Chettur Sankaran Nair, J.@mdashThe reliefs sought in the two petitions are similar, and so are, the grievances. They are therefore disposed of by a common judgment.
2. Petitioners 1 to 5 in O.P. 3473/88 are residents of Chingavanam, while Petitioners 6 and 7 are Secretaries of two Associations, in the area, said to be formed to fight pollution caused by the 5th Respondent-the Travancore Electro Chemicals Industries, called ''the Company'', hereinafter. Petitioner in O.P. 4622/88 is Anr. Association in that locality, with a grievance akin to that ventilated in O.P. 3473/88. Reference to documentation is with reference to O.P. 3473/88.
3. According to Petitioners, ''the Company'' runs a factory where Calcium Carbide and Acetylene black are produced in large quantities. The raw materials include, Calcium Carbonate in the form of lime-shells and carbon in the form of coal, charcoal, carbonised lignite, coke etc. Raw materials are processed under high temperature ranging to 2400 degree centigrade, and in the process 438 kgs. of carbon monoxide and 688 kgs. of carbon dioxide are generated, per ton of calcium carbide produced. Acetylene black is produced by conversion of calcium carbide. Lime slurry is one of the by-products. It is alleged that slurry is discharged into neighbouring streams-Mulakanchira and Puthenthodu. The discharge percolates into neighbouring wells polluting potable water, besides causing silting in the navigable canal, a waterway linking Kuttanad, Vakathanam and other places, submit Petitioners. It is alleged further that the effluents discharged, make an adverse impact on acquatic life. Gaseous emissions pollute the air and, so do suspended particulate material in ambient air, submit Petitioners. Pulmonary diseases and other affluents are caused by atmospheric pollution, it is said. Ext. P-1 series health survey reports, Ext. P-2 letter by an additional Director, and other material are relied on to support this view. It is also alleged that the Kerala State Pollution Control Board, called ''the Board'' hereinafter granted consent (Annexure VI) to the Company to discharge effluents into streams, unaware of their statutory responsibilities, and unmindful of the impact it would make on life and environment. Referring to a report of the Board, dated 19th October 1987 (Annexure II in report filed on 29th June 1988), it is argued that the effluents are discharged without consent, or in excess of the permitted limits. It is seen that dissolved solids (inorganic) and cyanides were discharged at dangerous levels exceeding the permitted level. The tolerance limit of Bio-Chemical Oxygen Demand is 30 Mgl/1. But, it was 232 Mgl/1 on 13th November 1987. The tolerance limit of Chemical Oxygen Demand is 250 MgL and on 13th November 1987 it was found to be 352 Mgl. On 18th November 1987 Cyanides level was 13.9, while tolerance limit is 0.2.
4. Air pollution in disastrous proportions is also alleged. It is said that seven chimnies/stacks spew out enormous out-put of carbon monoxide, carbon dioxide and sulpher dioxide into ambient air, without adequate dispersion facilities, causing toxicity of air and fall out of lethal particulate material. Five of the seven chimnies are said to be below 30 metres in height and this also makes a dent into ambient air quality, pushing it beyond tolerance limits. Referring to the counter affidavit of the Board dated 10th November 1989, Petitioners aver that the pollution load is 8.096 tons per day and that concentration of particulate material is 1872 Mg/NM3. On the basis of the same affidavit, it is pointed out that the pollutants expelled/emenating from the stacks is in the range of 19862 kgs. of particulate material, and 7158 kgs. of carbon monoxide per day. A report dated 29th June 1988 submitted by the Board is referred to by Petitioners and they contend that while tolerance limit of Cyanide is 0.2 Mgl/1, it was actually 13.9 Mgl/1. Annexure I dated 27th October 1989 produced by the Board shows that emission of sulpher dioxide (SO2) was not noticeable. The emission of Carbon Monoxide (CO) is 330/Mg/NM3, (Normal meter cube). Annexure IV dated 11th August 1989 produced by the Board shows that particulate material is in the range of 8096 kgs. while safety limit is 250 kgs. This would indicate that clouds of death waft in the air. Noise pollution also is alleged and it is argued that tolerance limit has been outrageously exceeded. The affidavit of the Board dated 10th November 1989 shows that sound level inside the plant, was 105 d. ba; 80 d. ba. 20 metres away, and 57 d.ba. 105 metres away. According to J.E. Park and K. Park textbook by Preventive and Social Medicine, 7th Edition, Page 201, tolerance limits are as follows:
Residential area .. 25 d. ba. Living room .. 40 d. ba. Office .. 35 to 45 d. ba. Workshop .. 40 to 60 d. ba.
