resident there. He was at pains in pointing out to us that in not a single one of these cases has the Supreme Court or any of the concerned High Courts spared the offending industry. In this background, Mr. Mehta argued that it is amazing that the review petitioners who have themselves openly come out with the plea that they are responsible for the hazards should be allowed to get away with the contention that the rest of the population which includes the owners of the adjoining lands should be put to prejudice because of the hazardous nature of their own activities. Even viewed at from the angle of balance of convenience, Mr. Mehta advanced a strong submission that it is the industries who will have to move away or move out and not the residents.
87. We have already had occasion to deal with a more or less similar argument which was advanced by Mr. Singhvi as also Mr. Dada and thereafter by Mr. Korde. All of them had contended that if at all safety distances are to be maintained in keeping with the general principle of setback, these would have to be on the part of the review petitioners themselves. It is true that Mr. Mehta had referred to a generalised principle, but the situation presented with regard to the industries in relation to the river Ganga or the city of Agra or the various other cases cited by Mr. Mehta fall into an entirely different category. Those are all cases relating to environmental pollution, which is a different issue altogether. Mr. Mehta has filed some very interesting documents before us, such as the Con safe Report, Environment Protection Rules, the Rules of Hazardous Waste, a publication of immense importance entitled "Caring for the Earth" and another document entitled "Respect and care for the community of life" and the most significant Earth Summit Rio declaration and in particular Principle No. 10 thereof. All these documents highlight the extreme need and the immense priority that environmental considerations require if this planet is to survive. We had occasion to compliment learned Counsel both for the industry put in by him, but, more importantly, for the very valuable material that he had compiled and presented before us. There can be no two opinions about the fact that in matters relating to pollution control that it must either be stopped or that the industry concerned should be made to move out from that area. The last situation presents itself if the location is such that in spite of the best efforts the damage still continues. In the present situation, we are faced with a problem of an entirely different complexion. Except for some allegations made by the Air Force Authorities, it is nobody''s case that the pollution control measures of the review-petitioners are defective or that they are responsible for damaging the environment. The principle that was enunciated by Mr. Mehta, therefore, in relation to the entire set of situations mentioned by him would have no application here. We do not, for a moment, suggest that those issues are irrelevant, but what we need to highlight is that the dispute before us is of a different nature. In the present instance, and having regard to the past experience, what the review-petitioners are contending is only that a proper zone or a separation distance be maintained between the human habitation and themselves so that in the event of an unfortunate accident, leak or explosion, there will not be any loss or damage to life or severe damage. This, in our considered view, is perfectly permissible and even if some constructions have wrongly been allowed that is no ground on which any more structures should be permitted. The units in question are not personal or proprietary businesses, or small-scale units, but are large industrial undertakings, shifting of which is hardly feasible. As of necessity, these chemical and pharmaceutical units have to be within the close proximity of areas where the entire infrastructure is available and cannot be located at some isolated spot. They had already moved far enough from the city of Bombay and, having regard to the population densities in this country, it would hardly be possible to find any other isolated areas. The consequence of thousands of persons being rendered jobless, if the industries were to move, is a consideration of much seriousness, particularly in view of the present level of unemployment. We, therefore, feel that even though the planners would be well-advised, having regard to the experience in the last two decades, to make adequate provision while locating hazardous industries of this type in the future that the best in the present situation would be to at least maintain a safety distance around the existing ones.
88. One other argument advanced by Mr. Mehta, which we need to deal, is that he has seriously contested the submissions of Mr. Seervai with regard to the basic danger or hazards that these industries present. Mr. Mehta has referred, in some detail, to the Factories Act and the amendments to the Factories Act, particularly in relation to the hazardous processes, after the Bhopal tragedy. He has thereafter drawn our attention to Justice Krishna Iyer''s Article on Bho-poshima, wherein the learned Judge dealt in consideration detail with the terrible hazards from chemical industries and how apart from a large sector of the population getting killed what is worse is that it can cause permanent damage to others that could go down for generations. Mr. Mehta also drew our attention to the Rules framed under the Environment Protection Act. Mr. Mehta submitted that there are enough of safeguards to ensure that the type of disasters that took place in the past cannot be repeated. Coupled with this fact, Mr. Mehta has dealt with each of the substances identified by the review-petitioners and contended that none of these in their own right are lethal. In the unlikely event of leakage or exposure to these products, apart from ante dotes being prescribed, the possibility of loss of life is remote and the danger is also comparatively minimum. Mr. Mehta produced before us certain literature in support of his contention that a fatality can occur only as a result of long-term exposure. He also produced at pages 236 and 237 diagrams on exposure levels and distances for the purpose of potential hazards. Mr. Mehta also relied on the literature produced by him at page 242 of the compilation in support of his plea that the banned and restricted products are few and that none of them are that serious in these units. The totality of these submissions, according to Mr. Mehta, leads to the irresistible conclusion that the danger pleaded by the petitioners is not anywhere as serious as they projected it to be, nor is it great enough to justify a creation of a buffer zone beyond the factory limits. Mr. Mehta, therefore, submitted that there is no justification whatsoever for the insistence in the present case of separation limits. It was his contention that the only safety precautions that are required to be taken are in keeping with the modified and amended regulations which the units, i.e., the review-petitioners must strictly observe and, as long as that is done, that there is no cause of fear whatsoever.
