Case BriefsHigh Courts

Bombay High Court: The Division Bench of Pradeep Nandrajog, CJ and Bharati Dangre, J. while hearing a writ petition concerning the health hazards being faced by the residents of Mahul and Amabapada, the bench held that,

“No family required to be rehabilitated as a consequence of slum clearance would be shifted to the PAP (Project affected Persons) colonies in Mahul or Ambapada and those who have been rehabilitated at the said two colonies under the slum rehabilitation schemes would be offered accommodation elsewhere”

Facts to be noted

Mahul and Amabapada are home to only a few local fishing communities and thick mangrove forests. State-owned refineries were established in the 1950s at Mahul with a view to gainfully make use of these lands with a negligible population.

Nine major industrial units exist at Mahul including refineries of Hindustan Petroleum Corporation Limited (HPCL), Bharat Petroleum Corporation Limited (BPCL), Rashtriya Chemicals and Fertilizers Limited, Bhabha Atomic Research Centre (BARC) as well as private industrial units such as Tata Power Thermal Power Plant, Sealord Containers and Aegis Logistics.

Petitioner challenged allotment of tenements reserved for Project Affected Persons (PAP) to them in a PAP colony by the name of Eversmile Layout, developed by a private builder named Dynamix reality in Mahul, Chembur. Present petitioners were declared to be PAPs due to the Tansa Pipeline Project which resulted in dwelling unit/slum located within 10 meters of Tansa Pipeline in Mumbai being demolished.

The land on which Eversmile colony is located was originally demarcated to be a No-Development Zone in the Draft Development Plan of 1984. State Government had acquired all such lands on account of being surplus. Further, it was said to be exempt under Section 20 of the Urban Land Ceiling Act, 1976 by State Government for the purpose of constructing residential quarters for the staff of BPCL.

Though in respect to the above, BPCL chose not to construct its staff quarters on the site where the PAP colony presently lies, eventually resulting in State Government modifying its order of exemption under Section 20 of Urban Land Ceiling Act to be for the rehabilitation of Slum dwellers and PAPs, at the request of Slum Rehabilitation Department and developer of PAP colony.

Supreme Court and this Court have passed orders, at the behest of refineries of the region, estopping the development of private residential buildings in the industrial belt.

Eversmile Colony posits three issues that render the Colony uninhabitable

  • Proximity of the refineries to PAP colony has resulted in those petitioners who have been rehabilitated to the colony to suffer from severe health issues due to their exposure to high levels of carcinogenic air pollution
  • Presence of residential premises in such close proximity poses a threat to the security of the industries and refineries, as well as to the safety of the residents themselves.
  • PAP colony is bereft of hygienic conditions and basic amenities, including schools and medical centres.

In Charudatt Pandurang Koli v. Sea Lord, OA No. 40 of 2014, it was held that,

National Green Tribunal held that there is a perceptible threat to the health of the residents of villages Mahul and Ambapada due to prevailing air quality in the area. Sealord Containers along with BPCL and HPCL refineries were identified by the National Green Tribunal to be the primary pollutants in Mahul, Chembur.

NGT observed that the respiratory morbidity and study of the health of the residents of Mahul region done by KEM hospital shows that a majority of the residents showed acute syndrome of breathing difficulties, severe lung-related issues, dry coughs, eye and skin irritation, chronic fatigue and weakness.

Presence of VOCs (Volatile Organic Compounds)

Further, it is evident from the above judgment that the presence of VOCs (Volatile Organic Compounds) in Mahul is what makes the air pollution in the region particularly harmful for human health.

Supreme Court had also held that the judgment of the NGT attained finality and therefore is beyond the purview of being challenged in judicial proceedings, also on perusal of the reports of Maharashtra Pollution Control Board (MPCB), Central Pollution Control Board (CPCB) and NEERI shows that air pollution in Mahul continues to be disturbingly high and to this day, still poses a threat to human life.

On analysing the data of the report by NEERI submitted during the NGT proceedings also recorded the alarming levels of air pollution in Mahul.  The said report also recorded the known impacts of VOCs on the health of individuals and notes that VOCs are known carcinogens and also records the symptoms and diseases afflicting people to exposed VOCs.

