Case summaries

-Aakash Chauhan, BA.LLB HONS.

RMLNLU

State Of Uttaranchal vs Balwant Singh Chaufal & Ors

This case was an appeal from the decision of the High Court of Uttarkhand in a
public interest litigation. The High Court had directed the state government to
decide whether appointment of an Advocate General for the state of Uttaranchal
beyond the age of 62 years, was valid or not. The law on this issue is settled that
there is no upper limit on age for a person to be appointed to the constitutional
post of an Advocate General. The appeal was allowed. But the importance of the
judgment lies on the fact that it raises certain interesting issues about the need to
regulate the field of public interest litigations. The filing of indiscriminate
petitions creates unnecessary strain on the judicial system and consequently leads
to inordinate delay in disposal of genuine and bona fide cases. The courts’
contribution in helping the poorer sections by giving a new definition to life and
liberty and in protecting ecology, environment and forests is extremely
significant. However, the Bench said, unfortunately, of late, such an important
jurisdiction, which has been carefully carved out, created and nurtured with great
care and caution by the courts, is being blatantly abused by filing some petitions
with oblique motives. In order to preserve the purity and sanctity of the PIL, the
Supreme Court has laid down guidelines to be followed by courts:

(1) The courts must encourage genuine and bona fide PIL and effectively
discourage and curb the PIL filed for extraneous considerations;

(2) Instead of every individual judge devising his own procedure for dealing with
the public interest litigation, it would be appropriate for each High Court to
properly formulate rules for encouraging the genuine PIL and discouraging the
PIL filed with oblique motives. Consequently, we request that the High Courts
who have not yet framed the rules, should frame the rules within three months.
The Registrar General of each High Court is directed to ensure that a copy of the
Rules prepared by the High Court is sent to the Secretary General of this court
immediately thereafter;

(3) The courts should prima facie verify the credentials of the petitioner before
entertaining a P.I.L.;

(4) The court should be prima facie satisfied regarding the correctness of the
contents of the petition before entertaining a PIL;
(5) The court should be fully satisfied that substantial public interest is involved
before entertaining the petition;

(6) The court should ensure that the petition which involves larger public interest,
gravity and urgency must be given priority over other petitions;

(7) The courts before entertaining the PIL should ensure that the PIL is aimed at
redressal of genuine public harm or public injury. The court should also ensure
that there is no personal gain, private motive or oblique motive behind filing the
public interest litigation;

(8) The court should also ensure that the petitions filed by busybodies for
extraneous and ulterior motives must be discouraged by imposing exemplary costs
or by adopting similar novel methods to curb frivolous petitions and the petitions
filed for extraneous considerations.
 MC MEHTA VS UNION OF INDIA

1st case (Facts)

A writ petition was filed by M.C Mehta, a social activist lawyer, he sought
closure for Shriram Industries as it was engaged in manufacturing of hazardous
substances and located in a densely populated area of Kirti Nagar.While the
petition was pending, on 4 and 6 December 1985, there was leakage of oleum
gas from one of its units which caused the death of an advocate and affected the
health of several others. The incident took place on December 4, 1985.

Just after one year from the Bhopal gas disaster a large number of persons –
both amongst the workmen and public were affected. This incident also
reminded of the Bhopal gas holocaust.

M.C Mehta filed a PIL under Articles 21 and 32 of the Constitution and sought
closure and relocation of the Shriram Caustic Chlorine and Sulphuric Acid Plant
which was located in a thickly populated area of Delhi.

Factories were closed down immediately as Inspector of Factories and

Commissioner (Factories) issued separate orders dated December 8 and 24,
1985 . This incident took place only a few months before Environment
(Protection) Act came into force, thus became a guiding force for having an
effective law like this.

There are six reported orders in the Shriram Food and Fertilizer Industry case
of the Supreme Court of India, out of these six, four orders were pronounced
before Environment (Protection) Act, 1986 was passed and the date from
which it came into force. Thus the reported orders are relevant and important
as they shed new light on how highly toxic and hazardous substances industry
should be dealt with and contained and controlled to minimize hazards to the
workers and general public.
Issues -:

1. Whether such hazardous industries to be allowed to operate in such areas

2. If they are allowed to work in such areas, whether any regulating mechanism be
evolved.
3. Liability and amount of compensation how to be determined.

Decision -:

Chief Justice Bhagwati showed his deep concern for the safety of the people of
the Delhi from the leakage of hazardous substances like the one here – oleum
gas. He was of the opinion that we cannot adopt the policy to do away with
chemical or hazardous industries as they also help to improve the quality of life,
a sin this case this factory, was supplying chlorine to Delhi Water Supply
Undertaking which is used to maintain the wholesomeness of drinking water.
Thus industries even if hazardous have to be set up since they are essential for
economic development and advancement of well being of the people.