89. With due respect to learned Counsel, with regard to this last head whereby Mr. Mehta also submitted that as far as the storage of hazardous chemicals are concerned that the quantities of the same should be reduced and that they should be decentralised, we do feel it is an over-simplification of the case. The size of the units and their economic necessarily requires large quantities of these chemicals to be used. Mr. Seervai assures us that each of the companies are conscious of this aspect of the matter and have kept within limits chemicals of the barest minimum necessity. What Mr. Mehta seems to have overlooked is the fact that the chemicals in themselves may not be as lethal as the situation that emerges when they are used in the various manufacturing processes. In the Union Carbide Case, it was not the raw products that killed people but the combination of the chemicals out of which deadly pesticides were being manufactured that was fatally poisonous. This Court cannot go beyond the material that is placed before it. We have observed, after a careful consideration of each of the items and the scientific literature in relation thereto, that the industries have rightly been categorised as hazardous. It would, therefore, not be permissible for a Court to go behind such categorisation and to accept the submissions on the basis of literature produced by learned Counsel that the hazards are of a relatively minor nature. This basically is not the function of the Court and, in our considered view, such a course of action would not be justifiable on the basis of the present record. We do, however, accept Mr. Mehta''s contention/submission that the situation as it obtains in 1993 when this Review Petition was taken up for hearing is of consequence and the reasons as indicated by us at more than one part in the judgment that at this point of time no demolition should be ordered.
90. Having regard to the number of parties involved in this proceeding and the volume and length of the hearings and submissions, we have reproduced to the extent necessary the main issue involved and the contentions raised by learned Counsel from time to time. The complexion of the case has altered materially between the point of time when the Sonam petition was first filed before the Division Bench and orders were passed thereon, the stage at which the review petitioners first approached the Supreme Court and the subsequent filing of the review petition on 5-3-1991. By the time the Review Petition came up for hearing before us in November 1993, 2 1/2 years had elapsed and one significant development had taken place, namely, that the Supreme Court had, in the meanwhile, passed an interim order prohibiting any further building activity in the area within 1 km. radius from the review petitioners'' unit. What needs to be noted is the fact that the building activity that is com- plained about has been proceeding in and around that area at a relatively fast pace from year to year and, as pointed out by the petitioners, it was from the year 1989 that the situation really got aggravated. The fact, however, remains that the major building activity with which we are concerned in this petition, namely, the various buildings in respect of which permissions were obtained and which were put up had been sanctioned and constructed and the record indicates that by the time the orders were passed by the Supreme Court stopping further construction, the majority of these buildings had been completed and occupied. A few of them were under construction. Detailed arguments were advanced by learned Counsel before us with regard to the question as to whether revocation of those permission is at all permissible as also on the second count, namely, the question as to whether such revocation is desirable and whether the buildings even assuming permission ought not to have been granted should now be ordered to be demolished.
91. The review-petitioners themselves have not made any such prayer and in the course of the arguments, Mr. Seervai on their behalf conceded that on a responsible consideration of the facts of the case, it may be difficult for him to advance any such prayer. We have, for the reasons indicated earlier, come to the conclusion that no such demolitions should be ordered and, therefore, the debate with regard to the entire head relating to revocation of permission is rendered academic.
92. We have given serious thought to the submissions advanced on behalf of the various respondents who maintain that no restrictions should be placed with regard to further building activity in the area and even if the Courts were to do so that this should be to the minimum as grave prejudice would be caused to the landowners and to the basic issue involved, namely, the urgent need for housing in the area. In matters such as these, there are considerations that have to outweigh the others and which must taken priority. These decisions are also governed, to a large extent, by experiences, good and bad, in respect of similar cases. Where it is necessary for the overriding public good in so far as where the public safety requires that a sizeable sector of the population be kept away from lethal danger, the Court will have to give utmost priority to this facet. The review-petitioners have made out a case for the grant of certain reliefs and despite the many objections and pleas to the contrary, we hold that no further permission for the construction of residential buildings ought to be granted within a 1 km. radius from the six units.
93. In the result, the Review Petition succeeds and the rule is made absolute in the following terms:--
(a) The judgment and order dated 8-11-1990 in Writ Petition No. 4497 of 1990 is set aside and this necessarily implies that the consequent orders passed in other petitions on the basis of this judgment are also set aside.
(b) We refrain from directing that the building permissions granted pursuant to those orders in respect of those of the buildings that have been completed or that were under constructions as tin the date of the stay order passed by the Supreme Court on 8-1-1991 be revoked. We, however, clarify that no additions or modifications shall be permitted in respect of any of these buildings. We also clarify that in respect of those schemes where permissions may have been granted but no actual construction has been commenced as on the date of the Supreme Court order i.e. 8-1-1991 that the prohibition in respect of a total ban on further construction within the 1 km. radius from the chemical units shall apply.
94. Save and except in the aforesaid cases, the stay order passed by the Supreme Court on 8-1-1991 shall continue to the extent that there shall be a prohibition in respect of the grant of any further permissions or for that matter constructions within the I km. radius from the petitioners'' factory. This stay order shall stand vacated only in those of the cases as indicated by us where the construction has been commenced and was required to be stopped by virtue of the stay order of the Supreme Court. The rule is made absolute to this extent only. No order as to costs.
95. Order accordingly.
