K. Sukumaran, J.
1. This is an environmental action. Society for Clean Environment, Bombay and its Secretary are the petitioners. On the array of the respondents is the Union of India-respondent No. 1. The State of Maharashtra is respondent No. 5; and the primary statutory body entrusted with the protection of the environmental rights of the ordinary citizens---the Maharashtra Pollution Control Board (hereinafter referred to as 'the Board') is respondent No. 6. The industrial units of the Tatas referred to as Tata Electric Company (T.K.C.), figure as respondent Nos. 2 to 4.
2. Tatas had already four Units generating electricity, the first three of 62.5 MW each aggregate and the fourth one of 150 MW. The fifth unit with a capacity of 500 MW was commissioned later. The details are as follows:
Particulars of T.K.C. Units at Trombay.
Unit Capacity Year Fuels use Fuel
No. MW capability. presently
Commissioned. used
1. 62.5 1956 Gas/Oil Gas
2. 62.5 1956 Gas/Oil Gas
3. 62.5 1960 Gas/Oil/Coal Gas
4. 150.0 1965 Gas/Oil/Coal Gas
5. 500 1984 Gas/Oil/Coal Gas/Oil/Coal
(retried to maximum of 1972 Tons per day)
6. 500 1990 Gas/Oil Gas/Oil
CTCCP 180 under Gas
construction
The old units have become, understandably, somewhat obsolescent. Tatas sought setting up of a new plant, plant No. 6. In the post-Stockholm era of environmental enlightenment, environmental clearance for such a unit is not easily got, when enthusiastic environmental groups are active around. Clearance was, however, ultimately obtained for commissioning of the new unit, unit No. 6, by communication dated 3-11-1986 (Ext. D).
3. The location of the unit was Trombay/Chembur area. The Government of India emphasised the fact that the area was one where 'no more polluting units be located' as it had already reached a critical level. It reiterated that the second unit of 500 MW at Trombay had been approved with the condition that a non-polluting fuel way to be used. Condition Nos. 1 to 3 as contained that communication may be extracted:
i) Both units 5 & 6 should be operated only with non-polluting fuel such as gas/LSHS so as to avoid adverse environmental effects.
ii) Units 1, 2 & 3 would be scrapped as committed to earlier. The land released could be utilised for green cover.
iii) Unit No. 4 will be relegated to stand-duty to be operated only when gas is available, for peaking purposes.
4. A writ petition 3433 of 1986 was filed challenging that the approval so granted for a new unit to be established. On 18-12-1986, a learned Judge of this Court passes an order dismissing the application for interim injunction.
5. In March 1990, Unit No. 6 commissioned.
Tatas sought establishment of a new unit, Unit No. 7 at Bombay some time thereafter. Ultimately on 20-2-1991, clearance was given by Ext. H communication dated 28-2-1991 to set up Unit No. 7. The petitioners have then, almost as a last resort, approached this Court under Article 226 of the Constitution with a substantial prayer for quashing Ext. H and with other incidental reliefs.
6. The petition came up for consideration by the Court on 20-10-1991. The intermediate proceedings need not be dealt with in detail. The parties filed their respective Counter-affidavits. The Tata concerns presented their stand with elaborate materials and supportive data. The returns filed by the union of India, the State of Maharashtra, and the Pollution Board, were some what sketchy and cryptic. They did not measure up to the expectation of a constitutional Court obliged to consider delicate and difficult environmental issues. In particular, the affidavit of the Pollution Board disclosed an unclear mind and a wavering attitude. The Court had necessarily to indicate its unhappiness when helpful information was not forth coming in needed profusion from a primarily responsible organisation. The subsequent developments and events as revealed from the affidavits of the parties in the case, also prompted the Court to issue a specific direction to the Pollution Control Board, to have an evaluation of the entirety of the situation afresh, by convening meaningful meetings of the Board. That direction was duly complied with. An affidavit referring to the decision taken at the meeting, and indicating in clearer and more categoric terms its stand, has now been filed.
7. Elaborate arguments in the light of adequate materials now available. Have been addressed before us. We have set out earlier, the observations contained in the communication of the Government of India, Ext. D dated 3-11-1986 about the precarious position of the environment in area. Even at the later stage, when fresh materials and studies were available, there was realisation on the part of the Government of India itself about the deteriorating situation, which necessitated the incorporation of a specific and clear condition, '...the company should see that the ambient air quality conditions are not disturbed due to running of units 1, 2 and 3 and the ambient parameters should be within the limit, prescribed by M.P.C.B.'