"We can only hope to reduce the element of hazard or risk to the community by
taking all necessary steps for locating such industries in a matter which would
pose least risk of danger to the community and maximizing safety requirements
in such industries "

Thus the Supreme Court was of the opinion that total ban on the above industry
of public utility will impede the developmental activities.

It was also observed that permanent closure of the factory would result in the
unemployment of 4000 workers, caustic soda factory and add to social problem
of poverty. Therefore the court made an order to open the factory temporarily
subject to eleven conditions and appointed an expert committee to monitor the
working of the industry.

The court also suggested that a national policy will have to be evolved by the
Government for the location of toxic or hazardous industries and a decision will
have to be taken in regard of relocation of such industries with a view to
eliminate risk to the community.

Some of the conditions formulated by the government were -:

1. The Central Pollution Control Board to appoint an inspector to inspect and see
that pollution standards set under the Water Act and Air Act to be followed.
 2. To constitute Worker's Safety Committee
3. Industry to publicise the effects of chlorine and its appropriate treatment
4. Instruct and train its workers in plant safety through audio visual programme,
install loudspeaker to alert neighbors in the event of leakage of gas
5. Workers to use safety devices like masks and belts
6. And that the workers of Shriram to furnish undertaking from Chairman of DCM
Limited, that in case of escape of gas resulting in death or injury to workmen or
people living in vicinity they will be "personally responsible " for payment of
compensation of such death or injury .

The Court also directed that Shriram industries would deposit Rs 20 lakhs and
to furnish a bank guarantee for Rs. 15 lakhs for payment of compensation
claims of the victims of oleum gas if there was any escape of chlorine gas within
three years from the date of order resulting in death or injury to any workmen
or living public in the vicinity . The quantum of compensation was determinable
by the District Judge , Delhi .It also shows that the court made the industry
"absolutely liable " and compensation to be paid as when the injury was proved
without requiring the industry to be present in the case .

The above mentioned conditions were formulated to ensure continuous

compliance with the safety standards and procedures laid by the committees
(Manmohan Singh Committee and Nilay Choudhary Committee ) so that the
possibility of hazard or risk to workmen could be reduced to nil .

This all indicates that Supreme Court in its judgement emphasized that certain
standard qualities to be laid down by the government and further it should also
make law on the management and handling of hazardous substances including
the procedure to set up and to run industry with minimal risk to humans ,
animals etc.

Further the industries cannot absolve itself of the responsibility by showing

either that that they were not negligent in dealing with the hazardous
substance or they took all the necessary and reasonable precautions while
dealing with it. Thus the court applied the principle of no – fault liability in this
case .

2nd case

It modified some of the conditions which were laid down by Supreme Court
ordered to be closed .
 3rd case

Issues:

In this case three important issues were raised -:

1. What is the scope of Article 32 of Constitution ?

2. The rule of last Absolute Liability or Rylands vs Fletcher rule to be followed .
3. Issue of compensation to be awarded

Decision-

1. Scope of Article 32

The court observed that apart from issuing directions , it can under Article 32
forge new remedies and fashion new strategies designed to enforce
fundamental rights . The power under Article 32 is not confined to preventive
measures when fundamental rights are threatened to be violated but it also
extends to remedial measures when the rights are already violated (vide
Bandhua Mukti Morcha v. Union of India ) .The court however held that it has
power to grant remedial relief in appropriate cases where violation of
fundamental rights is gross and patent and affects persons on a large scale or
where affected persons are poor and backward.

2. Which rule to be followed Absolute Liability or Rylands v. Fletcher case?

Regarding the measure of liability of an industry engaged in hazardous or

inherently dangerous activity in case of an accident the court examined
whether the rule in Rylands vs Fletcher would be applicable in such cases.

This rule laid down if a person who brings on to his land and collects and keep
there anything likely to do harm and such thing escapes and does damage to
another he is liable to compensate for the damage caused. The liability is thus
strict and it is no defence that the thing escaped without the person's wilful act,
default or neglect.
The exceptions to this rule are that it does not apply to things naturally on the
land or where the escape is due to an act of god, act of stranger or the default of
the person injured or where there is statutory authority .

The court held that the rule in Rylands v. Fletcher will all of its exceptions is not
applicable for the industries engaged in hazardous activities.

