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IN THE HIGH COURT OF BOMBAY
H.H. Kantharia M.F. Saldanha, JJ.
Bayer (India) Limited and others.... Petitioner.
Versus
The State of Maharashtra and others.... Respondents.
Review Petition No. 1485 of 1991 in W.P. No. 4497 of 1990, decided on 29-6-1994.
Advocates appeared :
Navroz Seervai wih D.J. Khambatta and Shrikant Doijode i/b Crawford Bayley and Co., for petitioners.
K.K. Singhavi, Senior advocate, with P. Samdani, V.L. Desai, for respondents Nos. 20 to 111.
R.A. Dada, Senior advocate advocate., with V.M. Chaudhary, for respondent Nos. 119 and 129.
C.M. Korde, with Shyam Mehta, i/b Sankarsett and Vaidya., for respondents Nos. 19, 113, 120 and 121.
Mukul Telly, i/b S. Mohamedbhai Co., respondents 122 and 123.
Suhasini Mutalik, for intervener in Civil Application No. 2559 of 1993.
P.M. Pradhan, for respondent No. 1.
C.J. Sawant, Senior Counsel, with N.M. Zambre, A.G.P., for respondent No. 2.
M.C. Mehta, with Ms. Seema Midha, for Intervener in Civil Application No. 2550 of 1993.
H.U. Gor, for respondents Nos. 3 to 18.
S.J. Vazifdar, i/b. Crawford Bayley and Co., for applicant in C.A. No. 2014/ 1993 in R. P. No. 1485/1991.
Held, where the planning processes are left to the Government and to the public bodies, it is inherent that overriding considerations of public health and danger to life must be issues to which top priority consideration is bestowed. Where there is a failure in this regard, the Courts will have to step in, in exercise of the inherent powers vested in them and strike down or prohibit any action that offends these basic tenants. Nothing can he more fundamental than the issue of public safety and the right to life and where these are infringed upon, the Courts will have to act in the general interest of the citizens. Where a breach has occurred, either due to lethargy negligence or for other familier reasons, the role of the Courts becomes all the more important. The Court is conscious of the fact that it is not the function of the Courts to direct and advise the Planning Authorities or to substitute their decisions by judicial decisions in the last resort. Unfortunately where it is demonstrated that public authorities have acted in a manner, or permitted activity that endangers public health and human life, the Courts as of necessity, will have to take the exceptional step of remedying the mischief. No amount of technical pleas can justify a situation where a large number of people are permitted to reside in the close vicinity of industries dealing in hazardous chemicals and processes and under normal circumstances where such a situation has occurred, the Court would be justified in ordering demolition of the structures and removing the people residing in them in their own interest. One needs, however, to balance the equities in such instances and if it appears unduly harsh and unfair to order demolitions, a Court could still be justified in prohibiting any further new construction within a prescribed area.
There can be no absolute standards with regard to what constitutes a safe distance as of necessity, one is required to go by expert advice and past experience. The Court is also required to evaluate the possible danger in the event of an advance happening and balance it, on the other band, with the pressures that exist in areas where there is a shortage of accommodation. Taking all these considerations into account, a Court would prescribe what may judicially be categorised as a reasonably safe distance, within which, which it would be permissible to prohibit residential accommodation. In so doing, the issue as to whether the particular land comes within the residential zone or otherwise would be wholly irrelevant and for that matter the normal principles and rules that govern general situations would be wholly inapplicable. The situation in these cases is exceptional and it, therefore, requires consideration on special lines, even if the relevant Acts and rules do not make provision for that, as obviously they have not.
Section 114--Maharashtra Regional and Town Planning Act, 1966 - Sections 45 and 46-Review-Scope of.
Section 114 -Scope of.
