@JUDGMENTTAG-ORDER
V.V.S. Rao, J.@mdashThis writ petition is filed seeking a writ of mandamus (i) to call for the records pertaining to the cause of leakage of chlorine gas from the premises of the third respondent, including the report from the second respondent, (ii) to take necessary action against the third respondent on the report submitted by the second respondent for violating the Air (Prevention and Control of Pollution) Act, 1981 (''Air Act'' for brevity) and the Environment (Protection) Act, 1986 (''Environment Act'' for brevity); (iii) to pay a compensation of Rs. 1,00,000/- each to the petitioners for their sufferings and health problems for leakage of chlorine by third respondent to be payable by respondents 3 to 5 ; (iv) to direct the third respondent to shift the chlorine gas storage cylinders/ containers from the premises of third respondent to any other area other than the residential area; and to declare that action of the third respondent is in violation of Article 21 and 51(A) of the Constitution of India.
2. The petitioners are residents of Bharatrathna Defence Laboratory Employees Cooperative Housing Society. They state that due to negligence on the part of the third respondent chlorine gas - which is a hazardous substance as defined u/s 2(e) of the Environment Act - was leaked on 2-11-1996 at about 8-30 p.m. from the third respondent''s premises, by reason of which they were affected resulting in breathing problems, irritation to the eyes, throat and burning sensation. They were admitted in different hospitals for treatment and hence they sought the reliefs as referred to above.
3. In the counter-affidavit filed on behalf of respondents 1, 3, 4 and 5 it is stated that none of the petitioners were affected seriously due to leakage of chlorine gas and treatment was provided in Government and private hospitals free of cost. It is further alleged that the pump house was constructed in 1965 and the store yard where standby chlorine cylinders are kept was constructed in 1985 whereas the residential colonies of the petitioners were constructed later knowing fully well about the existence of the pump house and the store yard.
4. In the counter affidavit filed on behalf of respondents 2 and 8 it is averred that the leakage accident does not come under the definition of ''major accident'' and hence Section 5 of Manufacture, Storage, Import of Hazardous Chemicals (MSIHC) Rules, 1989 notified under the Environment Act does not apply to this accident. Rules 7 to 15 of MSIHC Rules do not apply to this installation/cylinder, as the quantity of chlorine stored is only 65 Kgs against threshold quantity of 10 tonnes of chlorine. If the quantity is less than 10 tonnes, it does not fall under the purview of this Act.
5. In the reply affidavit filed by the petitioners it is stated that the respondents have constructed their office and decided to store the chlorine gas knowing fully well a residential colony would be coming up abutting their compound wall close to which the chlorine gas was stored and the terrain in the area is slopping down towards the petitioners colony, that the third respondent neither at the time of construction of their office nor subsequently informed the petitioners'' society regarding usage of their yard for storage of chlorine gas. The third respondent is trying to shield himself by quoting the regulations applicable to liquid petroleum gas, which is not relevant. The chlorine gas that was leaked from the possession of the third respondent is beyond the standards prescribed by the statute. The petitioners denied the contention of respondents that they were accorded treatment free of cost and no one was seriously affected.
6. This Court, by order dt. 9-2-2000 appointed a Committee consisting of three environmental activists including specialist in chest diseases to be nominated by the Superintendent of T.B. & Chest Diseases. The said Committee has submitted a report. The petitioners have not filed any objections to the report. Therefore, we may refer to certain aspects considered by the said Committee headed by one Captain J. Rama Rao.
