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2012 DIGILAW 563 (ORI)

Yudhisthira Sahoo v. Government of Orissa

2012-12-20

S.K.MISHRA, V.GOPALA GOWDA

body2012
JUDGMENT V. GOPALA GOWDA, C.J. : The petitioners who claim to be the representatives of a class of villagers of Badataila Sahi of mouza Balaram Prasad in the district of Angul challenge the inaction and illegal action of the opposite parties 6 to 8 and oppose the construction work of the Stage-IV Ash Pond undertaken by the management of the National Aluminium Company (for short, “NALCO”), at Balaram Prasad, Nalco Nagar in the district of Angul adjacent to the petitioners’ hamlet village, although three ash ponds are already in existence to discharge the waste ashes of the power plant of NALCO through pipe line which causes inconvenience and pollution of the air and water of the area endangering the lives, health and properties of the petitioners by creating hazardous pollution in the locality and spreading diseases like T.B. and leprosy and also causes orthopaedic diseases due to fluoride contents in discharged effluents polluting the air and water in the locality. 2.It is the case of the petitioners that even though the management of NALCO authority acquired the land measuring an area of Ac.46.90 dec. in the said mouza through land acquisition proceeding in exercise of emergent power of acquisition of land under the provision of Section 17(4) of the Land Acquisition Act, 1894 (for short, “the L.A. Act”) due to breakage of side walling of old ash ponds with the specific remark that the opposite party management of NALCO imploring upon the Pollution Control Board is making surreptitious attempt for construction of a new Stage-IV ash pond adjacent to petitioners’ hamlet village violating the purpose and endorsement in the Land Acquisition Act. 3.It is submitted that petitioner No.6 is an educational institution established Punyashrama under the name of Nakula Chandra special School for Blind, Deaf and Dumb since 2002 in mouza Balaram Prasad, which is registered under the Societies Registration Act, 1860 and also under the provisions of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 by the Government of Odisha, Women and Child Development Department vide Registration No.56/WCD of 2005, BBSR dated 10.03.2005. 4.It is submitted that NALCO is a public limited company and Government of India Enterprise established in 1981 for production of aluminium from alumina ore and has constructed one separate captive power plant for generation of power. 4.It is submitted that NALCO is a public limited company and Government of India Enterprise established in 1981 for production of aluminium from alumina ore and has constructed one separate captive power plant for generation of power. The ashes that come out from such power plant are sent through pipe line in slurry to ash pond for which three separate ash ponds are already there for dumping of the power plant wastes. Due to huge deposit of ashes in slurry from beyond control the ash ponds embankments collapsed on 31st December, 2000, as a result of which the slurry ashes dumped up to 50 meters level in the west-northern side of the ash pond flows to fields convey 20 KMs. and ultimately came to Nandira River causing hazardous pollution in the entire environment. This has been published through media in almost all the local dailies. In this connection, the local people had also lodged FIR against the Chairman and the Managing Director and the Executive Direction of NALCO for not taking preventive measure to avoid air and water pollution in the locality causing damage to the common citizen of the area, which case is since pending. Thereafter the management proposed to acquire more land for dumping the ashes and accordingly on the request of the NALCO management, the Government of Odisha acquired Ac.46.90 decimals of land in mouza Balaram Prasad vide notification dated 25.9.2001 notified under Section 4(1) of the Land Acquisition Act, 1894. However, since the emergent situation arose in order to avoid Section 5(A) of the L.A. Act, the said land of Ac.46.90 dec. was acquired under Section 17(4) of the L.A. Act including some lands belonging to some private owners on payment of compensation. Thereafter opp.parties 6, 7 and 8 decided to construct another new ash pond in Stage-IV adjacent to the petitioners’ hamlet village Badatalia sahi in mouza Balaram Prasad, wherein more than fifty family members including the petitioners are residing over their own homestead land from the time immemorial. 5.Despite all this, the NALCO floated tender for taking of the construction work of Stage-IV Ash pond, against which the villagers staged a hunger strike. 5.Despite all this, the NALCO floated tender for taking of the construction work of Stage-IV Ash pond, against which the villagers staged a hunger strike. 6.It is stated that though the Pollution Control Board suggested for certain precautionary measures for the purpose, opp.party No.1 has directed the NALCO management to proceed with the construction work and opp.party Nos.6, 7 and 8 started the construction work over the land in question at the cost of the lives of common villagers in violation of Article 21 of the Constitution of India, which has been fortified in catena of decision delivered by this Court as well as the Apex Court. The Apex Court in the case of Vellore Citizen Welfare Forum v. Union of India, (1996) 5 SCC 647 , it has categorically observed that industries which are essential for economics development may have to be set up but measures should be taken to reduce the risk of hazardous nature to the community by taking necessary steps or locating such industries in a manner that would pose the least risk or danger to the community and maximizing safety requirement on such industries. Similarly, in the case of M.C. Mehta v. Kamal Nath and others, AIR 2000 SC 1997 , the Apex Court has held that any disturbance of basic requirement element namely air, water and soil which are necessary for life would be hazardous to life. Further, the Apex Court in the case of Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1146, held that if an industry is established without requisite permission and/or violating the basic norm and in blatant disregard and violation of law to the detriment of citizen “right to life” the Court can interfere and rule of absolute liability applies in such cases being violative of Article 21 of the Constitution of India. 