Enterprises engaged in hazardous activities have an absolute duty to ensure safety and compensate for harm caused by their activities. Constitutional and statutory provisions protect the right to a pollution-free environment, and enterprises must comply with the highest standards of safety.

This Original Petition is filed for the issuance of a writ of mandamus or other appropriate direction commanding the respondents to close down the fifth respondent cashew processing factory as according to the petitioner it creates pollution. According to the petitioner he is a very old aged, Chronic Asthma patient and he is living within 200 meters of the factory. It is also contended that no licence as contemplated under the Kerala Panchyat (Licensing of Dangerous and Offensive Trades and Factories) Rules 1963 was obtained before starting the factory as can be seen from Ext. P. 2. Rule 3 of the Rules enjoins power of the Government to specify in schedule I of these rules the purpose and in their opinion are likely to be offensive or dangerous to human life or health or property. Item 16 in the schedule reads :

"16. Cashew nuts : Storing, Packing, Preparing or Manufacturing by any process whatever."

Rule 12 deals with the application to be made for construction, establishment or installation of factory workshop or work place in which steam or other power is to be employed. Sub-rule 12 (1) deals as to how the application is to be made. Sub-rule 2 deals with the matters to be produced along with the application and sub-rule (3) states that within 60 days of the receipt of such application the Panchayat shall either grant or refuse the same and sub-rule (4) deals with the matters to be considered in the event of the licence is to be granted. If those parameters are looked into, licence could not have been granted even if applied for.

2. It was submitted by the petitioner that the black smoke omitted from the factory increases his asthma and it affects the health of all the people in the locality. It is also stated that the entire area is covered by thick black smoke and the pungent smell of cashew make it impossible for any resident in the locality to venture out of the confines of their house. The toxic effect of the smoke emitted from the chimney is highly injurious to human health. The petitioner through out the day keeps his doors and shutters closed not only due to the acrid smell but also to avoid soot depositing in the rooms.

3. According to the petitioner, in spite of his repeated representations no action is taken by respondents 1 to 4. The factory continues to operate violating the provisions of Environment Protection Act 1986. In view of their inaction it was prayed that this Court should issue a writ of mandamus directing the authorities to do their statutory duties to direct the respondents to conduct detailed inspection and investigation and to close down the factory if the functioning of the factory causes pollution of the atmosphere violating the statutory provisions.

4. No counter affidavit is filed by the first respondent to the allegations made in the original petition. This Court directed the fourth respondent to carry out an inspection to verify whether the allegations are correct.

5. In Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715 which is known as Tenneries case it was observed by the Supreme Court as follows : (Para 13)

"In view of the above mentioned constitutional and statutory provisions we have no hesitation in holding that the precautionary principle and the polluter pays principle are part of the environmental law of the country."

The Supreme Court further observed that: (Para 15)

"The Constitutional and statutory provisions protect a persons right to fresh air, clean water and pollution free environment, but the source of the right is the inalienable common law right of clean environment."

In paragraph 16 Supreme Court observed as follows :

"Our legal system having been founded on the British Common Law the right of a person to pollution free environment is a part of the basic jurisprudence of the land."

6. In Oleum Gas Leak case (M. C. Mehta v. Union of India, (1987) 1 SCC 395 : (AIR 1987 SC 1086)) the Apex Court observed as foll