''Environmental impact analysis''.-John Row and Wootan shows that tolerance limit of noise level is safe between 42 and 52 decibels.
5. It is further alleged that even the direction by the Board not to discharge decanted effluents into the streams, to construct masonery catch drains'' etc., were not adhered to. The Board also noticed dumping of solid wastes like charcoal ash to the extent of 1260 tons a year. These also would lead to pollution on account of, seepage and run off drains. It did-, and that is what Annexure VIII dated 24th September 1987 produced by the Board shows. Samples of water from the wells of Sarvashree Thambi, Scaria, Abraham, Sugathan and Ravi were analysed by the Board. The samples revealed traces of acidenty, ammonia and nitrogen etc.
6. After referring to these facts, which according to Petitioners spell out present and potent pollution, reference was made to the provisions of law imposing duties on industries and the Board. The enactments that govern this area are:
(a) Water (Prevention and Control of Pollution) Act, 1974 and the Rules framed thereunder.
(b) Air (Prevention and Control of Pollution) Act, 1981
(c) and Environment (Protection) Act, 1986.
Water (Prevention and Control of Pollution) Act, contains a comprehensive definition of pollution [Section 2(e)]. Stream is defined in Section 2(j) and Trade Effluent u/s 2(k). Boards are constituted and they are charged with functions of a wide nature. Chapter V contains provisions for effective enforcement and Chapter VII prescribes penalties. Sections 24 and 25 impose prohibition and restrictions. Likewise, the Air (Prevention and Control of Pollution) Act, 1981 contains elaborate provisions. Section 2(a) incorporates a comprehensive definition of air pollutants. Boards are constituted to perform a variety of functions. Section 19 empowers the State Governments in consultation with the Boards to declare air pollution control areas. Sections 20 - 22 and 24 - 26 contain enforcement provisions while Sections 37 - 43 contain penal provisions. The Environment (Protection) Act, 1986 provides for protection and improvement of environment and allied matters. Two of these Acts are a sequel to the stockholm convention (June 1972) under the Aegis of the United Nations. Petitioners would submit that the directives in these, statutes have not been obeyed by the Company, or enforced by the Board. These facts and this state, amount to an invasion of the right to life guaranteed under Article 21, is the refrain of Petitioners case.
7. The Board admits that there were functional inadequacies and statutory violations on the part of the Company, and that infrastructural facilities in the Company are insufficient to combat pollution. The different reports made by the Board reveal a state far from satisfactory, in environment management. The Board would however say that there has been marginal betterment, and that the Board within their constraints, are taking steps to control if not eradicate, pollution.
8. According to the Company, they are making attempts in earnest to contain pollution and they have made appreciable betterment. Referring to
9. In its supplemental affidavit dated 27th, January 1990 the Company has indicated the steps taken to eliminate pollution. The construction of a granite wall and drains to prevent seepage of lime slurry, the installation of a filter press to separate water from lime, processing of wash water and scrubber water, safe storage of carbon dust and coke, raising the height of chimneys in Calcium Carbide and Acetylene black plants, steps to instal a multi cyclone guided inlet dust collector, regulatory measures to contain noise level in desulphurisation plant, and providing a Green belt etc., are measures envisaged to chepk pollution.