7.Further, it is urged by the petitioner that “right to life” in the community does not mean to live being affected with diseases and live in a disadvantageous position like animal, but such living in the community is to live with human dignity. The “right to life” has been guaranteed by the constitutional provision which has received the widest possible interpretation made by the Apex Court under the canopy of Article 21 of the Constitution of India and such right is enforceable against the State also. The “right to life” has been guaranteed by the constitutional provision which has received the widest possible interpretation made by the Apex Court under the canopy of Article 21 of the Constitution of India and such right is enforceable against the State also. 8.Notwithstanding the aforesaid reason, it is needless to mention that the Green Tribunal Forum is not an alternative remedy for the petitioners to get redressal of public interest involved in this case as it is the case of the petitioners that on account of the illegal action on the part of the NALCO in constructing the Stage-IV Ash Pond in the lands which are acquired by the company though the said lands do not come within the purview of ‘industrial area’ for which a notification under Section 14(1)(a) of the Act and under the IDCO Act is required to be issued by the State Government. Construction of such Ash Pond amounts to industrial activity which will not only cause air and water pollution but also ecology and environment will be adversely affected and thereby create health hazards to the residents of the locality and their agricultural occupation of the agriculturists of the locality will be affected and thereby the agricultural livelihood of the labourer will be deprived. Therefore, the action of the NALCO will be in blatant violation of the fundamental rights of the people residing nearby the proposed Ash Pond location. Therefore, the learned counsel for the petitioners submits that the PIL is maintainable. Hence, the contention raised on behalf of NALCO that the matter should be transferred to the Green Tribunal or the alternative forum is not tenable in law. 9.Further, it is stated by the petitioners that keeping in view the basic legal principles laid down by the Apex Court in catena of decisions, construction of Stage-IV ash pond by the NALCO over the land in question which would make hazardous pollution of air, water and soil. The action of NALCO to construct the proposed Ash Pond is in utter contravention of the terms of acquisition of land and also with wilful disregard of the report of the Pollution Control Board, which action is highly illegal and the same is violative of Article 21 of the Constitution and therefore required to be stopped in the interest of the petitioners and the public at large and therefore writ petition should be allowed. 10.The writ petition is opposed by opp.parties 6, 7 and 8 by filing counter statements by way of affidavit sworn to by Duryodhan Samal, at present working as Manager H.R.D., Captive Power Plant, National Aluminium Company Limited, Nalconagar, Angul denying the averments made in the writ petition and justifying the construction of the proposed Ash Pond Stage-IV in the area in question alleging that the petitioners are guilty of suppression of material facts and they have resorted to deliberate distortion and as such the writ petition is liable to be dismissed. 11.It is further stated that this is not a case where ash slurry would be moved through sealed pipeline to be dumped in the ash pond. The petitioners are either ignorant of the actual facts or have deliberately resorted to distortion of facts. A scientific method has been adopted to move the ash and not the ash slurry in a semisolid form like paste though the sealed pipeline and would be discharged in to the ash pond in the semisolid form. The same would immediately be totally solid within a period of one or two hours. Therefore, there is no question of ash slurry getting deposited in the ash pond and as such there cannot be any apprehension for the petitioners and other residents of any breach of the ash pond embankment or seepage of the ash slurry to the adjacent ground. 12.It is further stated that the present system of dumping ash in the ash pond either in the shape of ash slurry or in the shape of high concentrated mode is going to be totally phased out gradually after disposal the coal voids of MCL would start through pipelines, which is the subject matter in W.P.(C) Nos.9772 and 9773 of 2012. The present high concentration mode which is going to be adopted does not have any problem relating to seepage/leakage through the embankment or overflowing the embankment. In the said high concentrated mode of disposal, as the disposed of material would immediately become totally solid within a period of one or two hours, there will be absolutely no content of water left for any percolation. Therefore, there cannot be of any apprehension of flying or flowing ash for the petitioners and residents of the locality where the proposed Ash pond will be constructed by the NALCO. Therefore, there cannot be of any apprehension of flying or flowing ash for the petitioners and residents of the locality where the proposed Ash pond will be constructed by the NALCO. 