Supreme Court expounded that,

"This rule evolved in the 19th century at a time when all these developments of
science and technology has not taken place. We have to evolve new principles
and lay down new norms which would adequately deal with the new problems
which arise in highly industrialized economy "

The court introduced new "no fault " liability standard (absolute liability). An
industry engaged in hazardous activities which poses a potential danger to
health and safety of the persons working and residing near owes an absolute
and non-delegable duty to the community to ensure that no harm results to
anyone. Such industry must conduct its activities with highest standards of
safety and if any harm results, the industry must be absolutely liable to
compensate for such harm. It should be no answer to industry to say that it has
taken all reasonable care and that harm occurred without negligence on its
part. Since the persons harm would not be in position to isolate the process of
operation from the hazardous preparation of the substance that caused the
harm, the industry must be held absolutely liable for causing such harm as a
part of the social cost of carrying on the hazardous activities. This principle is
also sustainable on the ground that the industry alone has the resource to
discover and guard against hazards or dangers and to provide warning against
potential hazards.

3. Issue of Compensation-

It was held that the measure of compensation must be correlated to the

magnitude and capacity of the industry so that the compensation will have a
deterrent effect. The larger and more prosperous by the industry, the greater
will be the amount of compensation payable by it.

The court did not order payment of compensation to victims since it left open
the question due to lack of time to adjudicate whether Shriram, a pri
 Special Leave Petitions in India

(SLP) holds a prime place in the Judiciary of India, and has been provided as a "residual power"
in the hands of Supreme Court of India to be exercised only in cases when any
substantial question of law is involved, or gross injustice has been done. It provides the
aggrieved party a special permission to be heard in Apex court in appeal against any judgment
or order of any Court/tribunal in the territory of India (except military tribunal and court martial) [1]
The Constitution of India under Article 136 vests the Supreme Court of India, the apex court of
the country, with a special power to grant special leave, to appeal against any judgment or order
or decree in any matter or cause, passed or made by any Court/tribunal in the territory of India. It
is to be used in case any substantial constitutional question of law is involved, or gross injustice
has been done.
It is discretionary power vested in the Supreme Court of India and the court may in its discretion
refuse to grant leave to appeal. The aggrieved party cannot claim special leave to appeal under
Article 136 as a right, but it is privilege vested in the Supreme Court of India to grant leave to
appeal or not.

Restrictions[
SLP can be filed against any judgment or decree or order of any High Court /tribunal in the
territory of India; or, SLP can be filed in case the High court refuses to grant the certificate of
fitness for appeal to Supreme Court of India.
SLP can be filed against any judgment of High Court within 90 days from the date of judgement;
or SLP can be filed within 60 days against the order of the High Court refusing to grant the
certificate of fitness for appeal to Supreme Court.
Any aggrieved party can file SLP against the judgment or order of refusal of grant of certificate.
This petition is required to state all the facts that are necessary to enable the court to determine
whether SLP ought to be granted or not. It is required to be signed by Advocate on record. The
petition should also contain statement that the petitioner has not filed any other petition in the
High court. It should be accompanied by a certified copy of judgement appealed against and an
affidavit by the petitioner verifying the same and should also be accompanied by all the
documents that formed part of pleading in Lower court.

The scope of power vested with the Supreme Court of

India under Article 136
The constitution of India vest "discretionary power" in the Supreme Court of India. The Supreme
Court of India may in its discretion be able to grant special leave to appeal from any judgment or
decree or order in any matter or cause made or passed by any Court/tribunal in the territory of
India. The Supreme Court of India may also refuse to grant the leave to appeal by exercising its
discretion.
An aggrieved party from the judgment or decree of high court cannot claim special leave to
appeal as a right but it is privilege which the Supreme Court of India is vested with and this leave
to appeal can be granted by it only.
An aggrieved party can approach the Apex Court under Article 136 in case any constitutional or
legal issue exists and which can be clarified by the Supreme Court of India. This can be heard as
civil or Criminal appeal as the case may be.

Judgments of various Courts of India on SLP

There is catena of judgments mentioning about the scope of power of Supreme Court under
Article 136, the maintainability of special leave petitions. The below mentioned are some of
prominent judgments mentioning about SLP.

• Pritam Singh v. the State [AIR 1950 SC 169][2]

• Kunhayammed vs. State of Kerala (2000) 245 ITR 360 (SC)[3]
• Smt. Tej Kumari vs. CIT (2001) 247 ITR 210[4]
• N. Suriyakala Vs. A. Mohan doss and Others (2007) 9 SCC 196 [5]
• Tirupati Balaji Developers Pvt. Ltd. Vs. State of Bihar AIR 2004 SC 2351, [6]
• Jamshed Hormusji Wadia Vs. Board of Trustees, Port of Mumbai AIR 2004 SC 1815
• Mathai @ Joby v. George ( (2010) 4SCC 358)
• Columbia Sportswear Company v. Directorate of Income Tax (judgment of Supreme Court of
India in SLP no 31543 of 2011)
• Jacob Matthew vs State of Punjab (2005) 6 SCC 1
• VISHAL ASHOK THORAT vs. RAJESH SHRIRAMBAPU FATE (2018)