Kalyaneshwari vs U.O.I. & Ors

Kalyaneshwari ...Petitioner

Versus

Union of India & Ors. ...Respondents

JUDGMENT

Swatanter Kumar, J.

1. This petition under Article 32 of the Constitution of India has

been filed by the petitioner Kalyaneshwari (a registered Society),

through its Chairman, with a prayer that a writ of mandamus be

issued directing the Union of India and other respondent-States to

immediately ban all uses of asbestos in any manner whatsoever;

further that a committee of eminent specialists be constituted to frame

a scheme for identification and certification of the workers/victims

suffering from asbestosis or other asbestos related diseases or

cancer. The petitioner also prayed that the respective Governments

should be directed to identify the workers/victims in the respective

States and Union Territories and to provide them due treatment as well as to take measures to prevent harmful effects of asbestos in the

factories or establishments where such activity is being carried out

and also to initiate criminal proceedings against all the responsible

persons including the owners of such factories, organizations and

associations for infringing the right to life of the asbestos victims.

2. The above writs/directions have been prayed for on the

premise that petitioner, Kalyaneshwari, is a non-governmental

organization, registered under the Societies Registration Act XXI of

1860. It is a voluntary organization allegedly promoted to serve the

general public without distinction of caste or religion and working for

the protection of consumers' interest. This Court in the case of

Consumer Education and Research Centre v. Union of India [(1995) 3

SCC 42)] accepted the well established adverse effects of asbestos

including the risk beyond the work place and held as under:

"17. It would thus be clear that disease occurs wherever the exposure to the toxic or carcinogenic agent occurs regardless of the country, the type of industry, job title, job assignment or location of exposure. The disease will follow the trail of the exposure and extend the chain of carcinogenic risk beyond the workplace. It is the exposure and the nature of that exposure to asbestos that determines the risk and the diseases which subsequently result. The development of the carcinogenic risk due to asbestos or any other carcinogenic agent, does not require a continuous exposure. The cancer risk does not cease when the exposure to the carcinogenic agent ceases, but rather the individual carries the increased risk for the remaining years of life..."

3. The petitioner alleges that developed countries all over the

world have drastically reduced the manufacture of asbestos and

some of them have even banned different types of asbestos. In India,

the use of this carcinogenic material is increasing every year

approximately at the rate of 12% and the petitioner drew attention of

the concerned authorities towards this issue and requested them to

take stringent actions, but to no effect. The World Trade Organisation

considered this aspect in the EC-Asbestos case, [WT/DS135/ABR]

adopted on 5th April, 2001 where its appellate body observed that

available scientific data reveals that a high mortality rate persists

despite the so called `safe' use of Chrysolite Asbestos. Surveys

carried out more than 30 years after the introduction of controlled use

policy in United Kingdom indicate a significant increase in deaths

from Lung Cancer and Mesothelioma, not only among the workers

but even to the families residing nearby such plants. Citing the

example of some countries and the measures being taken by different

organizations, request was made for banning import, manufacture

and use of asbestos and it is averred that `controlled use' is hardly

workable. It is also averred by the petitioner that in most parts of the

world, there was a drastic reduction in manufacture and use of asbestos. In fact, efforts are being made to ban on use of asbestos in

any form. On the contrary, in India, use of asbestos was permitted

indiscriminately on the premise that its controlled use is absolutely

safe. There is a large number of victims in India who are suffering

from various effects of asbestos in one form or the other. The

petitioner claims to have identified five hundred plus victims from five

different States, namely, West Bengal, Rajasthan, Jharkhand, Andhra

Pradesh and Tamil Nadu. The petitioner claims that in order to find

out the exact health scenario of asbestos workers, it got 14 direct

workers of an asbestos unit examined by qualified occupational

health doctors and the results were shocking, inasmuch as 13

workers were suffering from asbestosis with five workers being in

advanced stage. Though these workers are covered under State ESI

Scheme, no proper and adequate treatment is being provided to

them. Thousands of poor and ignorant people in Udaipur District in

Rajasthan were engaged in asbestos mining before the Ministry of

Mines decided in the year 1996 not to issue or renew any asbestos

mining licenses in India. Still today, some of them are engaged in

illegal mining, which they do at the instance of local asbestos

products manufacturers. It is also averred by the petitioner that there

is complete failure on the part of the manufacturers in providing safety equipments to workers, regular health check-up, monitoring air borne

dust and maintaining health register of the workmen. The petitioner

also claims to have already documented more than 500 victims

suffering from asbestos related diseases from the above-noted five

States and, upon examination by well-known chest specialists, they

have been identified as suffering from such diseases. The cost of the

treatment is quite high. First, no compensation has been paid to these

victims and second, even if some compensation was paid it was too

meagre to meet the expenses. All these victims are suffering for no

fault of theirs but due to exposure to asbestos over which, they hardly

have any control. There is no law in place which directs payment of

compensation to such victims. No medical records are being

maintained to regulate the treatment of victims of Asbestosis. The

carcinogenic properties of asbestos including Chrysotile or White

Asbestos, are well-established and the same is a universally

accepted fact. Despite overwhelming evidence, asbestos which has

been banned in other countries is still being manufactured, imported

and used in India and the Government has failed to take proper

action which compelled the petitioner to approach this Court by filing

the present Writ Petition in larger public interest as there is apparent

violation of Articles 14 and 21 of the Constitution of India.

4. This petition was filed in the year 2004. Thereafter, notice

has been issued to the respondents, various affidavits have been filed

and the matter has been heard from time to time. One of the main

objections raised by the respondents and, particularly, respondent No.