13.It is further stated that the writ petitioner-Yudhisthir Sahu has not correctly stated about his own residence. He is a permanent resident of Kurudol and does not reside in Badataila Sahi. The village Kurudol is at a distance of 3KMs from the construction side of ash pond-IV, which is evident from the Khatian filed by the petitioners themselves. 14.It is their case that the averments made in paragraph-1 that three ash ponds are existing in the area in question are incorrect. In fact, there exist only two ash ponds. In between the two ash ponds there is a decantation channel to drain out the excess water and that is referred to as ash pond-III. 15.It is stated that in the year 2000 when there was a breach in the ash pond, the ash slurry slipped into the nearby areas. The aid nearby areas were immediately acquired by NALCO on the request of the villagers. In fact the present ash pond, i.e., ash pond-IV is being constructed in that area only. The record containing the notes of discussion dated 4.4.2001 has been filed therewith as Annexure-A/6, which would indicate that the villagers requested for expeditious acquisition of land which got damaged on account of breach in the ash pond and also for payment of compensation. Consequent upon acquisition of the said land not only compensation was paid to the villagers who lost their lands but also 52 numbers of villagers were given employment in lieu of the same. Therefore, Ac.46.90 decimal of land, which is now being used for the purpose of construction of the ash pond-IV, was acquired in the aforesaid process. Annexure-B/6 is the notification issued by the Government in Revenue Department, which would indicate that for the purpose of ash pond the lands were acquired. 16.It is also stated that on account of breach in the year 2000, alternative methods have also been planned and adopted by the NALCO Co. One of the major steps taken by NALCO is to construct pipelines for about 22 KMs from NALCO area to Mahanadi Coalfields Limited to fill up the coal voids created by extracting of coal by MCL. One of the major steps taken by NALCO is to construct pipelines for about 22 KMs from NALCO area to Mahanadi Coalfields Limited to fill up the coal voids created by extracting of coal by MCL. In the said pipelines ash slurry will be flown and will be buried deep inside the ground from which coal has already been extracted and voids have been created. This is one of the safest methods for which for which construction work is speedily going on. It is expected to be over by December, 2012. Once the said operation would start gradually the dumping of ash would be phased out. Another scientific method of disposal in the high concentrated mode in the ash pond-IV has been adopted and there will be no fear of flying ash or ash flowing to area adjacent. 17.In response to the averments made in paragraph-15 of the writ petition that the ash ponds could not accommodate the ash slurry beyond its capacity and would cause breach and would ultimately come to Nandira river causing hazardous pollution, it is stated that the present step taken to construct the ash pond-IV is to safe guard against any such eventuality and to accommodate the ash in lump form. 18.It is stated that the ash ponds were constructed in the year 1986 and are in existence since then. Once there was a breach in the year 2000. In the last 12 years there has been no breach, as adequate safety measures have been taken to prevent such occurrence. Therefore, the apprehension of breach is unfounded. 19.With regard to the averments made in rest of the paragraphs, it is stated that at no point of time the Pollution Control Board has prevented the construction of ash pond-IV. 20.It is further stated that if the ash pond-IV is directed to be closed down, it would not only cause irreparable injury to such a huge organization in terms of National wealth as production, etc. will be affected, but also it would cause heavy load on the existing ash ponds which are about to be filled up. 20.It is further stated that if the ash pond-IV is directed to be closed down, it would not only cause irreparable injury to such a huge organization in terms of National wealth as production, etc. will be affected, but also it would cause heavy load on the existing ash ponds which are about to be filled up. Therefore as NALCO has already undertaken the alternative method of disposal through pipelines in MCL coal voids and which is likely to be over by 2012 December and which would be a step towards phasing out dumping in ash pond system, NALCO should be allowed to go ahead with the ash pond-IV programme without any interruption. 21.It is further stated that ash in the form of semisolid paste would be discharged through sealed pipelines by pumping through costly pumps. It would be discharged in the dumping year like toothpaste being discharged from a tube. It would be solid within a couple of hours once it comes in contract with air and sunlight. A pump to discharge the same costs around seven crores and NALCO has already installed three such pumps costing more than twenty-one crores to discharge the same in the aforesaid form. The apprehension of the petitioners that ash slurry is going to be discharged and that would cause breach in the embankment is totally ruled out. 22.It is also stated that the contents of Annexure-D/6 dated 18th April, 2012 would clearly show that a direction has been issued by the Government of Odisha in the Department of Forest & Environment to complete the construction of ash pond-IV on war footing. The contents further would indicate that NALCO has also deposited necessary amount with the RWSS Department of the Government for supply of water to the nearby villages. Besides, direction has also been given to NALCO to complete the disposal through pipeline system expeditiously. Therefore, steps have been taken expeditiously to complete not only the pipeline disposal system but also the construction of ash pond-IV in order to release pressure on the existing ash ponds. 