Kalyaneshwari Vs Union
of India & Ors.
JUDGMENT
Swatanter Kumar, J.
1.
This
petition under Article 32 of the Constitution of India has been filed by the
petitioner Kalyaneshwari (a registered Society),through its Chairman, with a
prayer that a writ of mandamus be issued directing the Union of India and other
respondent-States to immediately ban all uses of asbestos in any manner
whatsoever; further that a committee of eminent specialists be constituted to
frame a scheme for identification and certification of the workers/victims suffering
from asbestosis or other asbestos related diseases or cancer. The petitioner
also prayed that the respective Governments should be directed to identify the
workers/victims in the respective States and Union Territories and to provide
them due treatment as well as to take measures to prevent harmful effects of
asbestos in the factories or establishments where such activity is being
carried out and also to initiate criminal proceedings against all the
responsible persons including the owners of such factories, organizations and associations
for infringing the right to life of the asbestos victims.
2.
The
above writs/directions have been prayed for on the premise that petitioner,
Kalyaneshwari, is a non-government alorganization, registered under the
Societies Registration Act XXI of1860. It is a voluntary organization allegedly
promoted to serve the general public without distinction of caste or religion
and working for the protection of consumers' interest. This Court in the case
of Consumer Education and Research Centre v. Union of India [(1995) 3SCC 42)]
accepted the well established adverse effects of asbestos including the risk
beyond the work place and held as under: "17. It would thus be clear that
disease occurs wherever the exposure to the toxic or carcinogenic agent occurs regardless
of the country, the type of industry, job title, job assignment or location of
exposure. The disease will follow the trail of the exposure and extend the
chain of carcinogenic risk beyond the workplace. It is the exposure and the
nature of that exposure to asbestos that determines the risk and the diseases
which subsequently result. The development of the carcinogenic risk due to asbestos
or any other carcinogenic agent, does not require a continuous exposure. The
cancer risk does not cease when the exposure to the carcinogenic agent ceases,
but rather the individual carries the increased risk for the remaining years of
life..."
3.
The
petitioner alleges that developed countries all over the world have drastically
reduced the manufacture of asbestos and some of them have even banned different
types of asbestos. In India, the use of this carcinogenic material is
increasing every year approximately at the rate of 12% and the petitioner drew
attention of the concerned authorities towards this issue and requested them to
take stringent actions, but to no effect.
The World Trade Organisation
considered this aspect in the EC-Asbestos case, [WT/DS135/ABR]adopted on 5th
April, 2001 where its appellate body observed that available scientific data
reveals that a high mortality rate persists despite the so called `safe' use of
Chrysolite Asbestos. Surveys carried out more than 30 years after the
introduction of controlled use policy in United Kingdom indicate a significant
increase in deaths from Lung Cancer and Mesothelioma, not only among the
workers but even to the families residing nearby such plants. Citing the example
of some countries and the measures being taken by different organizations,
request was made for banning import, manufacture and use of asbestos and it is
averred that `controlled use' is hardly workable.
It is also averred by
the petitioner that in most parts of the world, there was a drastic reduction
in manufacture and use of asbestos. In fact, efforts are being made to ban on
use of asbestos in any form. On the contrary, in India, use of asbestos was
permitted indiscriminately on the premise that its controlled use is absolutely
safe. There is a large number of victims in India who are suffering from
various effects of asbestos in one form or the other. The petitioner claims to
have identified five hundred plus victims from five different States, namely,
West Bengal, Rajasthan, Jharkhand, Andhra Pradesh and Tamil Nadu. The
petitioner claims that in order to find out the exact health scenario of
asbestos workers, it got 14 direct workers of an asbestos unit examined by
qualified occupational health doctors and the results were shocking, inasmuch
as 13workers were suffering from asbestosis with five workers being in advanced
stage.
Though these workers
are covered under State ESI Scheme, no proper and adequate treatment is being
provided to them. Thousands of poor and ignorant people in Udaipur District in Rajasthan
were engaged in asbestos mining before the Ministry of Mines decided in the
year 1996 not to issue or renew any asbestos mining licenses in India. Still today,
some of them are engaged in illegal mining, which they do at the instance of
local asbestos products manufacturers. It is also averred by the petitioner
that there is complete failure on the part of the manufacturers in providing
safety equipments to workers, regular health check-up, monitoring air borne dust
and maintaining health register of the workmen. The petitioner also claims to
have already documented more than 500 victims suffering from asbestos related
diseases from the above-noted five States and, upon examination by well-known
chest specialists, they have been identified as suffering from such diseases.
