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Published: Fri, 02 Feb 2018
This case is commonly reffered to as taj trapezium case law
The Taj Mahal in Agra is one of the most beautiful monuments on the earth. It was built by the Mughal ruler Shah Jahan in memory of his deceased wife Mumtaz Mahal. It is built entirely of white marble and was declared as a UNESCO World Heritage Site in 1983. It attracts scores of tourists from all over the world. But now the monument has developed a yellowish tinge (and in some areas ugly brown and black spots) owing to the increased levels of pollution around the area. The main pollutant was sulphur dioxide released by the industries which later on reacted with rain water to give acid rain. Suspended Particulate Matter (SPM) was also one of the culprits. Thus, M.C Mehta, an attorney in the Supreme Court of India and an active environmentalist, filed a Writ Petition in 1984 mentioning the adverse effects of the industries and vehicles in the area on the Taj Mahal. He sought appropriate directions to be given to the concerned authorities to take immediate steps to stop air pollution in the area and save The Taj. This petition falls under Public Interest Litigation (PIL).
This case is commonly referred to as ‘Taj Trapezium Case’. The ‘Taj Trapezium Zone’ (TTZ) referred to by the court is a 10,400 sq.km trapezium-shaped area covering the five districts of the Agra region. The TTZ comprises over 40 protected monuments including three World Heritage Sites — the Taj Mahal, Agra Fort and Fatehpur Sikri.
The writ petition was accompanied by the report of the Expert Committee called “Report on Environmental Impact of Mathura Refinery” (Varadharajan Committee) published by the Government of India in 1978. The report pointed out the sources of pollution in the area – all coal users consisting of two Power Plants, a number of small industries mainly foundries (approximately 250) and a Railway Shunting Yard. The committee had also made some suggestions in the report. It had asked to ensure that no new large industries come up in the area without conducting appropriate detailed studies to access the environmental effect of such industries on the monument, the existing industries are shifted away from the area. It suggested creating an authority that monitors the pollution emission and air quality in Agra and has the power to direct polluting industries to lower their emission levels to the standards. The authority can have the powers to specify measures as are necessary to reduce the emission. The actions taken in this regard should be time-bound or speedy in nature. It also suggested that studies should be undertaken by competent agencies to explore the possibility the monument by measures such as creation of a green belt in and around the area. It also said that use of coal in the refinery power plant should be stopped till other cleaner technologies are available.
The Central Board for the Prevention and Control of Water Pollution, New Delhi, also published a report (Control of Urban Pollution Series CUPS/7/1981-82) under the title “Inventory and Assessment of Pollution Emission in and Around Agra-Mathura Region (Abridged)”. It categorized the industries in Agra and its outskirts into seven different categories. They gave some statistics about the pollution levels and they were quite high. And said that by closing down two thermal power stations and replacing coal by diesel in the railway yards sulphur dioxide emissions can be cut down by 50%.
The National Environment Engineering Research Institute (NEERI) gave “Over-view report” in 1990 implying that the pollution levels are quite high around The Taj and this was seriously deterioting The Taj as well as the ecosystem in the area.
M.C Mehta quoted that the Mathura Refinery which is located 40km north-west of Agra and the Ferozabad Glass Industry were distant sources of pollution. The other polluting industries as per the report of the Central Pollution Control Board were iron foundries, ferro-alloyed industries, rubber-processing, lime processing, engineering, chemical industry, brick factory and vehicles.
As a result of the petition, a series of orders were given from 1993 by the court. On 8th of January, 1993, the court directed the Uttar Pradesh Pollution Control Board to make a detailed list of all the industries and foundries active in the region and to make sure that pollution control measures are employed by the industries and foundries. The U.P Pollution Control Board filed an affidavit dated 3rd May, 1993 reporting its survey. It categorized the various industries and reported that there were total of 511 industries in the area. Notices were issued to all these industries regarding pollution control as per the orders of the court.
Although Mathura Oil Refinery was included in the above industries, the court decided to deal with it separately. The court then passed an order on 5th of May, 1993. The U.P Pollution Control Board was directed to again issue a notice (public) to the 511 industries within two weeks through two local and two national newspapers directing them to install pollution control devices if they had not already done so. The industries were required to reply within eight weeks from the date of publication of the notice. The Board was asked to inspect the industries, if they wished to, to check the truth in their replies and a report was to be submitted to the court by the Board. Out of the 511 industries, 212 did respond to the notice. The court ordered these industries to be shut down on 27th of August till necessary pollution control devices were installed.