23.It is further stated that Annexure-E/6 series contains the reports of the State Pollution Control Board in regard to disposal in existing ash ponds for different years, which would indicate that the standard as prescribed by the State Pollution Control Board is being strictly maintained. 23.It is further stated that Annexure-E/6 series contains the reports of the State Pollution Control Board in regard to disposal in existing ash ponds for different years, which would indicate that the standard as prescribed by the State Pollution Control Board is being strictly maintained. 24.It is also stated that most of the petitioners are aspirants for job in the NALCO. In the recent past Siri Kanta Pradhan, son of Dibakar Pradhan (now deceased and petitioner), Bhagyashree Swapnanjali (petitioner), Rohit Sahu, son of Tirtha Sahu (petitioner), Lipan Kumar Dehuri, son of Trinath Dehuri and Rupa Sahu who after marriage has become Rupa Dehuri (petitioner) have applied for job under NALCO. Annexure-G/6 series are the applications filed by the above named petitioners. 25.It is also further stated that petitioner No.6, the school referred supra, from time to time has been applying for different kinds of help from NALCO in terms of finance. Annexure-H/6 series are the copies of some applications filed by petitioner No.6. On various occasions NALCO has given financial help to petitioner No.6, which would be more than Rs.5.00 lakhs. 26.It is stated that present litigation has been filed by the people those who are substantially interested in getting benefits from NALCO. Therefore, the allegations made in the writ petition are totally denied and it is prayed that the writ petition is liable to be dismissed. 27.With reference to the above rival, factual and legal contentions, the points that would arise for consideration by this Court are as follows : (i)Whether the writ petition is required to be transmitted to the Tribunal in view of the judgment dated 9th August, 2012 rendered by the Supreme Court in Civil Appeal Nos.3187-3188 of 1988 (Bhopal Gas Peedith Mahila Udyog Sangathan and others v. Union of India and others) ? (ii)Whether construction of the Ash Pond Stage-IV by the NALCO is in violation of the statutory provision and without obtaining the consent order as required under notification dated 14.9.2006 issued under Sub-section (1) and Clause (v) of Sub-section (2) of Section 3 of the Environmental (Protection) Act, 1986 read with clause (o) of sub-rule (3) of Rule 5 ? (iii)Whether construction of the Ash Pond Stage-IV by the NALCO over the area of Ac.46.90 dec. of land causes environmental problem in the locality ? (iii)Whether construction of the Ash Pond Stage-IV by the NALCO over the area of Ac.46.90 dec. of land causes environmental problem in the locality ? (iv)Whether the petitioners are entitled for relief of directing opp.parties 6, 7 and 8 to stop further construction of the Stage-IV Ash Pond adjacent to the petitioners’ hamlet village ? 28.The first point is required to be answered in the negative for the following reasons. Learned counsel for the petitioners Mr. K.P. Mishra placed strong reliance upon Sections 14, 15 and 29 of the National Green Tribunal Act, 2010 in support of his contentions. He submitted that the National Green Tribunal will exercise its jurisdiction in places of civil Courts, where civil cases will be instituted in case of enforcement of the legal rights by public litigants relating to environment hazards claiming compensation and Section 15 confers power upon the Tribunal to grant relief for compensation to the victims of the pollution and other environmental damages arising out of breach of the environmental laws specified in Schedule-1 of the Act. He further contended that the petitioners have approached this Court with the grievance of violation of their fundamental right of peaceful residence and livelihood guaranteed under Articles 19(1)(e) and 21 of the Constitution of India. They have got every constitutional right to approach this Court seeking redressal of their grievance by filing this writ petition. In support of the said contention, he placed reliance upon two judgments of the Supreme Court viz. AIR 1954 SC 403 (Himatlal Harilal Meheta v. State of M.P.); and (1998) 8 SCC 1 (Harpal v. State of U.P. and another). (para 14 & 15) contended that assuming that after the direction contained in Bhopal Gas Peedith Mahila Udyog Sangathan’s case referred to supra the Green Tribunal is the alternative forum for the petitioners, there is no bar for this Court to exercise its extraordinary jurisdiction under Article 226 to protect the fundamental and statutory rights of the residents whose rights are espoused through this public interest litigation. 29.Further learned counsel for the petitioners has relied upon the Doctrine of Precautionary Principle placing reliance upon the judgments of the Supreme Court in the case of A.P. Pollution Control Board v. Prof. 29.Further learned counsel for the petitioners has relied upon the Doctrine of Precautionary Principle placing reliance upon the judgments of the Supreme Court in the case of A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and others, AIR 1999 SC 812 (paras-35, 36 and 37); Vellore Citizen Welfare Forum v. Union of India, (1996) 5 SCC 647 (para-11); M.C. Meheta v. Union of India, (2004) 12 SCC 185 and submitted that the first point is required to be answered against the NALCO an din favour of the petitioners. 