The cost of the treatment
is quite high. First, no compensation has been paid to these victims and
second, even if some compensation was paid it was too meagre to meet the
expenses. All these victims are suffering for no fault of theirs but due to
exposure to asbestos over which, they hardly have any control. There is no law
in place which directs payment of compensation to such victims. No medical
records are being maintained to regulate the treatment of victims of
Asbestosis. The carcinogenic properties of asbestos including Chrysotile or
White Asbestos, are well-established and the same is a universally accepted
fact. Despite overwhelming evidence, asbestos which has been banned in other
countries is still being manufactured, imported and used in India and the
Government has failed to take proper action which compelled the petitioner to
approach this Court by filing the present Writ Petition in larger public
interest as there is apparent violation of Articles 14 and 21 of the
Constitution of India.
4.
This
petition was filed in the year 2004. Thereafter, notice has been issued to the
respondents, various affidavits have been filed and the matter has been heard
from time to time. One of the main objections raised by the respondents and,
particularly, respondent No.37 i.e. Asbestos Cement Product Manufacturers
Association is that the present Writ Petition is an abuse of the process of the
Court and has been instituted at the behest of a business rival. The petition lacks
bona fide and is intended to take unnecessary advantage of the proceedings
before the Court. This issue, to a large extent, has been dealt with by a Bench
of the Gujarat High Court in B.K. Sharma v. Union of India, [AIR 2005 Guj 203].
Yet, the present petition has been filed with the intention of creating
impediment in the establishment and running of the industrial units in various
States dealing with production or manufacture of asbestos in accordance with
law and without infringing any right of others whatsoever. This issue is of some
significance and we shall proceed to deliberate on the same and record our
conclusion at a later stage. First, we would like to deal with the merits of
the case and what directions, if at all, can be issued by this Court.
5.
Several
States, Union Territories as well as Union of India have filed separate
affidavits. In the affidavit filed on behalf of the Union of India, it is
stated that the organized sector in India uses only imported variety of
Chrysotile asbestos which is considered to have least harmful impact on the
health of workers engaged in the manufacture of asbestos products and
sufficient precautionary measures are being taken by the industry to protect
the workers from excessive exposure to the hazardous impact of asbestos fibre. Meeting
the contentions raised by the petitioner as afore noticed, it is submitted on
behalf of the concerned respondents that only selective references have been
made by the petitioner to unnecessary inflate the impact of asbestos fibre on
public health. No recognition has been given by the petitioner to the strict
emission norms prescribed for the industries manufacturing asbestos products by
Ministry of Environment and Forest and other efforts undertaken by the Ministry
have also not been referred to by the petitioner. Prescription of stringent
emission norms is one of the main effort made by the concerned Ministry. The
prescribed norms in the Environment(Protection) Act, 1986 are as follows : "These
standards are 2.0 mg/Nm3 of total dust and 4 fb/cc of pure asbestos material,
now being revised to 0.5fb/cc. Ministry of Labour has revised the permissible work
place emission norms vide notification dated April 2001 bringing it down to 1
fb/cc from 2 fb/cc. The report of WHO in this regard has been quoted out of
context. In the said report it has been clearly stated that further research is
required to determine the adverse impact of Asbestos Fibre on human
health."
6.
The
asbestos product only contains 8-10% asbestos fibre and the rest is cement
(50%), clay (30-35%) and fly ash, wood, pulp, etc. which are not considered
harmful for human health. Even here the asbestos fibres are locked with cement
matrix particles and there is no scope for its disintegration/spreading in the
air in normal circumstances. Referring to the proceedings before the Calcutta
High Court, the Union of India submitted that the Calcutta High Court refused
to impose any ban on the manufacture and use of asbestos in Writ Petition No.
412 of 2002, copy of which has been placed on the record. It is the stand of
the Union of India that the petitioner has not furnished any details of the
industries which are working contrary to law and where the workers are exposed
to such hazardous health conditions. It is only then that the Government can
take action in accordance with law and the petition, as such, lacks specific particulars.
7.
States
have taken different stands in their respective affidavits. However, all of
them have stated that appropriate measures are being taken to ensure working of
such units in accordance with law. In the affidavit filed on behalf of the
State of Kerala, it is averred that there is only one factory carrying on
manufacture of asbestos cement sheets and allied products in the entire State.
This factory has obtained licence under the provisions of the Factories Act. It
is further pointed out that this factory was established with fully automatic
fibre handling system in the year 1986. After that, noasbestos manufacturing
factory has been established in the State. While referring to the judgment of
this Court in the case of Consumer Education and Research Centre (supra), it is
averred that strict instructions were issued to the Inspector of Factories and
Boilers to take urgent steps for implementation of the directives of this
Court. There is constant watch/review upon the standards of permissible exposure
limit. Value of fibre/cc should be in line with the international standards and
it would not exceed 0.1 fibre/cc at any time in the last three years. Some
states like Himachal Pradesh, Tripura, Mizoram, Sikkim, Arunachal Pradesh and
Manipur have stated that there is no asbestos factory within their territory.