10. The latest reports submitted by the Board, indicate that pollution is still a live problem. For instance, as on the following dates excess over tolerance limit was noticed as below:
| 3-3-1990 | P.H. in well water | Maximum 5-5 | Existing 6-9 |
| 1-7-1990 | Particulate matter | Tolerance limit 250 Mg/Nm3 | Existing 575 Mg/Nm3 |
| 3-3-1990 | Noise inside | Tolerance limit upto 75 d. ba. | Existing upto 106.d. ba. |
| 3-3-1990 | Suspended Solids | Tolerance level 100 | Existing 1820 |
| 3-3-1990 | Total dissolved solids Cyanide | Tolerance limit 2100 (Not stated) | Existing 3250 Existing 702 (Excess) |
Latest position in respect of many of the other chemical pollutants are not known. Yet, as noticed it has to be concluded that there is pollution, beyond limits of tolerance. Such pollution according to Petitioners amounts to an invasion of the rights guaranteed by Article 21.
11. The decisions of the Supreme Court illustrate the multifaceted attributes of life recognized in Article 21. The decisions in Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors. AIR 1981 S.C. 746,
though it may seem curious to some that the survival of a relatively small number of three inch fish among all the countless millions of species extant, would require the permanent halting of a dam for which the Congress has expended more than $ 100 Million, we conclude that provisions of the Endangerous Species Act require precisely that result.
12. "The Environmental Decade in Court", by Lettie Wenner notices several instances where courts acted with great concern in enforcing environment policies. In Halsey v. ESSO Petroleum Co. Ltd. (1961) 1 W.L.R. 683, the Court granted damages for pollution from smuts and smell, in addition to an order of injunction. In Thames Water Authority v. Blue and White Launderettes Ltd. (1980) 1 W.L.R. 700 C.A., the Court of appeal held that water discharged from a washing machine attracted the Discipline of Public Health (Drainage of Trade premises) Act, 1937.
13. Deprivation of life comprehends deprivations, other than total deprivation. Right to life is more than immunity from extinction of life. It guarantees life in its many splendoured facets, emotional, spiritual and aesthetic. Talent, thought process, human personality and expression of these, are complements of life. If Beethovan or Mozart were denied expression of their gifts in music or Micheal Angelo or Rabindranath Tagore were denied expression of their faculties, history would not have reckohed their lives. A human machine that ticks, or a creature that breaths is not all, we reckone of human personality. Through, the imperceptible mist of time, new horizons are seen on the skyline. Right to environment, is part of the right to life. Apart from the rights under Article 21, and the elegant articulations in Article 51(g), rights inhering human race have been declared, in the United Nations ''Declarations of Human Rights (1948)''. In 1984 United Nations adopted a resolution, reading:
All human beings have the fundamental right to an environment adequate for their health and well being.
Pure air and sweet water are essential for sustenance of life. Statutory recognition of this, is found in Water (Prevention and Control of Pollution) Act, 1974, Air Prevention and Control of Pollution) Act, 1981 and Environment (Protection) Act, 1986. There are wide ranging enactments in other countries too, like Water Act, 1945, The River (Prevention of Pollution) Act, Clean Rivers (Estuaries and Tidal Waters) Act, The Dumping at Sea Act, The Deposit of Poisonous Wastes Act, Planning Controls and Litter Acts, in England. Violation of the rights statutorily recognised, is an actionable wrong, for which legal redress is available. True, there are cross cultural conflicts, thrown up by a post-industrial society. Industry and life must co-exist. There cannot be a total ban on industries, or on exploitation of nature. But, a line has to be drawn where competing claims, balance and harmonise. Where, the line is to be drawn will depend on the facts of each case.