NEERI submitted a report on October 16/18, 1993 regarding sulphur dioxide emission control measures at Mathura Refinery and suggested the use of natural gas, setting up of hydro cracking unit, improved sulphur recovery unit, chemo-biochemical sulphur recovery and the setting up of green belt around the Taj. It also suggested the shifting of polluting industries outside the TTZ. The report also examined in detail the decay mechanism and status of The Taj marble. It stated that the deterioration occurs in two modes. In the process crusts are formed. The crusts are formed due to sulphur dioxide, but the cumulative effects of all pollutants are more damaging. It was observed that trace metals present in fly ash and suspended particulate matter, e.g. manganese, iron and vanadium act as catalyst for oxidation of sulphur dioxide, and in turn enhance degradation of marble calcite to gypsum.
On 5th of November, 1993, advocate N.N. Goswami appearing on behalf of the Union of India was ordered to find out the possibility of providing gas as a fuel to the glass industries and the foundries around Agra by 26th of November,1993. The court also issued notices to the Ministry of Petroleum and Gas Authority of India (GAIL). GAIL replied that a detailed survey had to be done regarding assessment of demand and other technical requirements. GAIL was asked to coordinate their work with NEERI and U.P Pollution Control Board for this survey. NEERI in its report dated 19th December, 1993, gave a green signal to the feasibility of natural gas as fuel in the industries. Propane, LPG and nephtha were also suggested as alternate fuel. The U.P. State Industrial Development Corporation was ordered to look for sites outside the Taj Trapezium Zone where the industries could be shifted by 4th March, 1994 and GAIL was asked to mention the price of propane. The creation of a green belt in the area was also undertaken.
The Corporation stated that it had 220 acres (151 plots) of developed area in Kosi (Kotwa) for immediate allotment, 330 acres and 85 acres of undeveloped land in Salimpur (Aligarh district) and Etah respectively. All these places are outside Taj Trapezium Zone. Before any directions regarding the development of area or allotment of land to various industries, the court wanted to know the exact number of air polluting industries which are operating within the TTZ which are to be shifted outside the area. The U.P. State Pollution Control Board was to asked to prepare a list on the basis of their record and survey.
The court on 11thn of April, 1994 after hearing learned counsel for the parties, passed the order indicating that as a first phase, the industries situated in Agra be relocated out of TTZ.
All these decisions were taken on the basis of reports given by NEERI. So in interest of justice, the Ministry of Environment was asked to examine this aspect and appoint an expert authority (from India or abroad) to undertake the survey of the Taj Trapezium Environmental Area and make report regarding the source of pollution in the area and the measures to be adopted to control the same. The Ministry asked an expert committee under Dr. S. Varadharajan to do the job.
Meanwhile the Indian Oil Corporation also agreed to the use of natural gas as an alternate fuel. The report said that once natural gas is brought to Mathura there would be no difficulty in providing the same to the other industries in TTZ and outside TTZ. It was suggested that a 10 inch diameter, 13 km long pipeline could deliver the natural gas to the refinery as well as the other industries and was scheduled to be completed by December, 1996.
The Ministry of Environment & Forests, Government of India and the State of Uttar Pradesh were requested for their assistance in the relocation of industries. But there was no response from the Ministry of Environment and Forests and so the court disposed off the issues raised before it.
The court on 14th of March, 1996 directed the GAIL, Indian Oil Corporation and the U.P. State Industrial Development Corporation to indicate the industrial areas outside the TTZ which would be connected with the gas supply network. The court said that the industries which are not in a position to get gas connections or which are otherwise polluting may have to be relocated outside TTZ. GAIL was ordered to examine whether in the event if availability of more quantity of gas, the same can be supplied to industries outside the TTZ which are located in the vicinity from where the gas pipeline was passing.
According to the Uttar Pradesh Pollution Control Board, the levels of Suspended Particulate Matter (SPM), which is one the major pollutants causing discolouration of the Taj Mahal as well as respiratory problems in humans, had lowered between 1991-1994. The reason behind this was the closure of 212 coal based industrial units in 1993 and shifting out of a thermal power plant as per the order of the court. But again there has been a steady increase in the levels of SPM after 1994. It was pointed out that the emissions from the Mathura Oil Refinery, increase in the number of vehicles and the use of diesel based generators during power cuts (because of shifting out of the thermal power plant) was accountable for this increase.
Corruption was also one of the reasons. The Pollution Under Control (PUC) Certificate could be bought by the vehicle owners for mere Rs. 20 without taking the vehicle to the checking centre. But the problem of corruption was neither pointed out by the petitioner nor was dealt by the court in its orders.
GAIL filed an affidavit on 2nd of April, 1996, as per the directions of the court indicating that the pipeline construction will be completed within the scheduled time. The court said that some of the industries which are not in a position to get gas connections or which are otherwise polluting may have to be relocated outside the TTZ. GAIL advertised comparative prices and heat equivalent of various fuels in the newspapers circulated in Agra and Ferozabad to which 214 parties from Agra and 364 parties from Ferozabad had responded. The Collector, Agra as well as Collector, Ferozabad was asked to render all assistance to GAIL in acquiring land for setting up the two gate stations for the pipelines.