8.
State
of Tamil Nadu in its affidavit has averred that only 13factories which are
handling Asbestos have been brought under the purview of Factories Act, 1948
out of which 3 factories are not working for the past 5 years and in the
remaining 10 factories" Membrane Filter Test" is regularly being
conducted and the asbestos fibre is found to be within the permissible limits.
The workmen of these factories are covered under the Workmen Compensation Act/Employees
State Insurance Scheme/Group Insurance of Insurance Company. Thus, their
interests are well protected. State of Bihar in its affidavit has stated that
presently there is no industrial unit involved in manufacturing asbestos in the
State. The use of asbestos product in the State is limited and is not to an
extent that the secondary user of asbestos is likely to suffer from
Mesotheliomafatalities attributed to asbestos. On the contrary, it also appears
from the records that there are 22 cases of asbestosis in Gujarat and three cases
of Mesothelioma in Andhra Pradesh. Out of these, persons suffering from
Asbestosis or other diseases in Gujarat have not been given any compensation
and their cases are pending, while the three persons suffering from
Mesothelioma in Andhra Pradesh have been paid the compensation. Thus, it is a
matter which essentially has to invite the attention of the Court.
9.
From
the above narrated factual matrix, giving rise to this Public Interest
Litigation, it is clear that first, the Court has to examine whether any
statutory, fundamental or other right of any person is being violated and an
activity which is prohibited under law is being carried out i.e. production and
manufacture of asbestos and allied products? If so, whether the Government is
actively permitting such illegal activity? Second, whether in any case this
Court can, in law, direct the banning of this activity, if not, what directions
can be issued by the Court?
10.
From
the contents of the Writ Petition filed before this Court, it is clear that
there is no law enacted so far which requires banning of any activity in regard
to asbestos at the stage of mining, manufacture or production. Of course, there
can be no doubt that uncontrolled utilization of asbestos, in any form, can be
hazardous to human health. The reply affidavits filed by different States as
well as Union of India clearly bring out that such activity, wherever is being
carried out, is in accordance with specified parameters and under due supervision.
The Writ Petition filed does not provide any data or detailed facts in relation
to such uncontrolled or unauthorized activity of manufacture of asbestos being
carried out in any State.
Merely stating that a
few hundred workers were subjected to medical examination and were found to be
affected by inhalation of asbestos particles may not be sufficient for this
Court to accept it as a general proposition that there is hazardous use of
asbestos all over the country, particularly, in view of the fact that such
activity is being carried out at the mining or industrial level in different
parts of the country. This Court had the occasion to examine this matter at
great length in the case of Consumer Education and Research Centre(supra)
wherein it issued certain directions.
Once that judgment
had been pronounced, there is hardly any occasion for the petitioner to institute
this Writ Petition as an independent proceeding. The petitioner has made no
effort to collect any information/data from various States as to whether the
directions issued by the Court in that matter are being strictly implemented or
not at all. On the contrary, it is the stand of the States as well as Union of
India that the directions issued by this Court are being strictly adhered to.
The parameters and norms have been specified and the industries using such raw materials
are being constantly watched, in relation to all the functions of the factory,
specially keeping in view the environment and health status of the workers and
nearby residents. Even subsequent to the filing of the present petition, the
petitioner has not put in any effort to seriously rebut the averments made in
various affidavits filed by the States.
11.
In
Jayjit Ganguly v. Union of India, [CWP No. 412 of 2002decided on 15th December
2004], a Division Bench of the Calcutta High Court also noticed that there is
no dispute that asbestos fibre is hazardous to health and continuous exposure
to certain types of such fibre can also prove to be fatal as it does not
dissolve and the same is so thin that it can be inhaled and deposited in lungs.
While noticing these facts, the Court referred to the judgment of this Court in
the case of Consumer Education and Research Centre (supra) and the report of
the Committee appointed by the Union of India to conduct study of asbestos
fibre products. Relying upon the Committee's report, the Court noticed that
there was no data available to demonstrate as to what is the ratio of death
directly attributable to asbestos fibre in relation to the products
madeavailable to the consumers in India.