Thus, as per the reports of the various environmental agencies of the government, it is an admitted position that air pollution in Mahul, specifically in terms of the presence of VOCs is far higher than the permissible standards.

Report prepared by the IIT Bombay Experts

The report shows that the above-discussed health hazard is still present amongst the residents of Mahul. IIT recorded the prevalence of serious diseases such, as inter alia tuberculosis and cancer amongst the PAPs residing in Mahul.

Important observation

On observing the detailed report of IIT it looked self explanatory portraying an irrefutable picture of the fate of those persons being compelled to live in Mahul against their will, not merely in terms of their health, but also the domino effect of their poor health on their ability to live a dignified life as self sufficient, productive members of society.

By relying on the Supreme Court case of Oswal Agro Mills Ltd. v. Hindustan Petroleum Corporation Ltd., it was observed that residential premises in the vicinity of such refineries can pose multi-faceted security risks. The risks were not just limited to the health of the residents, but a terrorist attack using these refineries as targets could lead to colossal destruction within the city.

In respect to the security concerns, State Government and Municipal Corporation had planned to allot 2000 police officers and constable’s homes in the Eversmile Complex. However, to this day not a single police officer has been ready to accept the homes allotted to them in Eversmile Complex due to the fact that they share the same concerns about safety and the exposure to the air pollution in the region.

Hence, it is apparent from the above state observations and the reports of MPCB, CPCB, NEERI and IIT that Mahul continues to be a dangerously polluted region.

According to the recommendations made by the IIT report, along with this Court orders, PAPs residing in Mahul will have to be shifted out of the colony, and further allotments of tenements in the Eversmile Colony should not be made to PAPs and slum dwellers.

High Court also stated that it is settled law that the International Covenant on Economy Social and Cultural Rights is binding upon the Government of India, as it is a multi-party treaty, ratified by India in 1976. Consequently, the obligations under the said covenant are enforceable in India.

In above terms, WP No. 14102 of 2018 is disposed of by declaring that NGT does not freeze the issue at the point of time when the judgment was passed and this would mean that air quality needed to be monitored constantly and if no improvement was found, suitable directions need to be issued keeping in view the prevalent air condition monitored over a period of 4 years.

In regard to WP (L) No. 874 of 2018 and WP (L) No. 3314 of 2017, no family to be rehabilitated to Mahul or Ambapada and the ones who are already accommodated at the said places should be offered some other accommodation and until then to be paid Rs 15,000 per month as rent along with security deposit of Rs 45,000.

The court directed compliance of order within a period of 12 weeks. [State of Maharashtra v. Charudutta Pandurang Koli, 2019 SCC OnLine Bom 1993, decided on 23-09-2019]

Case BriefsSupreme Court

Supreme Court: Considering the necessity to give precedence to the health of the people in Delhi and in the NCR over any commercial or other interest, the bench of Madan B Lokur and Deepak Gupta, JJ issued elaborate directions and  said that keeping in mind the adverse effects of air pollution, the human right to breathe clean air and the human right to health, the Central  Government and other authorities should consider encouraging display fireworks through community participation rather than individual bursting of fireworks.

The directions issued by the Court are as follows:

