Industrial activity in a residential locality: balance between nuisance and environment.

Krishna Gopal v. State of M.P., 1986 Cr.L.J. 396 (M.P.)

The proceedings in this case were begun by the lodging of a complaint before the District Magistrate, Indore, alleging that a factory for the manufacture of glucose saline was being run by M/s Caplic in Manoramaganj, which was a residential locality, and that this factory used a boiler which was the cause of loud noise, spraying of water and acids into the neighbouring houses, and a large amount of ash being emitted into the atmosphere, and therefore causing public nuisance. A report was called for from the police station concerned, and on the basis of that report, a show cause notice was issued to Krishna Gopal, the owner of the house.

The petitioner replied that he had obtained a NOC from the Joint Director, Town and Country Planning, who was the appropriate authority in this case. The municipal corporation had also permitted the running of a factory in a residential locality. The petitioner also denied all allegations made by the complainant of public nuisance being caused. He also argued that nuisance caused to just one person in the locality would not amount to public nuisance.

The Court rejected the argument of the petitioner that public nuisance could not be alleged when only one person had filed the complaint. It said that it was not the intent of the law that the community as a whole or a large number of persons have to come forward to protest against a nuisance. It recognised the wide nature of the powers granted to the Magistrate in S.133 of the Cr.P.C., which empowers the magistrate to take action for the removal or regularisation of a public nuisance. Since the actions complained of in this case clearly come within S.133 (1)(b), which defines the conditions in which this power may be exercised, the Court confirmed the order of the SDM.

The Court also issued a severe reprimand to the authorities for allowing a factory to be run in a residential area, and for their apathy in not removing the nuisance from the locality even after the period within which 'K' had sworn to remove the factory from the area had expired.

The Court made a number of observations about the deleterious effects of air and noise pollution and the role of town planning authorities in protecting citizens from the same.

In this case the Court has recognised the air pollution which would widely affect the society at large but at the same time the society is sensitive towards these issues. The court held that though pollutants discharged from the "chimney" knows no frontiers of localities and very often they lead to damage not only to locating or the particular area when pollution originates but also to the neighbouring localities and adjacent areas. Breathing itself becomes a problem in cases of air pollution and the PCB officers are entrusted with the task of abating air pollution in residential localities. Further the court held that unfortunately wilful and knowing violations of laws resulting in air pollution caused by auto exhaust radiation and gas pipe line safety standards are not considered crimes under the relevant statutes even if lives are lost as a result. The environmental crimes dwarf other crimes to safety and property but the position of law as it stands in the matter of sentencing such environmental crimes is rather comfortable.

Further the court held that a vagrant committing a petty theft is punished for years of imprisonment while a billion dollar price fixing Executive or a Partner comfortably escapes the consequences of his environmental crime.

The society is shocked when a single murder takes place but air, water and atmosphere pollution is merely read as a news without slightest purturbane till people take ill, go blind or die in distress on account of pollutants that to resulting in the filling of pockets of a few.

Further the Court has also recognised the noise pollution from Motor Vehicles. It has been held by the Court that auto exhaust is a great cause of environmental pollution. The automobile emissions alone account for 70% of Carbon monoxide, 50% of hydro carbons, 35% of particulars and oxides of nitrogen in the atmosphere but the air pollution in the environment caused by industrial emissions is yet another contributor. If environmental pollution is to be extirpated firstly it should not be permitted, must be prevented and if at all it takes place should be sternly dealt with.

The court has stressed the need of the provision in the existing law which makes the pollution a serious offence and the need of rigorous punishment for environmental pollution.

Municipal Corporation extending residential layouts encroaching areas which were originally designated only for industrial activity.

F.B. Taraporawala v. Bayer India Ltd., (1996) 6 SCC 58.

Environment Protection Act, 1986;

Constitution of India.

Bayer India Ltd. and some other industries approached the High Court of Bombay by a writ petition and raised the matter alleging that the Municipal Corporation, Bombay, having granted permission for construction of residential complexes within an area clearly demarcated as an area reserved for industrial use in the sanctioned plan. The High Court asked the Corporation to re-examine the sanction. However, the petitioners appealed to the Supreme Court, which ordered a review petition to be heard. The High Court in review ordered stoppage of all further construction and a stay on all modifications of existing constructions within that zone. This order is challenged in the present appeal.

The appellants contended that the restrictions caused injustice to the residents of the locality by giving the industrialists a prohibition of construction in a 1-km radius zone in a crowded place like Thane. The appellants argued that this adversely affected the right to reside in that locality, at the same time leaving those who were already resident in that zone exposed to the risk of a leakage from the Chemical Factory. The alternatives before the Court were either to let the industrialists safeguard their interests in such a case by obtaining ownership of the area in question or to shift their factories to such places where the residential area could be kept wide apart from the factory premises. The respondents were not open to either of these proposals because of the huge financial and logistical burden involved.

The Court decided that asking the industrialists to acquire ownership of the area was indeed unreasonable. The Court itself felt that it had neither the expertise nor the information required to make a decision on the question of relocation. It therefore directed the Central Government to constitute an authority under S.3(3) of the EPA, 1986, within one month, which would examine this question. The philosophy of the Act and the objectives of the authority were not discussed by the Court. It however, made a reference to the concept of sustainable development call upon one and all to see the need for a balance to be struck between development and its sustenance in the future.

The Court ordered the Municipal Corporation to proceed with the plans submitted by the appellants and to allow the sanction based on the new bye-laws even for those that had already been sanctioned under the old ones but on which construction had not started.

The Court found it very difficult to give the relief as a result of growth of cities, where the restrictions for reserving certain areas as residential areas and some areas as residential areas and some areas as industrial areas is practically not possible.

The Court held that industrial growth, yes, but by exposing a large segment of society to the risk of losing lives, no. This apprehension is not imaginary. Bhopal Disaster brought to the knowledge of all of what happened there more than a decade ago, industrialists engaged in production of chemicals started thinking of taking precautionary land protective measures to see that if worst were to befall, how could their financial liability be taken care of.

The Court held that, the concept of "sustainable development", whose salient points have been noted in Vellore citizens' Welfare Forum v. Union of India (1996) 5 Sec 647, has called upon one and all to see the maintenance of balance between development and its sustenance in future.

Further the Court held that this the problem involved in the present case has more serious consequences and which touches the core of Art. 21 of the constitution in as much as the very lives of the inhabitants living around the factories in question are in great jeopardy so much so that any probable accident in the factories may see annihilation of a large number of inhabitants. The Court held that the question of relocation of industries is a matter which requires a deeper probe and hence directed to constitute on authority under Sec. 3(3) of the EPA by the Central Government.