The Court, while
dismissing the Writ Petition held as under: "During the course of hearing
we came to learn that in 2001 yet another Committee was constituted by the
Union of India through the Ministry of Environment for the purpose of devising
the method of clearance for new or expansion of asbestos based products and to
evolve a policy strategy to deal with use of asbestos. We are told that the
suggestions given by the said Committee have implemented by providing stringent
emission norms in terms of the Environment Protection Act, 1986 and work zone
standards under the Factories Act, 1948. Therefore, it appears to us that the
said committee too was involved with the matters pertaining to mining and
manufacture of asbestos fibre and had no occasion to deal with the hazards of
user of products manufactured from asbestos fibre. In such situation, we do not
think that it would be appropriate for us to issue any direction as has been prayed
for in the instant writ petition for we are unable to weigh the advantages of
having asbestos based products and not having the same, in the absence of
appropriate datas therefore. One thing, however, is clear that a large number
of small scale industries which are normally labour incentive industries are
depending on asbestos as their raw material for manufacture of their end
product."
12.
Once
the matter has been dealt with and pronounced upon by this Court by giving a
detailed judgment containing directions, we see no reason for filing the
present petition. However, since the Petition has been pending for a considerable
time before this Court, we will prefer to discuss the merits thereof. As
already noticed, there is no law banning the use of asbestos in various
manufacturing processes despite its adverse effects on human health. It is not
for this Court to legislate and ban an activity under relevant laws. Every factory
using or manufacturing asbestos, obtains a licence under the Factories Act as
well as permission from the competent authorities including permission under
the Environmental Laws. Once all the laws in force have been complied with and
directions of this Court as contained in the case of Consumer Education and
Research Centre(supra) are carried out in their true spirit, we see no reason
as to why this Court, in exercise of its extraordinary jurisdiction under
Article 32of the Constitution, should ban such an activity when admittedly
large number of families are dependent upon such processes. What has to be
ensured is that proper precautions are taken.
The Court had already
made ILO guidelines as one of the safety measures to be complied with by the
industries and it is expected of each State Government and the Union Government
to ensure safe and controlled use of asbestos. What is required is better
supervision and regulatory control rather than banning of the activity. Lack of
specific data as well as vague averments in the Writ Petition amongst others are
the grounds on which we should decline to pass the mandamus prayed for. The
affidavits filed by the official respondents, including Respondent No. 37,
specifically point out `safe and controlled' use of asbestos in manufacturing
processes. The prayer with regard to constitution of a committee comprising of
specific persons is, again, not a matter that falls within the realm of
jurisdiction of this Court. It isfor the expert bodies in the concerned
Ministries which should regulate proper measures in this regard to ensure
proper utilization of asbestos and raw materials in relation to various
manufacturing activities, if they are being carried on in accordance with law
and without endangering the life of the people.
13.
It
has been averred in one of the affidavits filed by the petitioner itself that
the Government had introduced the White Asbestos (Ban on Use and Import) Bill,
2009 (hereinafter referred to as, `the Bill'), which is pending in the Upper
House. Thus, there could be no doubt that it is a matter which squarely falls
in the domain of the legislature and the legislature in its wisdom has taken
steps in the direction of enacting necessary law. Issuance of any direction or formulation
of any further policy by this Court will obviously be a futile exercise. There
could hardly be any justification for banning, completely or partially, of the
activity of manufacturing of asbestos and allied products in face of the above
admitted position.
14.
In
the matter relating to secondary exposure of workers to asbestos, though the
grounds have been taken in the Writ Petition without any factual basis, again
in the Rejoinder filed to the counter affidavit of respondent No.37, this issue
has been raised by the petitioner in detail. In the earlier judgment of this
Court in the case of Consumer Education and Research Centre (supra), hazards
arising out of primary use of asbestos were primarily dealt with, but certainly
secondary exposure also needs to be examined by the Court. In that judgment,
the Court had noticed that it would, thus, be clear that diseases occurred
wherever the exposure to the toxic or carcinogenic agent occurs, regardless of
the country, type of industry, job title, job assignment or location of
exposure.
The diseases will
follow the trail of the exposure and extend the chain of the carcinogenic risk
beyond the work place. In that judgment, the Court had also directed that a review
by the Union and the States shall be made after every ten years and also as and
when the ILO gives directions in this behalf consistent with its
recommendations or conventions. Admittedly, 15years has expired since the
issuance of the directions by this Court. The ILO also made certain specific
directions vide its resolution of2006 adopted in the 95th session of the
International Labour Conference. It introduced a ban on all mining,
manufacture, recycling and use of all forms of asbestos. As already noticed,
serious doubts have been raised as to whether `controlled use' can be
effectively implemented even with regard to secondary exposure. These are circumstances
which fully require the concerned quarters/authorities in the Government of
India as well as the State Governments to examine/review the matter in
accordance with law, objectively, to achieve the greater health care of the
poor strata of the country who are directly or indirectly engaged in mining or
manufacturing activities of asbestos and/or allied products.
15.