8. On behalf of the Tatas group, an over ambitious contention, was advanced; that the condition was the result of a concession on its part. We cannot approve of that impression nor uphold that contention, having regard to the impressive material is available in the case. In a sense, it is unnecessary for Tatas to take its case to that unwieldy and unrealistic extent, having regard to its own claim of an economic advantage it will derive by a scrapping of obsolescent units. The pressing necessity for power of this growing city is put forward as a reason for deferring the demolition of the units. There is no harm in accepting it as fair stand on the part of the Tatas, though the petitioners have subjected that claim to many slings and arrows from their environmental armoury.
9. On behalf of the State, it was submitted that Unit No. 7 was expected to be commissioned in 1994 and that the condition contained in Ext. H dated 28-2-1991 that Unit Nos. 1, 2 & 3 could operate only till the 'combined cycle power put into operation 'will be implemented without fail. If the Tatas are also eager to demolish those units, guided by their own reasons of finance and perspective planning, there need not be any further elaborate discussion about the appropriateness or relevance of that condition. The incorporation of the condition has not been questioned by the Tatas. We do not therefore propose to go into the anterior correspondence, as was referred to by the Counsel for the Tatas.
10. The petitioners have an apprehension that the incorporation of the condition is only a sop to the gullible, and there will be a repeat performance of difference of the enforcement of the condition, the moment an other application for the installation of newer unit is made by Tatas and considered by Government and the Board. The process could go on ad infentum, much to the chagrin of the people of the congested Chembur area. The camel's back is almost broke, and not even a straw should be added as a load- is their strong plea. It may be difficult to characterise the apprehension of the petitioners as totally without foundation.
11. Even after Ext. H, there have been evaluations of various considerations at the highest level. Ext. 8 contains the minutes of the meeting held on 21-6-1991 in which two representatives of Tatas were also present along with 11 other representatives from the Ministries of Power, Finance, Environment and Forest and the Central Electricity Board and the Pollution Control Board. Ext. 8 Office Memorandum dated 30-9-1991 again emphasised the necessity for scrapping the Units 1, 2 & 3 (without fail) along with the commissioning of the new units.
12. It is unnecessary to carry the discussion further, in the light of the latest affidavit filed by the Board, after its meeting held on 24-1-1992, when it,
'unanimously decided to allow M/s Tata Electric Companies to continue to operate Unit Nos. 1, 2 & 3 till the regular commissioning of 180 MW Combined Cycle Power Plant.'
and thought it fit.
'to direct M/s Tata Electric Companies to decommission the Unit Nos. 1, 2 & 3 after regular commissioning of 180 MW Combined Cycle Power Plant'
The further resolve with the inflexible mandate for decommissioning Units 1, 2 & 3 on the regular commissioning of the new unit, and insisting that Unit No. 4 shall be run only on gas, are indicated without any scope for further doubt or a ground for further argument.
13. In recent Environment law Literature, there has been, an emphasis on a crucial consideration : 'the more environmentally sensitive the location, the more likely it its that the environmental effects is significant and will warrant assessment'. Note the further comment: 'urban locations where the characteristics of proposed development would be likely to have significant effects on heavy concentrations of population'. (See page M-4 of the 1990 LUCN Review.) We accept this as a statutory condition incorporated by the primary authority-the Board-after a full evaluatation of environmental impact and the conscious consideration of the environmental purity needed under the statutory scheme and our Constitution system . It is useful to remind ourselves that the Constitutional after its 42nd amendment, contains a directive to the State Government (Article 43) to protect the environment and imposes a Fundamental Duty (Article 53A) on the citizen, to protect the environment. We direct and order that the above condition shall be honoured without failure or deviation by the Tatas. Needless to add, the punctuations observant of compliance with the other conditions, also would be ensured by the Board., The Board is invested with sufficient muscle power to act when action is needed. It cannot any longer make a weekling's plea: 'the walnuts are there, but I have no teeth to bite'. As the watch-dog of the citizens' right, and obliged to carry out the Constitutional command, it is expected not merely to bark but also to bite, if and when the necessity therefore arises. We trust that in these days of global concern for environmental excellence no enlightened entrepreneur would act in a rash and reckless manner. The credentials of the Tatas in devising measures of environmental improvement, in a more liberal manner than is expected of an ordinary employer, and even in are as much beyond their immediate factory locations, have been given in their returns/When the Court accepts the conditions now imposed on them as in tune with the dictates of the statute and totally accepted by respondents 2 to 4, there could possible be no friction between the citizen and the entrepreneur. The situation will not be Development versus Environment, but impressive development going hand in hand with desirable Environmental chastity.