7. After discussing the chemical and physical properties of chlorine as well as adverse effects caused by exposure of chlorine, the Committee reported the incident as follows. The leakage of chlorine gas from a 40 Kg cylinder kept near the pump house in AGE, E & M yard, was noticed at 2.00 p.m. on 2-11-1996. The staff of Military Engineering Service (MES) took appropriate action by immersing the top half of the cylinder in the water tank as an immediate measure. The MES Officers felt that the situation was under control and left the place around 4-30 p.m. A watchman was posted there. The residents of Bharatratna Colony felt the effects of leakage between 8-00 p.m. to 9 p.m. by way of pungent smell, burning of eyes, breathlessness and choking. Due to wind flow, the inhabitants of the houses on either side of the road leading towards north from the MES premises were worst affected, namely, House Nos. A/1/10, 11, 20, 22, 24, 70 and 71. They include the petitioner Nos. 1 to 4 and 9 to 31. The other inhabitants whose houses are situated away from the road were not affected by the leak. The effect was of varying intensity and wherever the window and doors were kept open and wherever the houses are nearer to E & M yard the impact was more. The Committee felt that though initial response by the staff was prompt and satisfactory, going by the nature of the chlorine gas and onsite conditions like cold season in November, proximate distance of the houses on the north, the MES authorities did not take proper emergency onsite and offsite measures. The Committee felt that for assessment of severity of the damage due to inhalation of chlorine gas the following parameters have to be examined.
a. Chest examination:
1. Detailed history with thorough physical examination.
2. Provisional physical diagnosis.
b. Laboratory tests, apart from routine Complete Blood Picture (CBP) Erythrocyte Sedimentation Rate (ESR), blood urea, blood sugar, complete urine examination, the most important x-ray chest PA view, with radiological interpretation.
c. Special tests like pulmonary function tests, those patients presented with cough, shortness of breath, wheeze to know the airway obstruction due to inhaled gas and effect of broncho-dilator therapy.
d. Arterial blood gas analysis to know the severity of hypoxia and to take remedial measures to correct hypoxia in those patients who are seriously ill due to inhaled gas.
e. Consultant chest physician''s opinion to tackle the situation.
8. As per the Committee, there were 19 casualties out off which 15 patients were admitted as in-patients on 2-3 November, 1996 in Yashoda Hospital, Malakpet. One was treated as outpatient and the remaining three were treated at Osmania General Hospital as in-patients. All the cases were registered as medico-legal cases. It also felt that maintenance of records like case sheets, radiologist reports of X-ray etc., are not complete. Therefore the Committee observed asunder:
Medical records made available either by the patients or by the respective hospitals to the Committee were not complete. This lapse is glaring in the case of Yashoda Hospital, which had more serious patients, including Ms. Susheela. This was a major handicap in assessing the damage by the Committee, conclusively.
With a view to assess the long term effects, all the petitioners available locally were asked by the Committee to undertake medical examination and pulmonary function tests (PFT). Only 14 people have turned up for whom medical examination and pulmonary function tests were conducted. The results are appended in the enclosure attached. As per these tests, no long-term effects have been found in any of the 14 people examined.
(emphasis supplied)
9. During the course of arguments it has been reported that the first petitioner Ms. Susheela, who was aged 78 years died. The learned Counsel submitted that she died due to exposure to chlorine gas on 2-11-1996. The Committee examined the medical reports made available to them and found as under:
Ms. Susheela died of cerebro-vascular accident (CVA) due to systemic hypertension, as per the statement of her son, on 19th July 1997, at Kamineni Hospital, nine months after the gas leakage. Medical records of the Kamineni Hospital were not available for the Committee.
Prior to the gas leak, she was suffering from systemic hypertension, coronary artery disease (CAD), and left ventricular hypertrophy (LVH). She was 76 years of age. After the gas leak, she developed severe broncho-spasm due to inhalation of gas and concomitantly she developed myocardial infarction (Ml- inferiolateral), as per medical records of Yashoda Hospital. She was admitted in the Yashoda Hospital, Malakpet at 11.30 p.m. on 2nd November, 1996, and was discharged on 7th November, 1996 in a stable condition.
As per the Committee''s view though it appears that the death is unrelated to the exposure to the chlorine, when the gas leak occurred, it is conclusive that gas leak had severe adverse impact on her health, as stated above.