On 12th of September, 1996, the court passed the orders regarding the safety measures to be taken during the construction and operation of the gas net-work. The industries also informed the court that they are taking steps to approach GAIL for gas connections. The NEERI also submitted a technical report pertaining to “Issues Associated with Fuel Supply Alternatives for Industries in Agra-Mathura Region”.
The exact number of air polluting industries which were to be shifted was found out. Suggestions were also taken from the concerned industries. Although the Board had placed on record list of 510 industries which are responsible for air pollution but they confined this order only to 292 industries located and operating in Agra. The industries operating in TTZ which were given gas connections need not relocate. The whole purpose is to stop air pollution by banishing coke/coal from TTZ.
The final judgment in this case was given on 30th of December 1996 and the bench consisted of Justice Kuldip Singh and Justice Faizan Uddin. The court was of the view that The Taj Mahal is a masterpiece and has international reputation. It is also an important source of revenue to the country because of the huge tourist attraction it commanded. So, its beauty could not be compromised.
The court gave its orders based on the “Precautionary Principle” and “Polluter Pays Principle” as was defined in Vellore Citizens Welfare Forum v. Union of India. The court was of the view that “the precautionary principle” and “The polluter Pays” principle are essential features of “Sustainable Development”. The “Precautionary Principle” in the context of the municipal law – means: (i) Environmental measures – by the State Government and the statutory authorities – must anticipate, prevent and attack the causes of environmental degradation. (ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. (iii) The “Onus of proof” is on the actor or the developer/industrialist to show that his action is environmentally benign. “The Polluter Pays” principle has been held to be a sound principle by the court in Indian Council for Enviro-Legal Action vs. Union of India J.T. 1996 (2) 196. The Court ruled that “Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on.” The “Polluter Pays” principle as interpreted by this court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of “Sustainable Development” and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology. The precautionary principle and the polluter pays principle have been accepted as part of the law of the land. Article 21 of the Constitution of India guarantees protection of life and personal liberty.
Apart from the constitutional mandate to protect and improve the environment there are plenty of post independence legislations on the subject. The relevant enactments for the purpose are: The Water (prevention and Control of pollution) Act, 1974 (the Water Act), the Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the Environment protection Act, 1986 (the Environment Act).
292 were ordered to change-over to the natural gas as an industrial-fuel. The industries which were not in a position to obtain gas connections – for any reason – were ordered to stop functioning with the aid of coke/coal in the TTZ and relocate themselves as per the directions given by us hereunder.
The court ordered and directed as under: (1) The industries (292 listed above) shall approach/apply to the GAIL before February 15, 1997 for grant of industrial gas-connection. (2) The industries which are not in a position to obtain gas connections and also the industries which do not wish to obtain gas connections may approach/apply to the Corporation UPSIDC)/Government before February 28, 1997 for allotment of alternative plots in the industrial estates outside TTZ. (3) The GAIL shall take final decision in respect of all the applications for grant of gas connections by March 31, 1997 and communicate the allotment letters to the individual industries. (4) Those industries which neither apply for gas connection nor for alternative industrial plot shall stop functioning with the aid of coke/coal in the TTZ with effect from April 30, 1997. Supply of coke/coal to these industries shall be stopped forthwith. The District Magistrate and the Superintendent of Police shall have this order complied with. (5) The GAIL shall commence supply of gas to the industries by June 30, 1997. As soon as the gas supply to an industry commences, the supply of coke/coal to the said industry shall be stopped with immediate effect. (6) The Corporation/Government shall finally decide and allot alternative plots, before March 31, 1997, to the industries which are seeking relocation. (7) The relocating industries shall set up their respective units in the new industrial estates outside TTZ. The relocating industries shall not function and operate in TTZ beyond December 31, 1997. The closure by December 31, 1997 is unconditional and irrespective of the fact whether the new unit outside TTZ is completely set up or not. (8) The Deputy Commissioner, Agra and the Superintendent (Police), Agra shall effect the closure of all the industries on December 31, 1997 which are to be relocated by that date as directed by us.