As
already noticed above, the Government has already presented the Bill in Rajya
Sabha. The statement of objects and reasons of this Bill specifically notices
that the white asbestos is highly carcinogenic and it has been so reported by
the World Health Organisation. In India, it is imported without any restriction
while even its domestic use is not preferred by the exporting countries. Canada
and Russia are the biggest exporters of white asbestos. In 2007, Canada
exported 95% of the white asbestos, it mined out of which 43% was shipped to
India. In view of these facts, there is an urgent need for a total ban on the
import and use of white asbestos and promote the use of alternative materials.
The Bill is yet to be passed but it is clearly demonstrated that the Government
is required to take effective steps to prevent hazardous impact of use of asbestos.
16.
In
light of the above discussion, we do not see any reason togrant any of the
prayers made in the Writ Petition except to the extent that we would issue the
following directions while disposing of theWrit Petition:
a. Ministry of Labour in
the Union of India and Department of Industries and Labour in all the State
Government shall ensure that the directions contained in the judgment of this Court
in the case of Consumer Education and Research Centre (supra) are strictly
adhered to;
b. In terms of the above
judgment of this Court as well as reasons stated in this judgment, we hereby
direct the Union of India and the States to review safeguards in relation to primary
as well as secondary exposure to asbestos keeping in mind the information
supplied by the respective States in furtherance to the earlier judgment as
well as the fresh resolution passed by the ILO. Upon such review, further directions,
consistent with law, shall be issued within a period of six months from the
date of passing of this order;
c. Further we direct
that if Union of India considers it proper and in public interest, after
consulting the States where there are large number of asbestos industries in
existence, it should constitute a regulatory body to exercise proper control
and supervision over manufacturing of asbestos activities while ensuring due
regard to the aspect of health care of the workmen involved in such activity.
It may even constitute a Committee of such experts as it may deem appropriate
to effectively prevent and control its hazardous effects on the health of the
workmen;
d. The concerned authorities
under the provisions of Environment (Protection) Act, 1986 should ensure that
all the appropriate and protective steps to meet the specified standards are
taken by the industry before or at the time of issuance of environmental
clearance.
17.
However,
we find that it is imperative for the Court to issue the above directions in
order to strike a balance between the health hazards caused by this activity on
the one hand and ground reality that a large number of families, all over the
country, are dependent for their livelihood on this activity, on the other. We
certainly are not entering into the arena of legislature and are passing above
directions in furtherance to the law laid down by this Court which, in terms of
Article 141 of the Constitution, is binding on all concerned and to ensure
effective and timely implementation of the provisions of the Environment
(Protection) Act. These directions must be read and construed in comity with
the proposed legislation and are in no way detrimental to the same.
18.
Before
parting with this file we have to deal with one of the main objections raised
by the respondents, as noticed above, particularly, Respondent No. 37 that the
present petition is a result of business rivalry and has been filed by the
petitioner at the behest of other industries and the entire Writ Petition lacks
bona fide and is complete abuse of process of law. The petitioner NGO claims to
be a registered body under the Societies Registration Act and non-profit organization,
inter alia, working for protection of the environment and other public welfare
activities. It also aims at protecting various interests of the common man
particularly those who have no means and/or access for redressal of their
grievances.
It is concerned about
the health hazards to workmen resulting from manufacture and use of asbestos
and, thus, it prays for complete ban on such activity. As already noticed, this
petition was defended by different respondents i.e. the State Government, Union
of India and Association of Asbestos Cement Product Manufacturers. In light of
this objection and the material placed on record, a Bench of this Court passed
the following Order on 13th August, 2010 : "Kalyaneshwari has filed this
writ petition seeking imposition of ban and payment of compensation to the industrial
workers working in the manufacture, import and use of asbestos. This petition
was filed as far back on 5 th May, 2004. In the case of B.K. Sharma v. Union of
India the Gujarat High Court vide order dated 9th December, 2004, has made the
following observation : "
As far as preliminary
objections raised against the maintainability of the petitions are concerned,
we could have thrown out the first petition, being Special Civil Application
No. 14460 of 2004 but for the other two petitions on the same subject matter.
Normally, multiple petitions under Public Interest Litigation, on the same subject
matter are not entertained. However, the first petition does not seem to have
been filed bonafide or for real and genuine public cause and it does not
inspire our confidence to treat it as Public Interest Litigation in real sense.
The resolution dated 15th July, 2004 was produced at the belated stage. The
relationship between some of the office-bearers and members of the Board of Trustees
with the personnel of Electro Steel Castings Limited is difficult to be
overlooked. It, therefore, leads us to believe that the first petition is a
sponsored petition. In ASHOK KUMAR PANDEY v. STATE OF WEST BENGAL and Ors.