10. The Committee also dealt with various aspects as to potential risk impact by reason of usage and storage of chlorine and made the following recommendations.
i. The MES authorities have not followed statutory emergency management procedures, not even the elementary ones like informing the residents in the surrounding areas, treating the incident as of minor nature and in a casual manner.
ii. Though the exposure levels of the chlorine gas appears to be low the trauma and anxiety caused to the nearby residents was severe, especially on the aged, sick and young people. Their trauma was further accentuated by the lack of information, and access to relevant authority for getting information.
iii. The MES authorities should have taken nearby residents into confidence while dealing with the emergency, or in the post-emergency period.
iv. Exposure to chlorine gas was particularly severe on people who kept open the windows and doors of their houses, and came out onto the road in windward direction in sheer panic.
v. The effect of exposure of chlorine gas was severe on Ms. Susheela, who resided in the nearest house from the MES site in the windward direction. Though it appears that the death is unrelated to the exposure to the chlorine gas, it is conclusive that the exposure had severe adverse impact on her health.
11. The learned Counsel for the petitioner Sri K.V. Simhadri submits that the authorities of MES Garrison have not taken immediate steps after the leakage was reported. He submits that by reason of he negligence both in keeping the chlorine cylinder in the mids of residential colony as well as not immediately attending to remedial steps, the authorities are guilty of negligence. He submits that as the petitioners'' fundamental right'' under Article 21 of the Constitution of India for enjoying pollution free air has been violated by reason of negligence of the authorities the petitioners are entitled for compensation as prayed.
12. The learned Counsel for respondents 1, 3 to 5 has placed the record before us. We must record that though the Committee pointed out that the staff of MES were negligent in not following statutory emergency management procedure, no attempt was made by respondents 1 and 3 to 5 to place any material in rebuttal. Without intending any discourtesy to the learned Counsel, I must say that the assistance rendered by the learned Additional Standing Counsel to this Court is nil and negligible. By reason of this, we must record that the submission made by the learned Counsel for the petitioners on the strength of the report of the Committee appointed by this Court stands unrebutted. We record the finding accordingly.
13. After hearing the learned Counsel and after perusing the report of the Committee appointed by this Court, we are convinced that though initilally the staff present at E & M yard took some remedial measures by immersing top half of the cylinder in water tank, they did not monitor the leakage further. This resulted in further leakage by reason of which some of the residents in the houses on either side of the road leading towards north from MES premises are said to have suffered. We also further hold that there is no definite proof that the death of Ms. Susheela, the first petitioner, occurred only due to exposure to chlorine. The Committee recored a finding that she was 76 years of age and she was a patient of systemic hypertension, coronary artery disease and left ventricular hypertrophy. It is also to be noted that though she was admitted in hospital on 2.11.1996 at 11.30 p.m. due to severe broncho-spasm, she was discharged on 7.11.1996 in a stable condition and therefore on the basis of the material placed before us, it is not possible to agree with the learned Counsel for the petitioner that she died only due to exposure to chlorine leakage. We also hold that due to paucity of medical evidence, it is not possible to hold that the adverse effect on other petitioner is severe and serious and it is also not possible to assess special damages. Equally, it is not possible to assess non-pecuniary damages in the absence of any such pleadings and proof before this Court.
14. Faced with the situation, the learned Counsel for the petitioners placed reliance on various judgments of the Supreme Court to contend that it is permissible for the Court to exercise powers under Article 226 of the Consititution of India to award compensation by way of nominal damages as well as exemplary costs when fundamental rights of the petitioners are violated.
15.
...it is now a well accepted propostion inmost of the jurisdictions that monetary or pecuniary compensation is an appropriate and indeed an effective and some times perhaps the only suitable remedy for redressal of the established infringement of the public servants and the State is vicariously liable for their acts. The claim of the citizen which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element the objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishement for the offence (irrespective of compensation) must be left to the Criminal Courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortuous act committee by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no strait-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them.