(9) The U.P. State Government/Corporation shall render all assistance to the industries in the process of relocation. The allotment of plots, construction of factory buildings, etc. and issuance of any license/permissions, etc., shall be expedited and granted on priority basis. (10) In order to facilitate shifting of industries from TTZ, the State Government and all other authorities shall set up unified single agency consisting of all the departments concerned to act as a nodal agency to sort out all the problems of such industries. The single window facility shall be set up by the U.P.State Government within one month from today. The Registry shall communicate this direction separately to the Chief Secretary, Secretary (Industries) and Chairman/Managing director, UPSIDC along with a copy of this judgment. We make it clear that no further time shall be allowed to set up the single window facility. (11) The State Government shall frame a scheme for the use of the land which would become available on account of shifting/relocation of the industries before June 30, 1997. The State Government may seek guidance in this respect from the order of this Court dated May 10, 1996 in I.A. No. 22 in writ Petition (Civil) No. 4677 of 1985. (12) The shifting industries on the relocation in the new industrial estates shall be given incentives in terms of the provisions of the Agra Master Plan and also the incentives which are normally extended to new industries in new industrial estates. (13) The workmen employed in the above-mentioned 292 industries shall be entitled to the rights and benefits as indicated hereunder: (a) The workmen shall have continuity of employment at the new town and place where the industry is shifted. The terms and conditions of their employment shall not be altered to their detriment. (b) The period between the closure of the industry in Agra and its restart at the place of relocation shall be treated as active employment and the workmen shall be paid their full wages with continuity of service. (c) All those workmen who agree to shift with the industry shall be given one year’s wages as ‘shifting bonus’ to help them settle at the new location. The said bonus shall be paid before January 31, 1998. (d) The workmen employed in the industries who do not intend to relocate/obtain natural gas and opt for closure, shall be deemed to have been retrenched by May 31, 1997, provided they have been in continuous service (as defined in Section 25-B of the Industrial Disputes Act, 1947) for not less than one year in the industries concerned before the said date. They shall be paid compensation in terms of Section 25-F(b) of the Industrial Disputes Act. These workmen shall also be paid, in addition, six years’ wages as additional compensation. (e) The compensation payable to the workmen in terms of this judgment shall be paid by the management within two months of the retrenchment. (f) The gratuity amount payable to any workman shall be paid in addition. Before parting with this judgment, we may indicate that the industries in the TTZ other than 292 industries shall be dealt with separately. We direct the board to issue individual notices and also public notice to the remaining industries in the TTZ to apply for gas connection/relocation within one month of the notice by the Board. The Board shall issue notice within one month from today. The matter to come up for further monitoring in this respect before this Court on April 4, 1997.
We may also indicate that this Court by order dated May 10, 1996 has stopped the operation of all the brick kilns in the TTZ with effect from August 15, 1996. This court by order dated September 4, 1996 has directed that the fly-ash produced in the process of the functioning of thermal plants may be supplied to the brick kilns for the construction of bricks. This would be a useful step to eliminate the pollution caused by fly-ash. This Court is separately monitoring the following issues for controlling air pollution in TTZ: (a) The setting up of hydrocracker unit and various other devices by the Mathura Refinery. (b) The setting up of 50 bed hospital and two mobile dispensaries by the Mathura Refinery to provide medical aid to the people living in the surrounding areas (Court order dated August 7, 1996). (c) Construction of Agra bypass to divert all the traffic which passes through the city. Under directions of this Court, 24 kms’ stretch of the bypass shall be completed by the end of December 1996 (Court order dated April 10, 1996). (d) Additional amount of Rs. 99.54 crores sanctioned by the Planning Commission to be utilized by the State Government for the construction of electricity supply projects to ensure 100 per cent uninterrupted electricity t the TTZ. This is necessary to stop the operation of generating sets which are major source of air pollution i the TTZ (Court orders dated April 10, 1996, May 10, 1996, August 30, 1996, September 4, 1996 and September 10, 1996). (e) The construction of Gokul Barrage, water supply work of Gokul Barrage, roads around Gokul Barrage, Agra Barrage and water supply of Agra Barrage, have also been undertaken on a time schedule basis to supply drinking water to the residents of Agra and to bring life into river Yamuna which is next to the Taj (Court order dated May 10, 1996 and August 30, 1996.). (f) Green belt as recommended by NEERI has been set up around Taj. Pursuant to continuous monitoring of this Court, the Green Belt has become a reality. (g) This Court suggested to the Planning Commission by order dated September 4, 1996 to consider sanctioning separate allocation for the city of Agra and the creation of separate cell under the control of Central Government to safeguard and preserve the Taj, the city of Agra and other national heritage monuments in the TT. (h) All emporia and shops functioning Within the Taj premises have been directed to be closed. (i) Directions have been issued to the Government of India to decide the issue, pertaining to declaration of Agra as heritage city within two months.
As a result of the order the U.P. Government set up a Taj Trapezium Zone Pollution (Prevention and Control) Authority to work for the control of pollution in the area. It has its headquarters in Agra. The green belt started getting damaged later. There was an application seeking various directions pertaining to taking action against the authorities responsible for damaging and destroying the green belt within 500 metres of Taj Mahal, use of vehicles, generators or sound equipments within 500 metres etc. As a result of this order, presently there is no access into the green belt for the visitors. It was found that despite the presence of monitoring stations, the air quality had still not improved.
In this case the Supreme Court oversteps its jurisdiction; all the directions/orders given are functions of the executive.According to me the judgment was apt, but the different stake holders have not been able to implement the same in its entirety.
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