14. Counsel for the petitioner with understandable exuberance of environmental enthusiasm was for shooting down the entire order giving the clearance for the establishment of the new unit. Having regard to the materials on hand, the considered decision now taken by the Board, and the assurance given by Tatas, we feel that curial intervention, at this stage, is not called for :
15. When the Court is satisfied that, there has been the proper consideration of all materials by authorities and that the conscious decision has been taken on an advertence to and consideration of such materials, intervention may not be immediate. See E.I. du Pond de Nemours & Co. v. Train, 430 U.S. 112, and E.P.A. v. National Crushed Stone Association, (1980)449 U.S. 64 . Peter C. Yeager through the Cambridge University Press publication 'The Limits of Law'. The public regulation of private pollution has presented interesting materials from this field. We may also recall the guidance available from two of the recent judgments of the Supreme Court reported in Mukthi Sangarsh Movement v. State of Maharashtra, , Rajasthan S.E.B. v. Cess Appellate Committee, : AIR1991SC597 and Chhetriya Pardushan Mukti Sanghrash Samiti v. State of U.P., : [1990]3SCR739 .
Even in the days of Plato, (Long before 1970) the value of environment had been emphasised. C.E.M. Joad who used to walk long distances through the country side, recommended:
'It is a truth, nevertheless, since, as Plato told us, if you bring up a soul in a gracious and harmonious environment, it will itself become gracious and harmonious; conversely, if the environment is mean and ugly, the soul will not come easily to terms with that which is noble and lovely.'
India, can be certainly proud of creditable achievements and in the enforcement of environmental protection through the intervention of the Court. The clear pronouncements of Supreme Court of India, would demonstrate the impressive march in that filed made by our courts during the last two decades. The first of its kind in this field of litigation ---the famous Silent Valley case - 1984 CULR 128 from the most literate State in the Indian Union-heralded a new trend and blazed a new trial in Environmental protection. As had happened in the Memphis Park case of America, though the case was lost, the cause was won. The rest is history. There have been reflections of the enlightening trends of India even among other neighbourly countries. Article 191 of the Constitution of Pakistan declares that every citizen has the right to file a writ to protect their environmental right. (See page 13 and 14 of the NCS Bulletin). The Pakistan Environmental Protection Ordinance became law in 1983. The publication of Inter National Union for Conservation of Nature, reflecting the review of environmental impact assessments in Europe, would indicate some of the current developments in developed countries. For lawyers and Courts alike, the decision of the House of Lords of O'Reilly v. Mackman, 1982 (3) All E.R. 1124, and the some what conservative and retro grade case in R.V. Rose Theatre Trust Company, 1990(1) W.L.R. 186 may furnish food for thought. At the same time, administrators and citizens, alike, would be benefited from the emergence of such legal provisions like the Town and Country Planning (Assessment of Environment Effects) Regulations, 1988 and even the specialised regulation like Electricity and Pipeline Works (Assessment Regulations).
16. There were some subsidiary contentions about alleged violations of Rules of a specific character. We do not intend to deal with them, as it will be inappropriate at this stage for the Constitutional Court to have a direct intervention in such matters. Such instances should receive the serious attention of the Pollution Control Board. No one can permit Trombay or Chembur to be called the suburbs of Hell, as was the fate of Sheffield some time back. We do expect Board to act and react, swiftly and reasonably. We trust that a Board entrusted with honourable though onerous responsibilities, would be alive to the dedication and involvement expected of it, and that it will not allow it to be debilitated by parasitical operations of indolence or indifference, The petitioners would, doubtless, have a justifiable recourse to the Court, in case there is default or unjustifiable delay on the part of the Board. A decision taken by the Board otherwise than by due advertence to the Constitutional standards of fairness, rationality and reasonableness would expose such actions and decisions to appropriate operations by the Constitutional Court.
17. We dismiss the writ petition, but subject to the observations and directions in relation to the implementation of the condition regarding decommissioning of Units 1 to 3 which shall be treated as one of inflexible and undeletable character.