(emphasis supplied)
16. Right to clean drinking water and clear air and atmosphere is a fundamental right as held by the Supreme Court in
...Right to live is a fundamental right under Article 21 of the Constitution of India and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.
17. On the date of conclusion of the arguments in this case it is admitted before us that the respondents are not storing Chlorine cylinders in E&M yard and therefore, it is not necessary for us to give any directions in terms of the implementation of the Air Act and Water Act. However, the question of granting compensation as prayed remains to be considered.
18. In
We are of the view that the enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. Since the persons harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous prepartion of substance or any other related element that caused the harm the enterprise must be held strictly liable for causing such harm as a part of the social cost for carrying on the hazardous or inherently dangerous activity. If the enterprise is permitted to carry on an hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on he enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overhead.
19. The Supreme Court also ruled that when the enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting for example, in the escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortuous principle of strict liability under the rule in Ryland''s case.
20. Placing reliance on Oleum gas case (supra), learned Counsel vehemently submits that respondents 1 and 3 to 5 must be held strictly liable to compensate all the petitioners who are affected by the leakage of chlorine from the premises of the respondents. After referring to the report of the Committee appointed by this Court, we have already held that the respondents were negligent in not following the statutory emergency management procedures like informing the residents in the surrounding area etc., Nonetheless, we cannot apply the principle laid down in Oleum gas case (supra). Further, though some medical certificates and discharge certificates are there, sufficient material is not placed before us in proof of effects warranting special damages and non-pecuniary damages. The first petitioner died during the pendency of the proceedings and legal respentatives of the first petitioner have not come on record. Even other wise the death of the first petitioner is not mainly due to exposure to chlorine, but for other reasons. Therefore, in exercise of power under Article 226 of the Constitution of India, no special damages and no non-pecuniary damages can be awarded to the petitioners. No case is brought to our notice where Courts have awarded damages for environmental hazards of this nature where chlorine gas stored for the purpose of disinfection of drinking water leaked causing some inconvenience. In this connection, it is apposite to quote the following observations of the Supreme Court from M.C. Mehta v. Kamalnath case (supra).
Pollution is a civil wrong. By its very nature, it is a tort committed against the community as a whole. A person, therefore, who is guilty of causing pollution has to pay damages (compensation) for restoration of the environment and ecology. He has also to pay damages to those who have suffered loss on account of the act of the offender. The powers of this Court under Article 32 are not restricted and it can award damages in a PIL or a writ petition as has been held in a series of decisions. In addition to damages aforesaid, the person guilty of causing pollution can also be held liable to pay exemplary damages so that it may act as a deterrent for others not to cause pollution in any manner.
21. Even in Oleum Gas case (supra) the Supreme Court directed that Delhi Legal Aid and Advice Board to take up the cases of all those who claim to have suffered on account of Oleum gas and to file actions on their behalf in the appropriate Court for claiming compensation against the Company. In sofar as the awarding of general damages is concerned, some material is placed before us only in relation to some of the petitioners. In these cases either medical certificates or discharge certificates issued by the doctor or hospital are placed before us. But for the chlorine gas leak it was not necessary for these petitioners to go to hospital and get necessary treatment. Therefore, leaving it open to the petitioners to sue for appropriate damages in appropriate Civil Court we deem it appropriate that ends of justice would be met by directing respondents 1, 3 to 5 jointly and severally to pay an amount of Rs. 3,000/- each to petitioner Nos. l to 15, who filed medical certificates/discharge summary certificates. Insofar as other writ petitioners are concerned, we cannot award any general damages and it is open to them to take appropriate legal action in appropriate Civil Court which may decide all questions without being influenced by any observations made hereinabove.
22. In the result, the writ petition is disposed of to the extent above in terms of the observations and directions herein above. Respondents 1, 3 to 5 shall also pay costs of the Writ Petition which we quantified at Rs. 5,000/-.