14. The importance of environment and a proper environment management policy cannot be under rated. Awareness of this when necessary, must be enforced by sanctions. Environmental deficit and degradation cause disastrous consequences like global warming, green house effect and depletion of ozone layer. Damage to bio-physical environment is a direct result of pollution. The problem of waste management and) trade effluents have added new dimensions to pollution problems. The United States alone belches out into the atmosphere 300 Million tons of air pollutants in a year and these include carbon monoxide, sulpherdioxide, Nitrogen, Chlorine, and Cyanides. In the year 1987 alone 100 Million tons of C.F.Cs. (Chloro Fluro Carbons) were discharged into the atmosphere. The United States Environment Protection agency noticed in a survey that Methyl Chloroform and Carbon Tetrachloride discharged into air by industries deplete the ozone layer. Computor models estimate that mean global temperature will rise between 1.8� to 10� Farenheit in the next 50 to 100 years due to, pollution. Carbondioxide (CO2) increase monitored by NASA''s Goddard Institute for Space Studies, shows that addition of burnt fuels to atmosphere over the centuary, has raised heating power by 1 Watt per square metre of earth''s surface. Cloud formation due to air pollution can also trap sunlight and heat the earth. Photo chemical smogs with lethal consequences due to air pollution are well known. Ozone depletion has caused deleterious effects. In stratosphere, a region between 16 kms. and 48 kms. above the plains of earth ozone forms a layer, which is man''s only protection from ultra violet radiation. Such radiation can cause cancer and depress the human immune system. The 1985 Antartic expedition reported loss of spring time zone layer, by 40 per cent over Antartica region. It was recorded that gaps larger than the United States, were noticed in the ozone layer. Chlorines, Bromines and Carbons are responsible for this. The Vienna Convention 1985 and, the Montreal Protocol 1987, have cognised these high risk factors and have called for a Halon Freeze with effect from 1st January 1992 and an export ban on C.F.Cs. Likewise, the International Meet-London March 1989-attended by 124 delegate countries and the Montreal Meet during May 1989 resolved on phasing out C.F.Cs. by A.D. 2000. The Hague Declaration (March 1989) has suggested creation of a new constitutional authority with enforcement powers within the framework of the United Nations, to combat air pollution problems. The United Nations Environment Programme (U.N.E.P.) has recommended an Inter government Panel on Climate Change (I.P.C.C.). The International Court of Justice in Corfu Channel Case held that every state is obliged to prevent its territories being used against the interest of other states.
15. Apart from air pollution, pollution in high seas leading to degradation of marine environment has been observed in recent years. The seas of the world have becoming global dumping grounds. Industrial wastes pose a threat to Biota of the Sea. A conference on dumping held in London in 1972, resolved against dumping of mercury, cadmium compounds, organohalogen compounds, plastics and crude oil and certain other synthetic materials and petroleum products into oceans. Convention on the Law of Sea 1982, engrafts regulatory measures, in the background of experience of Torry Canyon and Santa Barbara leading to spillage of 1.5 Million tonnes of oil in sea.
16. Inland water pollution is largely due to discharge of chemicals like sulphides, fluorides, chlorine and mercury into streams and rivers, and use of pesticides on lands close to water sources. The Hoogly Estuary into which 150 industries discharge effluents, is an example of this. Waterborne diseases are caused by water pollution.
17. Sound pollution also has reached high risk levels. Report of the "Noise Level Pollution Committee" constituted by the Chairman, Pollution Control Board highlight the Indian Scenario, vividly. Industry, Automobiles, Construction works, Aircrafts, Trains, Crackers and Fire works are particularly guilty of sound pollution. The Committee noticed that domestic machines, like air conditioners, kitchen machines, portable generators etc., produce sound pollution beyond safe levels. Loud speakers, which have become an integral part of social, political and religious life in this country also lead to intolerable noise output. High noise is proved to cause biochemical changes in man, elevating levels of blood Catecholamine, cholestrol, white cellcounts and lymphocytes. Fatigue, shift of threshold limit of hearing leading to loss of hearing, changes in metabolism, and blood circulation are other known consequences caused by high levels of sound. There is no statutory prescriptions of sound level in India. But safe levels have been indicated in Indian Standards-I.S. 4954. W.H.O. ''Criteria-12'' also indicates safe levels.