  • The concerned police authorities and the District Magistrates will ensure that fireworks are not burst in silence zones that is, an area at least 100 meters away from hospitals, nursing homes, primary and district health-care centres, educational institutions, courts, religious places or any other area that may be declared as a silence zone by the concerned authorities.
  • The Delhi Police is directed to reduce the grant of temporary licences by about 50% of the number of licences granted in 2016. The number of temporary licences should be capped at 500.
  • The Union of India will update and revise and ensure strict compliance with the Notification dated 27th January, 1992 regarding the ban on import of fireworks.
  • The Department of Education of the Government of NCT of Delhi and the corresponding Department in other States in the NCR shall immediately formulate a plan of action, in not more than 15 days, to reach out to children in all the schools through the school staff, volunteers and NGOs to sensitize and educate school children on the health hazards and ill-effects of breathing polluted air, including air that is polluted due to fireworks. School children should be encouraged to reduce, if not eliminate, the bursting of fireworks as a part of any festivities.
  • Fireworks containing aluminium, sulphur, potassium and barium may be sold in Delhi and in the NCR, provided the composition already approved by Petroleum and Explosives Safety Organization (PESO) is maintained. However, the use of compounds of antimony, lithium, mercury, arsenic and lead in the manufacture of fireworks as well as the use of strontium chromate in the manufacture of fireworks is prohibited.
  • 50,00,000 kg of fireworks is far more than enough for Dussehra and Diwali in 2017, hence, transport of fireworks into Delhi and the NCR from outside the region is prohibited and the concerned law enforcement authorities will ensure that there is no further entry of fireworks into Delhi and the NCR till further orders. The permanent licensees are at liberty to take measures to transport the stocks outside Delhi and the NCR.
  • The suspension of permanent licences as directed by the order dated 11th November, 2016 is lifted for the time being. However, the suspension might be reviewed after Diwali depending on the ambient air quality post Diwali.
  • Research study must be jointly carried out by the Central Pollution Control Board (CPCB) and the Fireworks Development Research Centre (FDRC) laying down appropriate standards for ambient air quality in relation to the bursting of fireworks and the release of their constituents in the air. Also, a research study needs to be conducted on the impact of bursting fireworks during Dussehra and Diwali on the health of the people.

The Court appointed a Committee to be chaired by the Chairperson of the CPCB and consisting of officers at the appropriate level from the National Physical Laboratory, Delhi, the Defence Institute of Physiology and Allied Sciences, Timarpur, Delhi, the Indian Institute of Technology-Kanpur, scientists from the State Pollution Control Boards, the Fire Development and Research Centre, Sivakasi and Nagpur and the National Environment Engineering Research Institute (NEERI) nominated by the Chairperson of the CPCB to submit a report in this regard preferably on or before 31st December, 2017. [Arjun Gopal v. Union of India, 2017 SCC OnLine SC 1071, decided on 12.09.2017]

 

Case BriefsSupreme Court

Supreme Court: Stating that the sale and registration and therefore the commercial interests of manufacturers and dealers of such vehicles that do not meet the Bharat Stage-IV (BS-IV) emission standards as on 1st April, 2017 does not take primacy over the health hazard due to increased air pollution of millions of our country men and women, the Court directed that  on and from 1st April, 2017 such vehicles that are not BS-IV compliant shall not be sold or registered in India by any manufacturer or dealer, that is to say that such vehicles whether two wheeler, three wheeler, four wheeler or commercial vehicles will not be sold in India by any manufacturer or dealer on and from 1st April, 2017.

With regard to the sale and registration of the existing stock of such vehicles that comply with BS-III emission standards, the manufacturers contended that they are entitled to manufacture such vehicles till 31st March, 2017 and in so doing, they have not violated any prohibition or any law. Hence, the sale and registration of such vehicles on and from 1st April, 2017 ought not to be prohibited and that they may be given reasonable time to dispose of the existing stock of such vehicles. On the other hand, the learned Amicus contended that permitting such vehicles to be sold or registered on or after 1st April, 2017 would constitute a health hazard to millions of our country men and women by adding to the air pollution levels in the country, which are already quite alarming.

Accepting the contention of the Amicus, the bench of Madan B. Lokur and Deepak Gupta, JJ said that the number of such vehicles may be small compared to the overall number of vehicles in the country but the health of the people is far, far more important than the commercial interests of the manufacturers or the loss that they are likely to suffer in respect of the so-called small number of such vehicles. The Court also said that the manufacturers of such vehicles were fully aware that eventually from 1st April, 2017 they would be required to manufacture only BS-IV compliant vehicles but for reasons that are not clear, they chose to sit back and declined to take sufficient pro-active steps. [M.C. Mehta v. Union of India, 2017 SCC OnLine SC 291, order dated 29.03.2017]