(supra), the Hon'ble Supreme Court, in no uncertain terms, has observed that
"when there is material to show that a petition styled as a public
interest litigation is nothing but a camouflage to foster personal disputes,
said petition is to be thrown out." Since there is business rivalry
between the said ESCL and the Respondent No. 5 and since the said ESCL is in
the habit of sponsoring such petitions, we do not concur with the view of the
present petitioners that there is a real and genuine public interest involved
in the litigation.
It is difficult to
believe that they have approached this court to wipe out violation of
fundamental rights and genuine infraction of statutory provisions, but not for
personal gain or private profit or political motive or any oblique consideration,
as observed by the Hon'ble Supreme Court in that case."The above
observation of the High Court indicates the relationship between the NGOs and
the Steel Company, whose name is quoted hereinabove. Shri Colin Gonsalves,
learned senior counsel appearing on behalf of the petitioner herein all
throughout these proceedings till today, fairly states that he has looked into the
matter and it would not be possible for him to appear on behalf of the
petitioner in this matter any further. Hefurther states that Advocate-on-record
has also addressed a letter stating that she would not like to represent Kalyaneshwari
(NGO). In the circumstances, the Registry is directed to issue notice to the petitioner
informing them of the next date of hearing.
The matter is made
return able on 27th August, 2010. In the meantime, we would like to know from
the Central Government as to whether petitioner-NGO is on the list of NGOs
maintained by the Union of India and whether the petitioner-NGO is funded by
the Central Government? We request Mr. H.P. Raval, learned Additional Solicitor
General to assist u8s as amicus in the matter. The Advocate-on-Record is given discharge.
We appreciate the stand taken by Shri Colin Gonsalves in taking a fair stand in
the case. The Advocate-on-Record is given discharge. We appreciate the stand
taken by Shri Colin Gonsalves in taking a fair stand in the case."
19.
After
passing of that order the petitioner NGO was further directed to file an
affidavit explaining its conduct highlighted by Gujarat High Court in the case
of B.K. Sharma (supra). In furtherance to the direction of this Court dated
27th August, 2010, B.K. Sharma, claiming to be working as Secretary of the
petitioner, filed a detailed affidavit. In this affidavit, besides reiterating
some of the averments made in the Writ Petition, it has been specifically
averred that `on the advice of the High Court all the three Writ Petitions were
withdrawn so as to make proper representation to the Central Government to
consider the objections in the petition.' Specific dispute has also been raised
and it is denied that one member of the Society, namely, Shanti Swaroop has
worked with the Steel Company ESCL and that only consultancy services were
provided by him on part time basis and comparison of his services is sought to
be made with that of lawyers and Chartered Accounts working for the company.
In the affidavit
filed by the petitioner in furtherance to the order of this Court dated 27th
August, 2010, it is stated that B.K. Sharma was neither working as
Advisor/Consultant of ESCL between November-December 2003 to March-April 2004
nor was he looking after the marketing activity of ESCL in Madhya Pradesh. It
is stated that during this period he was working in Rajasthan on an important project.
First, it is nowhere denied that B.K. Sharma had no connection of any kind with
ESCL at any point of time; second, even in the affidavit, necessary particulars
have not been given of the company or the project for which he was working in
Rajasthan. Still attempt has been made to put the blame on the Gujarat High
Court by stating that the Court had not appreciated the facts correctly. Other
NGOs had also filed some writ petitions and as such the petition by the
petitioner was bona fide. It is also averred, `it is pertinent to mention that
neither the Court nor the respondent felt the need for substantiating the
allegations with evidence, which is contrary to the settled proposition of law
that a person making an allegation needs to prove it'.
20.
Three
writ petitions had been filed in the Gujarat High Court, including one by B.K.
Sharma acting on behalf of the petitioner NGO, which was petitioner No. 2, in that
Writ Petition, seeking direction against the authorities to take appropriate
preventive steps and measures against the Respondent No.5 M/s. Saw Pipes Ltd. In
proceeding further with the construction activities of RespondentNo.5's project
comprising Blast Furnace and Ductile Iron/Cast Iron pipe, fittings casting
manufacturing plant and foundry near Mundra, Kutch with further prayer that
they be stopped from carrying on any activity and that the factory constructed
should be demolished. These petitions were heard at great length by a Bench of
Gujarat High Court. Ultimately, the Court recorded its findings in paragraphs
7.2,36 & 37 of the judgment. In these findings, the Court noticed that earlier
a PIL had been filed in the Madras High Court, allegedly sponsored by ESCL,
against a company manufacturing the same articles. Later on that company had
been taken over by ESCL and the present petition is also filed as a result of
business rivalry. The Court, prima facie, recorded the finding that there is
close association of B.K. Sharma with the rival company of ESCL and one Shanti Swaroop
was also appointed as consultant for the NGO, who was earlier associated with
ESCL. The Court finally recorded the conclusion that the petition was mala fide
and was a result of collusion between the steel company and the NGO.