18. There has been a socio-ecological bankruptcy and echo system disruption. This fact is cognised by the United National Meet on Biosphere (1968), I.C.S.O. (International Council of Scientific Organisation) and I.U.C.N. (International Union for Conservation of nature and Natural Resources). The need for an integrated echo system and a new relation of human society with Biosphere and redefinition of issues as an imperative have been realized. It is time to think of a National Environment Audit Agency, with effective powers in areas of planning regulation and enforcement. Man and his technology have at an ever increasing rate disrupted the natural echo system. The biological problem of extinction, is not unreal. Sheer self interest requires institutionalisation of safeguards. To recall the Words of Winston Churchill:
The dark ages may return... on the gleaming wings of Science; what might now shower immeasurable material, blessings, upon mankind, that bring about its destruction. Beware, I say, time is short.
19. I have referred to these aspects at a length-perhaps n6t essential-but necessary to highlight the magnitude of the matter, which must serve as a backdrop while considering the competing claims and drawing line''s between human concerns and industrial concern on a cost benefit analysis principle.
20. I have noticed the wide sweep of the rights guaranteed by Article 21, which comprehends the right to healthy environment, and the duty in the State to protect these rights. The magnitude of the problems caused by pollution also have been noticed. To eliminate pollution, industries cannot be eliminated. The competing claims, must balance at the point, where, the outerlimit of pollution touches the. tolerance levels or safety limits. If it crosses that point, it crosses the rubicon and the activity generating pollution is liable to be interdicted. When the degree of pollution crosses the tolerance limits, it invades the rights, under Article 21 and it cannot pass the mustering might of the Constitution. Tolerance limits have not been .fixed statutorily in many instances. Hence, reasonable standards, accepted by informed agencies and authorities must serve as the yardstick. The limits indicated by the Pollution Control Board, should serve as the standard in this case. As already noticed pollution in many areas, exceeds tolerance limits and judicial intervention is called for.
21. Respondent company submits that its investment is by the neighbourhood of rupees fourteen crores and that it faas expanded about rupees three crores to check pollution. It is said that rupees thirty lakhs have been spent to acquire a ''filter press'' and Anr. rupees thirty five lakhs to acquire a multiple cyclone glided inlet dust collector. To close down the factory would mean loss of economic wealth and loss of employment to many, submits Respondent company. That would be no justification for allowing a harmful activity to continue, invading the fundamental rights oft Petitioners, though that would be a relevant consideration in moulding the reliefs.
22. On an anxious consideration of the rival claims and competing concerns, I grant Respondent company time till 31st December 1990, to take regulatory measures to bring down pollution to tolerance limits indicated by the Pollution Control Board. Company had more than two years time to rectify the defects, since the filing of the writ petitions. If the Respondent Company does not adhere to this, the Board and the State of Kerala shall ensure that the Respondent Company is closed down, after 31st December 1990 and that it is not allowed to operate the plants or expand its activities until it is certified pollution free by standards of safety determined by the Board. Till that date the Company is permitted to operate the plants in operation today.
23. The Union of India should consider prescription of standards for effluents, ambient air quality and for sound levels. Section 112 of the Clean Air Act, 1971 (U.S.) provides for prescription of standards after public hearing. In the United States, the National Environment Protection Act contemplates ''Environmental Impact Statements'' to be made. Even more elaborate provisions are made in the United States Clean Air Act, 1990 passed by the Senate in April, 1990 and by the House of Representatives in May, 1990. Similar measures could be thought of. It is worthwhile considering, whether licencing of an industry should not be preceded, by an environmental audit. The creation of a National Environment Agency with powers in areas of planning, enforcement and sanctions deserve consideration. The existing provisions regarding sanctions and enforcement require strengthening. Counsel for Board submits that instances are not rare, where prosecutions have been Withdrawn, without good reasons. An institutional perspective must prevail in these areas and related questions must be upgraded to concerns of national priority. The world belongs to us in usufruct, but we owe a duty, to the posteriority, to the unborn to leave this, world at least as beautiful as we found it.
The Writ Petitions are allowed as indicated herein before. I express appreciation of the assistance rendered to Court by Shri Romy Chacko who argued the case with thoroughness, as Amicus Curiae. No costs.