30.The said legal submission is strongly rebutted by the learned Senior Counsel Mr. R.K. Rath who appeared on behalf of NALCO relying upon Bhopal Gas Peedith Mahila Udyog Sangathan’s case referred to supra, wherein the Supreme Court after examining the provisions of the National Green Tribunal Act and Rules made thereunder has directed all the High Courts to transfer the cases relating to the environmental aspects to the Green Tribunal established at New Delhi under the provisions of the Green Tribunal Act and Rules. He submitted that the writ petition cannot be entertained and this Court cannot grant relief in favour of the petitioners and requested this Court to transfer this case to the Green Tribunal at New Delhi for its consideration. 31.With reference to the above legal contention urged on behalf of the NALCO, this Court after examining the same is of the view that the said contention is wholly untenable in law, as the learned Senior Counsel’s interpretation of the said decision is not legally correct for the following reasons. For better appreciation, it would be necessary to extract the relevant provisions of Sections 14, 15 and 29 of the said Act. “14. (1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environmental (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactment specified in Schedule-1. (2) The Tribunal shall hear the disputes arising from the questions referred to in Sub-section (1) and settle such disputes and pass order thereon. (2) The Tribunal shall hear the disputes arising from the questions referred to in Sub-section (1) and settle such disputes and pass order thereon. (3) No application for adjudication of dispute under this Section shall be entertained by the Tribunal unless it is made within a period of six months from the date on which the cause of action for such dispute first arose : Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days. 15.(1) The Tribunal may, by an order, provide - (a)relief and compensation to the victims of pollution and other environmental damage arising under the enactment specified in the Schedule I (including accident occurring while handling any hazardous substance); (b)for restitution of property damaged; (c)for restitution of the environment for such area or areas, as the Tribunal may think fit. (2) The relief and compensation and restitution of property and environment referred to in clauses (a), (b) and (c) of Sub-section (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991. (3) No application for grant of any compensation or relief or restitution of property or environment under this Section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose : Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days. (4) The Tribunal may, having regard to the damage to public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit. (5) Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other Court or authority. 29. (5) Every claimant of the compensation or relief under this Act shall intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other Court or authority. 29. (1) With effect from the date of establishment of the Tribunal under this Act, no civil Court shall have jurisdiction to entertain any appeal in respect of any matter, which the Tribunal is empowered to determine under its appellate jurisdiction. (2) No civil Court shall have jurisdiction to settle dispute or entertain any question relating to any claim for granting any relief or compensation or restitution of property damaged or environment damaged which may be adjudicated upon by the Tribunal, and no injunction in respect of any action taken or to be taken by or before the Tribunal in respect of the settlement of such dispute or any such claim for granting any relief or compensation or restitution of property damaged or environment damaged shall be granted by the Civil Court.” 32.It is crystal clear that the Green tribunal has been established by virtue of the enactment made by the Parliament to exercise its jurisdiction in place of civil Courts, where civil cases will be instituted in case of enforcement of legal rights of the people of the locality relating to environment and claiming compensation. Further, Section 15 of the said Act confers power upon the Tribunal to grant relief of compensation to the victims of the pollution and other environmental damages, arising out of breach of environmental laws specified in Schedule-I. Apart from the said reasoning, the allegations made by the petitioners in this writ petition is that on account of construction of Stage-IV Ash Pond adjacent to the petitioners’ hamlet village over the newly acquired land measuring an area Ac.46.90 dec. is in gross violation of the terms and conditions of acquisition of land and there is strong opposition in the locality and protest by the local people, which has been published in the local newspapers The Sambad dated 28.3.2012, which newspaper cutting is produced at Annexure-8 to the writ petition. is in gross violation of the terms and conditions of acquisition of land and there is strong opposition in the locality and protest by the local people, which has been published in the local newspapers The Sambad dated 28.3.2012, which newspaper cutting is produced at Annexure-8 to the writ petition. Further, it is stated that the right to life guaranteed to the residents of the locality under Article 21 and right to peaceful residence guaranteed under Article 19(1)(e) of the Constitution have been affected on account of the proposed construction of the Stage-IV Ash Pond by the NALCO and the same is in contravention of the Water (Prevention & Control of Pollution) Act, 1974 and the Air (Prevention & Control of Pollution) Act, 1981. Therefore, to enforce the fundamental and statutory rights of the residents of the locality the petitioners have got every right to approach the constitutional Court under Article 226 of the Constitution in exercise of their constitutional right to espouse the cause of the residents by filing the public interest litigation petition. The Constitutional Court has been conferred with the power to interfere and protect the fundamental rights and the statutory rights of the people as the conferment of such power upon this Court is for issuing certain writs. Notwithstanding anything contained in Article 32, every High Court shall have power through out the territory in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government a writ of prohibition, mandamus or certiorari for enforcement of the fundamental rights. This legal position is very clear from the judgment of the Supreme Court in Himatlal Harilal Meheta’s case referred to supra. 