& Ors etc. Vs. Bayer India Ltd. & Ors  INSC 1097 (9 September 1996)
Singh, B.L Hansaria Hansaria. J.
growth, yes; but by exposing a large segment of society to the risk of losing
lives, no. This apprehension is not imaginary. Bhopal disaster brought to the knowledge of all what a tragedy can
be caused by chemical industries. In the wake of what happened there more than
a decade ago, industrialists engaged in production of chemicals started
thinking of taking precautionary and protective measures to see that if worst
wore to befall, how could their financial liability be taken care of.
aforesaid mental make-up led some leading chemical manufacturers in the
country, like Bayer India Limited, one of the respondents herein, to approach
the Bombay High Court in a pending writ petition filed by some builders seeking
certain orders of the High Court. In one of the writ petitions taken by the
High Court for hearing, which was numbered as 4497/90, the Court required the
Municipal Corporation to re-examine the building plans and to pass appropriate
orders keeping in view, inter alia, the provisions of section 46 of the Maharasthra
Regional and Town Planning Act. The matter was brought to this Court by the
respondents contending, inter alia, that in the sanctioned plan the area had
been shown reserved for industrial user. This Court permitted the respondents
to file a review petition before the High Court. On being so approached, the
High Court dismissed the intervention application of the respondents and
directed the Municipal Corporation to permit construction. This order led the
respondents to approach this Court again by filing Interlocutory Application in
the disposed of SLP. This Court, by an order passed on 24.2.1993, directed the
High Court to dispose of the review application and further directed to
maintain status quo, which prevented the appellants tn carry on construction
activity within one k.m. radius from the factory premises. The High Court disposed
of the review application on 26.9.1994 by giving the following directions :-
No additions or modifications shall be permitted in respect of buildings that
have been completed or those were under construction as on the data of stay
order passed by this Hon'ble
Court on 8.1.1996.
In respect of schemes where permission may have been granted but no actual
construction has been commenced as on the date of this Court's order dated 8.1.1991
, prohibition in respect of a total ban on further construction within 1 km.
radius from the chemical units shall apply.
Save and except in the aforesaid cases, the stay order passed by this Court on
8.1.1991 shall continue to the extent that there shall be a prohibition in
respect of any further permissions or for that further permissions or for that
matter construction within 1 k.m. radius from the chemical factories.
The stay order shall stand vacated only in those of the cases as indicated
where construction has been commenced and was required to be stopped by virtue
of the stay of this Hon'ble
appeals question the aforseaid directions of the High Court.
appeals were heard on a number of occasions and being of the prima facie view
that by giving aforesaid immunity to the industrialists injustice has been
caused to the residents of the locality inasmuch as prohibition of
constructions within 1 k.m. radius like- Thane did adversely affect the right
to reside in the locality, leaving at the same time the large number of
inhabitants already residing exposed to the risk mentioned above, it was
thought by us that if the industrialists wanted to safeguard their interest in
the event of some accident happening in their factories, it was for them either
to shift their factories to such places where the residential area could be
kept wide apart from the factory premises. But then,the response of the
respondents to the first proposal being negative because of the huge financial
involvement we applied our mind as to whether we could examine at our level the
question of relocation.
Respondents were heard on this aspect on many occasions and in the written
submissions filed on 2.9.1996 by Bayer India. which can be taken as a
representative stand of the respondents, it has been stated relocation is not
possible logistically, financially or otherwise. The written submission
mentions about various aspects relating to relocation at pages 16 to 20. It has
been felt by us that we have neither the expertise nor are in possession of
various information, which shall be required. to decide one way or the so far
as the question of relocation is concerned. In such a situation what has
appealed to us is to leave this matter to be examined by an Authority which we
would require the Central Government to constitute, as visualized by section
3(3) of the Environment Protection Act, 1986 (the Act). It is not necessary to
deal at length as to what is visualized by this Act and why ? This has been
explained in detail in a judgment delivered by one of us (Kuldip Singh, J.) on
August 28, 1996 in Writ Petition (C) No.914 of 1991, on behalf of a 3-Judge
Bench. The concept of "sustainable development", whose salient points
have been noted in the aforesaid Judgment, does call upon one and all to see to
the maintenance of balance between development and its sustenance in future.
the appeals at hand, we are confronted with a problem which has more serious
consequences and which touches the core of Article 21 of the Constitution
inasmuch as the very lives of the inhabitants living around the factories in
question are in great jeopardy so much so that any probable accident in the
factories may see annihilation of large number of inhabitants. May be the
accident does not take place, as has been submitted by Shri Jaitley appearing
for the respondents. There is, however, no ruling out of the same altogether as
Bhopal has shown. No risk can, therefore, be taken. But then relocation does
need a deeper probe because of the various factors which would be required to
be gone into. Such an exercise can usefully be taken by an Authority of which
mention has been made above.
therefore, direct the constitution of an Authority under section 3(3) of the
Act by the Central Government, who shall confer all the necessary powers under the
Act on the Authority, which shall be constituted within one month from the
receipt of this order. The Authority shall submit its report to the Central
Government within three months after examining and deciding all the relevant
issues including those mentioned by us. This would be done by affording
reasonable opportunity of hearing to the concerned parties.
up actions shall be taken by all concerned as per the recommendations of the
Authority within reasonable time.
the constitution and deliberation of the authority would take times, and its
ultimate result cannot be foreseen at this stage, we have thought it fit to
direct the Bombay Municipal Corporation to proceed further with the plans which
had been submitted by the appellants, some of which also came to be sanctioned.
But then, as sanctioning in some cases was about a decade back and as the
scenario and thinking on the subject has since then changed a lot, so also the
building bye-laws, we have thought it fit to direct the Corporation to
re-examine the question of grant of sanction on the basis of the existing rules
and bye laws.
Corporation may proceed with this exercise, but it would await the result of
the report of the aforesaid Authority.
have desired the Corporation to undertake this work at this stage itself
because the matter has been delayed already and Authority's deliberation would
not be available for quite some time.
the aforesaid view of the matter, the review petitions filed before the High
Court by the respondents are not required to be kept alive and they would stand
dismissed on withdrawal, to which effect prayer was made before us. The
impugned directions of the High Court would automatically lapse.
appeals are disposed of with these directions. No order as to costs.