21.
Another
aspect on which the High Court recorded its adverse finding against the
petitioner is that the petitioner had submitted some official documents,
including noting on Government files, which were not published documents and to
which the petitioner had no access. Despite directions of the Court, the
petitioner had failed to disclose the source of possession of those documents.
The matter did not end there as, when the true copies of the said noting/documents
were produced before the Court by the Department, it came to light that certain
paragraphs/portions of the nothings etc. had been omitted in the documents
filed by the petitioner and certified as true copies. From the record before
us, it is clear that B.K. Sharma as well as Shanti Swarup had professional commitments
in one form or the other either on permanent or temporary basis with ESCL. It
has been stated in the affidavit filed by B.K. Sharma that three writ petitions
were withdrawn on the advice of the Gujarat High Court which is hardly true. The
Court had only granted liberty, while dismissing the writ petitions as
withdrawn, to approach the Central Government. The Central Government had again
declined to accept the representations made by the petitioners resulting in
filing of writ petitions for the second time which culminated in the final
judgment by the Gujarat High Court in the case of B.K. Sharma (supra).
Above was the conduct
of the petitioner before the Gujarat High Court and we hardly find any
improvement in its behaviour before this Court in the present litigation. Even
before this Court, a judgment which has attained finality on all factual matrix
and even otherwise, is attempted to be brushed aside by making irresponsible
statements, inter alia, that the Gujarat High Court had failed to apply its
mind. The judgment of the Gujarat High Court dismissing all the three writ petitions
was challenged before this Court by way of filing Special Leave Petitions which
came to be dismissed vide order dated 28thJanuary, 2005. Thus, the judgment of
the Gujarat High Court for all intent and purposes attained finality and we do
not think that legality or correctness of the judgment can now be questioned in
these proceedings. It is of no use and help to the petitioners now to claim that
no proof was produced before that Court to establish the allegations that the
petition was filed at the behest of ESCL. They were writ petitioners and the
Court, after hearing the parties at length and perusing the record, has
recorded the above findings which, in any case, do not suffer from any
infirmity, much less, illegality so as to be disregarded by this Court. We are
constrained to say that the findings recorded by the Gujarat High Court reflect
the picture of the petitioner which certainly invites judicial chastisement and
appropriate orders.
22.
During
the hearing of this Writ Petition, the Court had called upon the learned Addl.
Solicitor General to find out from the concerned Ministries whether the
petitioner NGO was a registered NGO and whether it was granted any financial
assistance or grant-in-aid. However, vide letter dated 26th August, 2010, copy
of which has been placed on record by the learned Addl. Solicitor General, it
has been informed that the petitioner NGO is not recognized by any Ministry and
no financial assistance has been sanctioned to it.
23.
Another
aspect, which has still not been clarified by the petitioner, is how the
present petition came to be filed in face of the judgment of this Court in the
case of Consumer Education and Research Centre (supra) and, in fact, what was
the need to file it. It cannot be ignored that valuable time of this Court is
consumed in dealing with such public interest litigations which are filed
without proper study and data and merely on some reference to very few workmen
working in an industry and without projecting any requirement at the national
level demanding the attention of this Court in treating it as a national
problem. The Kerala State Human Rights Commission vide order dated 31st
January, 2009 has also dealt with the same problem which does not even find a
mention in the present petition and which the petitioner is expected to know as
it claims to be working for the common man in this behalf. Every litigant, who approaches
the Court, owes a duty to approach the Court with clean hands and disclose
complete facts. A petition which lacks bona fide and is intended to settle
business rivalry or is aimed at taking over of a company or augmenting the
business of another interested company at the cost of closing business of other
units in the garb of PIL would be nothing but abuse of the process of law.
24.
Presumably,
and as contended, the direct impact of banning of activities of mining/manufacturing
relating to asbestos shall result in increase in demand of cast iron/ductile
iron production as they are some of the suitable substitutes for asbestos. It
is not in dispute that ESCL is one of the largest manufacturer of iron and
allied products in India and there was a professional and/or other connections
between ESCL and B.K. Sharma on the one hand and B.K. Sharma and Shanti Swarup
on the other who, admittedly at present, is involved with the activities of NGO
for a considerable time. Thus, it would be a reasonable conclusion to draw that
the Writ Petition has been hardly filed in public interest but is a private
interest litigation to give rise to business opportunities in a particular
field.
25.