33.Further, the learned counsel for the petitioners placed reliance upon Harpal’s case (supra) and submitted that even assuming that in view of the direction issued by the Apex Court in the case of Bhopal Gas Peedith Mahila Udyog Sangathan referred to supra that Green Tribunal is the appropriate forum, there is no bar for the petitioners to approach this Court and this Court is not precluded from examining the case sought to be made out by the petitioners for grant of reliefs as prayed in this writ petition. Apart from the said reasoning, the Green Tribunal is not situated within the Odisha State, the petitioners have to move to Delhi where it is at present functioning. Apart from the said reasoning, the Green Tribunal is not situated within the Odisha State, the petitioners have to move to Delhi where it is at present functioning. Petitioners being rustic villagers will have no access to justice and will be affected adversely, if the arbitrary and illegal action on the part of the NALCO is allowed to continue. Therefore, the petitioners cannot be asked to go to the Green Tribunal situated at Delhi, which will cause economic hardships on them. Besides, it is relevant to accept the contention urged on behalf of the petitioners that this writ petition is maintainable and this Court is required to adjudicate rights of the parties in this PIL as public interest litigation jurisdiction is conferred upon this Court by the Apex Court in catena of judgments rendered by the Constitution Bench judgments of the Supreme Court, the latest judgment on the point is AIR 2010 SC 2050 (State of Uttaranchan v. Balwant Singh Chaufal), wherein the Apex Court after referring to various Constitution Bench judgment has held that the bona fide and genuine PIL is required to be entertained by this Court being the Constitutional Court for protection of the fundamental, constitutional and human rights of large number of people who have no access to justice, if it is shown that public interest is affected and there is violation of the Rule of Law. 34.In view of the Constitution Bench judgments of the Supreme Court referred to in the case of State Uttaranchal v. Balwant Singh Chaufal, the contention urged by the learned counsel for the petitioners that this petition is maintainable and the same need not be transferred to the Green Tribunal at Delhi as the said decision has no application to the fact situation of the case on hand has substance. Accordingly, the first point is answered in favour of the petitioners and against the NALCO. 35.Further, a careful reading of the provisions of Sections 14, 15 and 29 makes it very clear that the jurisdiction of the Civil Court in relation to the claims of the public litigant for violation of the environmental laws claiming compensation is taken away and conferred upon the Green Tribunal established under the provisions of the Green Tribunal Act. 35.Further, a careful reading of the provisions of Sections 14, 15 and 29 makes it very clear that the jurisdiction of the Civil Court in relation to the claims of the public litigant for violation of the environmental laws claiming compensation is taken away and conferred upon the Green Tribunal established under the provisions of the Green Tribunal Act. Section 29 of the said Act makes it expressly clear that the Civil Court will not have any jurisdiction with effect from the date of establishment of the Tribunal under the aforesaid Act. The said provisions abundantly make it very clear that the civil Court’s jurisdiction has been taken out and conferred upon the Green Tribunal that what is referred to in the judgment passed in the Bhopal Gas Peedith Mahila Udyog Sangathan and others v. Union of India and others referred to supra. In the said decision nothing is stated with regard to the writ petitions filed by the petitioners independently and on behalf of the public complaint in violation of their fundamental and statutory rights. Therefore, the request made by the learned Senior Counsel Mr. R.K. Rath to transfer the matter from this Court to the Green Tribunal cannot be accepted. 36.Point Nos.2, 3 and 4 are interrelated and they are answered together in favour of the petitioners by assigning the following reasons. The Apex Court in the cases of A.P. Pollution Control Board and Vellore Citizen Welfare Forum and also in M.C. Meheta referred to supra has held that the Doctrine of Precautionary Principle is required to be recognized which has been explained in the following manner : “(i) Environmental measure by the State Government and the Statutory Authority must anticipate and prevent and attack the cases of environmental degradation; (ii)Where there are threats of serious and irresponsible damages, lack of scientific certainly should not be used as a reason to postponing measure to prevent environmental degradation; (iii)The “onus proof” is one the actor or developer/industrialist to show that his action is environmentally benign”. 37.The aforesaid principle has been rightly relied upon by the learned counsel for the petitioners. It is also worthwhile to extract certain paragraph from the judgment in A.P. Pollution Control Board’s case (paras-35, 36, 37) and Vellore Citizen Welfare Forum’s case (para-11) and also in M.C. Meheta’s case (para-9). 