Give Alternate Accommodation And Pay Transit Rent With Security Deposit To Project Affected Persons Of Mahul: Bombay HC Directs State [Read Judgment]

Court noted that the air pollution in the Mahul area was "alarming" and the air was filled with carcinogens (substance that causes cancer).

Division bench of Chief Justice Pradeep Nandrajog and Justice Bharati Dangre further held that no family that is required to be rehabilitated as a consequence of slum clearance, would be shifted to the PAP 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.

Case Background

Over the past few decades, Mahul become home to 9 major industrial units, including refineries of the HPCL, BPCL, Rashtriya Chemicals and Fertilizers Ltd., the Bhabha Atomic Research Centre as well as private industrial units such as the Tata Power Thermal Power Plant, Sealord Containers and Aegis Logistics.

The residents of Eversmile PAP colony challenged the allotment of the said tenements after many complained about respiratory problems in the area, apart from other health issues.

The said PAP colony comprises of 72 buildings and 17,205 tenements. It is separated from the BPCL refinery by a 15 metre road. Within a 300 meters radius of the Eversmile PAP colony, is Sealord Containers – a logistics company serving oil, gas and chemical industries by providing containers and a total of 10 storage terminals for high volumes (5,000-10,000 KL each) of chemicals, including hazardous chemicals, which are generally brought in by sea and unloaded at the Pir Pau jetty.

Bordering the colony in its southern end is the Tata Power Thermal Energy Plant. BARC, which is India's premier nuclear research centre, is located beyond the BPCL refinery and is the largest nuclear research reactor in the country and India's primary generator of weapons-grade plutonium-bearing spent fuel for India's nuclear weapons program.

According to the petitioners, location of the Eversmile Colony poses three issues that render the Colony uninhabitable. The first is that the proximity of the refineries to the 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.

The second, is that the presence of residential premises such in close proximity of industrial belts poses a threat to the security of the industries and refineries, as well as to the safety of the residents themselves. Thirdly, the Petitioners have also contended that the PAP colony is bereft of hygienic conditions and basic amenities, including schools and medical centres.

National Green Tribunal's Judgement

Court referred to the judgment of the Western Zone Bench of the National Green Tribunal dated December 18, 2015 in the matter of Charudatt Pandurang Koli v M/s Sea Lord and Ors. The said judgment forms the foundation of the petitioners' arguments about the toxic air pollution in the region.

However, the difference is that the aforesaid proceedings were initiated by the local residents of Ambapada and Mahul villages who were aggrieved by the consequences of the air pollution on their health. They were not PAPs, instead, they had been residing in Mahul, close to the site of the PAP colony, for several decades.

A joint report was prepared by the MPCB, CPCB and NEERI dated January 1, 2019 forming part of the proceedings before the National Green Tribunal, records an alarming level of air pollution, particularly in the form of Volatile Organic Compounds (VOC). Also, Sealord Containers along with BPCL and HPCL refineries were identified by the NGT to be the primary pollutants in Mahul, Chembur.

Thereafter, State of Maharashtra challenged the said judgment after three years in 2018. This was despite accepting the said judgment and initiating measures to comply with NGT's orders.

State government cited a report by NEERI to argue before the Supreme Court that pollution the area has decreased and therefore PAPs will not have difficulty in staying there.

On March 5, 2019 Supreme Court held that NGT's judgment has attained finality, and therefore is beyond the purview of being challenged in judicial proceedings, a perusal of contemporaneous reports prepared by three government agencies, namely the Maharashtra Pollution Control Board, the Central Pollution Control Board and NEERI shows that air pollution in Mahul continues to be disturbingly high and to this day, still poses a threat to human life.

Judgment

Court noted-

"As per the data collected and analysed by expert environmental agencies within the government, it is an admitted position that the air pollution in Mahul, specifically in terms of the presence of the VOCs, is far higher than the permissible standards allowed as per the odour monitoring threshold, the ambient air quality standards and other international standards regulating the presence of VOCs in the air."

The bench relied upon a judgment of the Bombay High Court wherein the decision of apex court in Oswal Agro Mills Ltd. Vs. Hindustan Petroleum Corporation Ltd. & ors was cited. Court said

"It is therefore evident that residential premises in the vicinity of such refineries can pose multi-faceted security risks, which are not only restricted to the health of the residents nearby and the absolute liability imposed on the refineries, but a terrorist attack using these refineries as targets could lead to colossal destruction within the city, that could debilitate a large number of people living around the Chembur region."

Court also cited Article 11(1) of the International Covenant on Economy, Social and Cultural Rights (ICESCR), which states-

"The State parties must recognize the right for adequate standard of living, including adequate food, clothing and housing for continuous improvement of living conditions. The State parties will take appropriate steps to ensure the realization of this, recognizing to this effect the essential importance of international cooperation based on free consent."

Finally, the bench ruled that no family required to be rehabilitated as a consequence of slum clearance would be shifted to the PAP 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 and till alternative accommodation is made available they would be paid transit rent with security deposit.

Court has granted the State 12 weeks' time to comply with the said directions.

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