Having regard to this situation, court have no hesitation in holding that the challenge of the respondents with regard to the restrictive scope of this proceeding is devoid of substance. The normal limitations in respect of a review petition would only bind down a Court in a case where the usual circumstances were present, namely, where an application for review is filed by one of the parties to the original proceedings on the ground that some vital material or some very basic aspect of law has escaped consideration. These restrictions would not be valid in the present case where the. Supreme Court has directed this Court to first consider whether the original decision requires a review and, if so, to thereafter adjudicate the controversy. Court do not see the propriety behind the respondents insistence that even if the original orders were to be modified or set aside that the petitioners basic challenge should be declined from that aspect and heard separately through a separate proceeding. The review petitioners have proceeded on the assumption that both stages of the matter would be considered one after the other and the respondents have filed their replies assumption and court have accordingly heard the entire matter on merits. Court do not slhscribe to the view that this Court would be exceeding its jurisdiction and that the scope is confined within the straight-jacket formula of a traditional review petition. The situation in law is quite familiar where several proceedings which are inter-linked or overlapping are heard by the Court in a group and similarly in this situation even if the petitioners had been pushed to the academic exercise of filing separate writ petitions in respect of the remaining heads of challenge, nothing would have prevented the Court from listing those petitions and hearing them together. The end result would have been one and the same with a considerable saving of judicial time.
Having regard to the fact that the present petitioners originally moved the Supreme Court and that it was after some hearings before that forum that the Supreme Court virtually remanded the mailer with certain directions, it is quite evident that even the Apex Court seriously felt that the judgment dated 8-11-1990 required reconsideration. Mr. Seervai on behalf of the petitioners contended in all seriousness that neither the petitioners nor the respondents had placed before the Division Bench on an earlier occasion the full facts relating to the present controversy. He alleged that this was deliberately done and in support of his contention, he pointed out to us that the petitioners had made it appear to the Division Bench that the planning authority, namely, the T M C had rejected their permission to develop certain plots merely because some representation from the petitioners companies was pending consideration before the Government Also it was projected that the authorities concerned had rejected the permission because the development plan was being reviewed. On the other hand, both the T M C and the State Government were unduly cryptic in their defence in so far as the pleadings as also the judgment of the Division Bench do indicate that the real gravity of the problem was not even indicated to the Court on that occasion, namely, that the present petitioners constitute an industry which falls in a very special category, namely, that they store and utilise hazardous chemicals in a very large volume and, furthermore, that those chemical could pass a serious threat to public health and safety and that they could also endanger life. After the sad experience of Bhopal, the petitioners themselves had insisted that the Government authorities should ban residential buildings in the near proximity of the companies in question and this was precisely the angle that was never brought to the knowledge of the Division Bench. As we shall presently illustrate, the fact that a large number of residential buildings have already come up in the area and that it was virtually turning into an urban high rise residential complex virtually surrounding and touching the six chemical units in question was again not highlighted before the Division Bench The original petitioners put forward their case as though it was a routine question of granting permission under the M R T Act and that the authorities had acted mala fide by rejecting the permission on unsustainable grounds and it must be stated that very unfortunately the respondents did nothing to indicate that the real complexion of the case had been totally suppressed from the Court. There is considerable substance in the charge that both the parties, the original petitioners on the one hand and the original respondents on the other are guilty of suppressing of vital and material aspects of this case which was why when it appeared like a routine run of the mill proceeding, the Division Bench disposed of the same at the admission stage itself, holding that the rejection order was improper. All that the Division Bench did was that it directed the respondents to re-examine the plains and pass appropriate orders before December 1990. The direction was unfortunately misconstrued by all the parties as meaning that the Division Bench had directed that orders in favour of the petitioners M/s Sonam Builders ought to be passed. This was not the case at all and, in our considered view, the authorities would have been full justified in still refusing permission on the ground that it was too dangerous to permit residential buildings, too in an industrial zone and, more importantly, in the immediate proximity of companies using hazardous chemicals. It is in these circumstances that court consider it absolutely essential to hold that the judgment and order dated 8-11-1990 as also the entire set of orders that came to be passed on the basis of the original judgment require to be set aside The Court purposes to issue at the end of this judgment certain directions that will hold good in this and all other cases relating to situations of this type. The Court does concede that normally it is the function exclusively of the planning authorities in the Municipal Corporations to ensure that residential areas and industrial areas as separated from each other. The whole essence of planning presupposes the a master plan will be drawn up for this purpose and while doing so that the concerned authorities will have the good sense to ensure that they do not permit people to live in the immediate vicinity of industries using toxic and dangerous chemicals that could do long-term damage to human being of all ages or even kill them outright. One does not require elaborate and specialised knowledge for this purpose, but plain commonsense and the recent experiences in different part of the world are sufficient basis.to hold that some reasonable distance must separate residential areas from the factories dealing in hazardous chemicals. This is all the more so important because our own Supreme Court in the Sriram case has occasion to lay down that a buffer zone fur a safety distance by way of a 1 km radius in the least all around was absolutely essential.