37.The aforesaid principle has been rightly relied upon by the learned counsel for the petitioners. It is also worthwhile to extract certain paragraph from the judgment in A.P. Pollution Control Board’s case (paras-35, 36, 37) and Vellore Citizen Welfare Forum’s case (para-11) and also in M.C. Meheta’s case (para-9). The Apex Court at paragraphs-35, 36 and 37 in A.P. Pollution Control Board’s case has observed as follows : “Para-35: It is to be noticed that while the inadequacies of science have led to the ‘precautionary principle’ in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injuries effect of the actions proposed is placed on those who want to change the status quo (Wynne, Uncertainty and Environmental Learning, 1 Global Envtl. Change 111 (1992) at p. 123). This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the change would be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less-polluted State should not carry the burden of proof and the party who wants to alter it, must bear this burden (See James M. Olson, Shifting the Burden of Proof. 20 Envtl. Law p.891 at 898 (1990). (Quoted in Vol.22 (1998) Harv. Env. Law Review p.509 at 519, 550). Para-36 : The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment. (See Report of Dr. Sreenivasa Rao Pemmaraju, Special Rapporteur, International Law Commission, dated 3-4-1998. para 61). Para-37 : It is also explained that if the environmental risks being run by regulatory inaction are in some way “uncertain but non-negligible”, then regulatory action is justified. This will lead to the question as to what is the ‘non-negligible risk’. In such a situation, the burden of proof is to be placed on those attempting to alter the status quo. They are to discharge this burden by showing the absence of a “reasonable ecological or medical concern. That is the required standard of proof. This will lead to the question as to what is the ‘non-negligible risk’. In such a situation, the burden of proof is to be placed on those attempting to alter the status quo. They are to discharge this burden by showing the absence of a “reasonable ecological or medical concern. That is the required standard of proof. The result would be that if insufficient evidence is presented by them to alleviate concern about the level of uncertainty, then the presumption should be operate in favour of environmental protection. Such a presumption has been applied in Ashburton Acclimatisation Society v. Federated Farmers of New Zealand, (1988) 1NZLR 78. The required standard now is that the risk of harm to the environmental or to human health is to be decided in public interest, according to a ‘reasonable person’ test. (See Precautionary Principle in Australia by Charmian Barton) (Vol.22) (1998) Harv Env. L. Rev.509 at 549).” The Apex Court at paragraphs-11 in Vellore Citizen Welfare Forum’s case has observed as follows : Para-11 : Some of the salient principles of “Sustainable Development”, as culled out from Brundtland Report and other documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protraction, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Cooperate, Eradication of Poverty and Financial Assistance tot he developing countries. We are, however, of the view that “The Precautionary Principle” and “The Polluter Pays Principle” are essential features of “Sustainable Development”. The “Precautionary Principle”- in the context of the municipal law - means : (i)Environmental measures - by the State Government and the statutory authorities - must anticipate, prevent and attack the causes of environmental degradation. (ii)Where there are threats of serious and irrevocable damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. (ii)Where there are threats of serious and irrevocable damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. (iii)The “onus of Proof” is on the actor or the developer/industrialist to show that his action is environmentally benign.” (Emphasis laid) 38.It is also an undisputed fact that the construction of the proposed of Ash Pond Stage-IV for the purpose of filing the ash by the NALCO is without obtaining the consent from the State Pollution Control Board as required under the notification dated 14.9.2006 referred to supra issued under Sub-section (2) of Section 3 of the Environmental (Projection) Act, 1986 read with Clause (o) of Sub-rule 3 of Rule 5 of the rules framed thereunder and there is violation of the Environmental (Projection) act, 1986. Therefore, the petitioners are justified in approaching this Court complaining that there is a statutory violation on the part of the NALCO. The Pollution Control Board as well as the NALCO has not acted as per the notification. The condition imposed by the Board upon the NALCO has not been complied with by it and it has started construction of Stage-IV Ash Pond and the Board has not taken any step to stop it. The NALCO has violated the terms and conditions of the notification particularly the general conditions. Further, before issuing the Annexure-A to the Additional Affidavit, the State Pollution control Board, Odisha has not conducted public hearing giving opportunity to the residents of the nearby villagers of the proposed construction Ash Pond Stage-IV thereby their right of opportunity of hearing as provided under the provisions of the Water (Prevention & Control of Pollution) Act, 1974 and the Air (Prevention & Control of Pollution) Act, 1981 and the Environmental (Protection) Act of 1986 has been affected. 