In
Ashok Kumar Pandey v. State of West Bengal [(2004) 3SCC 349], this Court took a
cautious approach while entertaining public interest litigations and held that
public interest litigation is a weapon, which has to be used with great care
and circumspection. The judiciary has to be extremely careful to see that no
ugly private malice, vested interest and/or seeking publicity lurks behind the beautiful
veil of public interest. It is to be used as an effective weapon in the armory
of law for delivering social justice to citizens. The attractive brand name of
public interest litigation should not be used for suspicious products of
mischief. In the case of Rajiv Ranjan Singh Lalan v. Union of India [(2006) 6
SCC 613], this Court reiterated the principle and even held that howsoever
genuine a case brought before a Court by a public interest litigant may be, the
Court has to decline its examination at the behest of a person who, in fact, is
not a public interest litigant and whose bona fides and credentials are in
doubt; no trust can be placed by the Court on a mala fide applicant in a public
interest litigation.
The Courts, while
exercising jurisdiction and deciding a public interest litigation, has to take
great care, primarily, for the reason that wide jurisdiction should not become a
source of abuse of process of law by disgruntled litigant. Such careful
exercise is also necessary to ensure that the litigation is genuine, not
motivated by extraneous considerations and imposes an obligation upon the
litigant to disclose true facts and approach the Court with clean hands. Thus,
it is imperative that the petitions, which are bona fide and in public interest
alone, be entertained in this category. Abuse of process of law is essentially
opposed to any public interest. One, who abuses the process of law, cannot be
said to serve any public interest, much less, a larger public interest. In the name
of the poor let the rich litigant not achieve their end of becoming richer by
instituting such set of petitions to ban such activities. Besides the fact that
the present petition lacks bona fides, it is also obvious that the petitioner
though had prayed for complete ban on all mining and manufacturing activities
but had hardly made any study or prepared statistical data in that regard. It
only made reference to certain studies in foreign countries. The petitioner,
claiming to be an organization involved in the good of the common man, ought to
have taken greater pains to state essential facts supported by documents in
relation to Indian environment.
26.
The
document referred to as Ex.P9 in paragraph 36 of the Writ Petition is probably
the only document which allegedly records the conditions of a few workmen in
India and contains the names of a few doctors and workers. This document is
neither signed by anybody nor does it give address of any workman or the industry/factory
where such workman is working. It is expected of the petitioner to have made
proper efforts in collection of such material before it moved this Court to
treat this problem at the national level and had spent its judicial time. All
the States in the country have been issued notices of this petition and they
have denied the allegations. It was incumbent upon the petitioner thus to at
least substantiate the averments in the petition by some cogent and documentary
evidence actually related to the working conditions of the workmen in various
factories in different States. In our view, the petitioner has miserably failed
to discharge this onus.
27.
The
conduct of the petitioner before the Gujarat High Court appears to be contemptuous
and certainly is an abuse of the process of the court in terms of the finding
recorded by that Court which has attained finality. That petition was
instituted at the behest of ESCL, while the present petition also does not
demonstrate that intention of the petitioner is to achieve public interest.
This Court in Raunaq International Ltd. v. I.V.R. Constructions Ltd. [(1999) 1
SCC 492] has clearly stated that public interest litigation should be bona fide
for public good and nor merely a cloak for attaining private ends. The Court
clearly enunciated the principle that previous record of public service of the
litigant can also be examined by the Court. To enable the Court to strike a
balance between two conflicting interests, it is important that public mischief
is prevented. It appears to have been moved again at the behest of the same
company and, in any case, to ultimately cause material and business gains to
that or such other companies. Thus, the present petition lacks bona fide, is an
abuse of the process of the Court and has been filed as a proxy litigation for the
purpose of achieving private interest. This Court cannot permit such practice
to prevail and it needs to be deterred at the very threshold.
28.
In
view of the preceding discussion in detail and its analysis, we perceive no
merit in this petition, as far as prayer of the petitioner for banning of
mining and manufacturing activities in asbestos or its allied products is
concerned. While rejecting that prayer, we dispose of this petition with the
above directions.
29.
Keeping
in view the conduct of the petitioner, particularly, B.K. Sharma, we hereby
issue notice to him as well as the petitioner to show cause why proceedings
under the Contempt of Courts Act,1971 be not initiated against them and/or in addition/alternative,
why exemplary cost be not imposed upon them. Further, we also call upon the
petitioner to show cause why the Registrar, Government of NCT, Delhi be not
directed to take action against them in accordance with law. IA No.9 of 2010 in
WP (C) No.260 of 2004 We find no reason to implead the applicant as a party respondent
in the present petition at this stage. The IA for impleadment is dismissed.
................................................CJI
[S.H. Kapadia]
.................................................J.
[K.S. Panicker Radhakrishnan]
.................................................J.
[Swatanter Kumar]
New
Delhi
January
21, 2011.
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