MAHARASHTRA REGIONAL AND TOWN PLANNING ACT, 1966.
Sections 45 & 46-Change in situation-Court has to consider that but no more additions or alterations in plans be permitted under any circumstances.
Sections 45, 46 & 154-Civil Procedure Code, 1934-Sections 9 and 114 - Hazardous industries-Provisions to shift to distant places-Whether affects pre-existing its?
Held A study of the properties and characteristics of the chemical"s that some of them are inflammable or explosive or all of them are very highly toxic. The danger to human health and to human life is very real. The quantities in which the chemicals are stored and used is also relatively large which is understandable, having regard to the volume and nature of the petitioners manufacturing activity.
It was contended at one stage by the respondents that it is unnecessary for the petitioners to store such larger quantities of these chemicals and having regard to the hazard factor that this should be curtailed. Mr. Seervai has pointed out to us that there are a number of factors to be taken into consideration including the aspect of availability transportation, continuous supply, etc. and that the petitioners themselves who are extremely conscious about the safety of its own employees and all other citizens have kept the storage quantities to the minimum.
On a perusal of this material that the chemicals in question are hazardous ones, that the hazardous effect is not and cannot be localized within the radius of the petitioners factories and that, therefore, there is valid justification for the recommendation of the experts both in this country and abroad that a minimum separation distance or a buffer zone is the only and correct solution. After very careful consideration of all these reports and recommendations, submissions of the parties and all relevant circumstances, the High Court held that separation distance/buffer zone must be 1 km from the outer boundary of the unit.
The Court is obliged to take into account the change of situation and all that has transpired since the date on which the original order was passed.
Reliefs granted at this point of time will have to be moulded to suit the situation and it is not fair and just to order demolition of any, of the structures or for that matter to revoke orders in respect of which structure-S have been completed or those that are under construction pursuant to permission that have been sanctioned and implemented prior the date of the stay orders. That is the most liberal manner in which the minimum hardship could be caused to persons who have invested in the flats in question.
The Court only needs to observe that the facts of this case are materially different to the usual run of the mill cases. This case deals with an extraordinary situation whereas everyone of the decisions referred to by learned counsel on both sides in this proceeding is distinguishable to the extent that in none of the cases in question were aspects of human safety and danger to life of paramount consideration,
These aspects are basic and fundamental and a Government or a planning authority would be more than fully justified in withholding building permission on these grounds. We do not see any difficulty whatsoever in concluding that the facts of this case are so gross that the authorities would have been fully justified in rejecting the permission on these grounds.
The grounds on which the objections are based are serious enough to categorise this case as being virtually a question of life and death. The safety of the live of the residents of the buildings in the vicinity of the units is the factor of paramount importance and in our view all other considerations must be subservient to this factor.
The danger in this case is real and not illusory and, therefore, the Government and the T M C would have been fully justified in withholding or refusing building permission upto a safe distance from the units in question. When a representation of this gravity has been made, it requires consideration and it is (Only because of the nature of the representation and the material on which it is based that we hold that the refusal of permission for a reasonable time while the representation was under consideration on these special facts would have been fully justified.
These provisions apply at the stage at which permissions are asked for. The situation before us is exactly the opposite. The review petitioners were the first in point of time to occupy those areas and on a careful examination of the plots in question, we do find that adequate land has been acquired by each of the review petitioners and it also d0es appear that all the requisite setback-requirements have been more than adequately complied with. Admittedly, the adjoining areas at that point of time were completely vacant.