39.Apart from the said reasoning, the petitioners have rightly placed reliance upon the judgment of the Supreme Court in the case of Vellore Citizen Welfare Foru’s case, wherein it is held by the Apex Court that the industries are essential for economical development, but measure should be taken to reduce the risk to the community by taking necessary steps or locating such industries in a manner that would pose the least risk or danger to the community and maximizing safety requirement on such industries. (Emphasis laid by this Court) 40.Similarly, in the case of M.C. Meheta v. Kamal Nath and others, AIR 2000 SC 1997 , the Apex Court has held that any disturbance of basic required elements namely air, water and soil which are necessary for life, if hazardous to life of the citizens, precautionary measures are required to be taken by the State in anticipation to prevent the attack on the cause of environmental degradation. Further, the Apex Court in the case of Indian Council for Enviro-Legal Action of Union of India (supra), has taken the same view holding that if an industry is established without requisite permission and/or violating the basic norm and in blatant disregard of law to the detriment of citizens’ “right to life”, the Court can interfere and rule of absolute liabilities applies in such cases being violative of Article 21 of the Constitution of India. 41.The aforesaid principles laid down by the Supreme Court in the above referred cases with all fours are applicable to the fact situation of the present case for the reason that, according to the inspection report of the State Pollution Control Board, the land in question in situated 50 meters away from the boundary of the proposed Ash Pond Badataila Sahi of mouza Balaram Prasad in the district of Angul, where 15 to 20 families reside. In respect of land in question the notification under Section 14 (1)(a) of the IDCO Act has not been issued by the State Government declaring the area as an industrial area for establishment of industries. Therefore, there is statutory violation on the part of the State Pollution Control Board in issuing the consent order for construction of Ash Pond IV. The action of the State Pollution Control Board permitting the NALCO for construction of the proposed Ash Pond Stage-IV and issuing the consent order dated 23.12.2011 produced at Annexure-A to the Additional Affidavit filed on behalf of the State Pollution Control Board is bad in law. That apart, learned counsel for the petitioners placed reliance upon certain materials available on the Internet, wherein physicians have opined under the heading “Physicians for Social Responsibility” that coal ash is hazardous to human health. It also opined therein that most coal ash comes from coal-fired electric power plants. That apart, learned counsel for the petitioners placed reliance upon certain materials available on the Internet, wherein physicians have opined under the heading “Physicians for Social Responsibility” that coal ash is hazardous to human health. It also opined therein that most coal ash comes from coal-fired electric power plants. The coal ash also can cause heart damage, lung disease, respiratory distress, kidney disease, reproductive, gastrointestinal illness, birth defects and impaired bone growth in children. Further, 1 in 50 has the chance of getting cancer from drinking arsenic-contaminated water. Arsenic is one of the most common and most dangerous pollutants from coal ash. The EPA also found that living near ash ponds increases the risk of damage from cadmium, lead, and other toxic metals. Further, it is opined that coal ash recycling poses health risk, especially where the ash is exposed to weather for example when sprinkled as cinders on snowy roads, spread as agricultural fertilizer or used as a land fill or to fill abandoned mines. 42.Further, another newsletter i.e. ENVIS NEWSLETTER published by the Centre for Environmental Studies (Forest & Environment Department, Government Orissa) on Flyash Management available on the internet website reveals that the problem with fly ash lies in the fact that not only does its disposal requires large quantities of land but also water and energy. Its fine particles, if not managed well, can become airborne. Such a huge quantity does pose challenging problems, in the form of land used, health hazards and environmental damages. 43.In view of the aforesaid hazards to human health as extracted above from the internet materials uploaded on the website by the physician for social responsibility, we have to come to the conclusion that the construction of the fly-has pond near the village in question is not only harmful for human health, fertility but also develop various other ailments which will create health hazard and water and air will be polluted and the occupation of agriculture of the villagers will be adversely affected. Hence, the proposed construction of Stage-IV Ash Pond on the basis of consent produced at Annexure-A along with the affidavit of the Pollution Control Board is in contravention of the fundamental and statutory rights of the residents of the area in question and contrary to the judgments of the Supreme Court on the aspects of the doctrine of precautionary principle required to be taken by the State Pollution Control Board. Instead of taking such pollution control measures, the State Pollution Control Board has granted consent order without public hearing and examining the danger which will be encountered by the residents of the village in question near the proposed construction of Stage-IV Ash Pond thereby it has acted arbitrarily and the action of the NALCO for construction of the Ash Pond will affect the ecology of the area in question. Hence, we answer point Nos.2, 3 and 4 in favour of the petitioners and against the NALCO. Therefore, the petitioners are entitled for the relief as prayed for in the writ petition. Accordingly the writ petition is allowed. Rule issued. We direct the NALCO not to construct the Ash Pond IV in the land in question. If already constructed, the same shall not be used as Ash Pond by the NALCO. The other opposite parties in this case particularly, the State Pollution Control Board shall see that this order is implemented by the NALCO. S.K. MISHRA, J.I agree. Petition allowed.