It is in the last decade and a little more than that, that the issue regarding actual danger from hazardous industries has not only surfaced bye placed with almost volcanic proportions. In such a situation, it is virtually the reverse position that applies in so far as when the question of locating new residential buildings in relation to pre-existing hazardous industries comes up, the applicablity of the Development Control Rule, or the building bye-law would not be relevant vis-a-vis the pre.exi5ting industries because admittedly those already there cannot be physically shifted from where they are.
In such situations, it is inevitable that the safety margin or the buffer zone must first be demarcated and residential user be permitted only outside that area. The principles in unciated by Mr Dada could certainly be taken into consideration prospectively and, must be taken serious note of, but they would not be applicable in the facts of the present case.
The units in question arc not personal or proprietary businesses or small-scale units, but are large industrial undertakings, shifting of which is hardly feasible. As of necessity, these chemical and pharmaceutical units have to be within the close proximity of areas where the entire infrustructure is available and cannot be located at some isolated spot. They had already moved far enough from the city of Bombay and having regard to the population densities in this country, it would hardly be possible to find any other isolated areas.
The consequence of thousands of persons being rendered jobless, if the industries were to move, is a consideration of much seriousness, particularly in view of the present level of unemployment. Even though the plane would be well-advised, having regard to the experience in the last two decades, to make adequate provision while locating hazardous industries of this type in the future that the best in the present situation would be to at least maintain a safety distance around the existing ones.
M.F. SALDANHA, J.:—After Bhopal and Chernobyl, is it to be the turn of Thane for another man-made disaster of unprecedented dimensions? History is supposed to forewarn and it is said that we are required to learn from our mistakes of the past. What began with the industrial revolution and was politely referred to in economic terms as development has, over the decades and centuries, grown into the setting up of gigantic enterprises which cater to the life-style and requirements of progressing society. While, on the one hand, manufacturing processes necessarily involve the storage and use of products which in themselves can often be categorised as dangerous, many of the processes themselves are required to be conducted under systems of extreme safety. It was realised all the more after the Bhopal tragedy that even the manufacture of pesticides, which have their own use, could, in the event of an accident or leakage, kill a sizable portion of the population in the vicinity of such a plant. The accent in the last decade at least has been focussed more and more towards the preventive aspect which in the simplest of the terms envisages that the danger to health and human life should be minimised to the maximum extent. It is for this purpose that stringent regulations are required to be promulgated with regard to the transport, storage, handling and user of hazardous chemicals, gasses and processes. For obvious reasons, these cannot be completely isolated from towns, cities and areas of human habitation.
2. As a starter, however, prudence and the rules of abundant caution indicate that such units and processes should, as far as possible, be located in places other than where people normally live. This apart, since in a country such as this one, where there are pressures of land and where the density of the population is relatively large, it is very necessary to prescribe and provide for a safety margin within which no residence or human habitation should be permitted. Undoubtedly, the first requirement is to ensure that the transport and process at all stages are conducted under conditions that ensure maximum safety and thereby avoid accidents, leakags, explosions and the like. Experience has unfortunately indicated that even in the best of the situations with far more sophisticated safety and alarm systems that accidents have still occured. The possibility of this happening in the Indian set-up is slightly higher. Incidents are plentiful even if one were to come down to the State of Maharashtra and the city of Bombay and its vicinity, where hazardous chemicals have caused havoc as a result of negligence or accident and the potential danger is what is to be regarded as the real threat.
3. Where human habitation is permitted in proximity of units dealing with hazardous chemicals and processes, there is an immediate two-fold danger; the first being the exposure to health hazards which would have its own long-term deadly effects and the second being the danger to life which is something irreplaceable. Both these aspects are crucial and are of equal concern and we do think that it is of fundamental necessity that the Planning Authorities, the Government and the Public bodies, who are entrusted with the task of deciding on the location of residential areas, must be alive to these very real and basic necessities at all times. These are the issues on which there can be no compromise, nor can there be any leniency.
4. In our considered view and in the present setup, where the planning processes are left to the Government and to the public bodies, it is inherent that overriding considerations of public health and danger to life must be issues to which top priority consideration is bestowed. Where there is a failure in this regard, the courts will have to step in, in exercise of the inherent powers vested in them and strike down or prohibit any action that offends these basic tenents. Nothing can be more fundamental than the issue of publ
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