37 i.e. Asbestos Cement Product Manufacturers Association is that

the present Writ Petition is an abuse of the process of the Court and

has been instituted at the behest of a business rival. The petition

lacks bona fide and is intended to take unnecessary advantage of the

proceedings before the Court. This issue, to a large extent, has been

dealt with by a Bench of the Gujarat High Court in B.K. Sharma v.

Union of India, [AIR 2005 Guj 203]. Yet, the present petition has been

filed with the intention of creating impediment in the establishment

and running of the industrial units in various States dealing with

production or manufacture of asbestos in accordance with law and

without infringing any right of others whatsoever. This issue is of

some significance and we shall proceed to deliberate on the same

and record our conclusion at a later stage. First, we would like to deal

with the merits of the case and what directions, if at all, can be issued

by this Court.

5. Several States, Union Territories as well as Union of India

have filed separate affidavits. In the affidavit filed on behalf of the Union of India, it is stated that the organized sector in India uses only

imported variety of Chrysotile asbestos which is considered to have

least harmful impact on the health of workers engaged in the

manufacture of asbestos products and sufficient precautionary

measures are being taken by the industry to protect the workers from

excessive exposure to the hazardous impact of asbestos fibre.

Meeting the contentions raised by the petitioner as aforenoticed, it is

submitted on behalf of the concerned respondents that only selective

references have been made by the petitioner to unnecessary inflate

the impact of asbestos fibre on public health. No recognition has

been given by the petitioner to the strict emission norms prescribed

for the industries manufacturing asbestos products by Ministry of

Environment and Forest and other efforts undertaken by the Ministry

have also not been referred to by the petitioner. Prescription of

stringent emission norms is one of the main effort made by the

concerned Ministry. The prescribed norms in the Environment

(Protection) Act, 1986 are as follows :

"These standards are 2.0 mg/Nm3 of total dust and 4 fb/cc of pure asbestos material, now being revised to 0.5fb/cc. Ministry of Labour has revised the permissible work place emission norms vide notification dated April 2001 bringing it down to 1 fb/cc from 2 fb/cc. The report of WHO in this regard has been quoted out of context. In the said report it has been clearly stated that further research is required to determine the adverse impact of Asbestos Fibre on human health."

6. The asbestos product only contains 8-10% asbestos fibre

and the rest is cement (50%), clay (30-35%) and fly ash, wood, pulp,

etc. which are not considered harmful for human health. Even here

the asbestos fibres are locked with cement matrix particles and there

is no scope for its disintegration/spreading in the air in normal

circumstances. Referring to the proceedings before the Calcutta High

Court, the Union of India submitted that the Calcutta High Court

refused to impose any ban on the manufacture and use of asbestos

in Writ Petition No. 412 of 2002, copy of which has been placed on

the record. It is the stand of the Union of India that the petitioner has

not furnished any details of the industries which are working contrary

to law and where the workers are exposed to such hazardous health

conditions. It is only then that the Government can take action in

accordance with law and the petition, as such, lacks specific

particulars.

7. States have taken different stands in their respective

affidavits. However, all of them have stated that appropriate measures

are being taken to ensure working of such units in accordance with

law. In the affidavit filed on behalf of the State of Kerala, it is averred

that there is only one factory carrying on manufacture of asbestos cement sheets and allied products in the entire State. This factory

has obtained licence under the provisions of the Factories Act. It is

further pointed out that this factory was established with fully

automatic fibre handling system in the year 1986. After that, no

asbestos manufacturing factory has been established in the State.

While referring to the judgment of this Court in the case of Consumer

Education and Research Centre (supra), it is averred that strict

instructions were issued to the Inspector of Factories and Boilers to

take urgent steps for implementation of the directives of this Court.

There is constant watch/review upon the standards of permissible

exposure limit. Value of fibre/cc should be in line with the international

standards and it would not exceed 0.1 fibre/cc at any time in the last

three years. Some states like Himachal Pradesh, Tripura, Mizoram,

Sikkim, Arunachal Pradesh and Manipur have stated that there is no

asbestos factory within their territory.

8. State of Tamil Nadu in its affidavit has averred that only 13

factories which are handling Asbestos have been brought under the

purview of Factories Act, 1948 out of which 3 factories are not

working for the past 5 years and in the remaining 10 factories

"Membrane Filter Test" is regularly being conducted and the asbestos

fibre is found to be within the permissible limits. The workmen of these factories are covered under the Workmen Compensation

Act/Employees State Insurance Scheme/Group Insurance of

Insurance Company. Thus, their interests are well protected. State of

Bihar in its affidavit has stated that presently there is no industrial unit

involved in manufacturing asbestos in the State. The use of asbestos

product in the State is limited and is not to an extent that the

secondary user of asbestos is likely to suffer from Mesothelioma

fatalities attributed to asbestos. On the contrary, it also appears from

the records that there are 22 cases of asbestosis in Gujarat and three

cases of Mesothelioma in Andhra Pradesh. Out of these, persons

suffering from Asbestosis or other diseases in Gujarat have not been

given any compensation and their cases are pending, while the three

persons suffering from Mesothelioma in Andhra Pradesh have been

paid the compensation. Thus, it is a matter which essentially has to

invite the attention of the Court.

9. From the above narrated factual matrix, giving rise to this

Public Interest Litigation, it is clear that first, the Court has to examine

whether any statutory, fundamental or other right of any person is

being violated and an activity which is prohibited under law is being

carried out i.e. production and manufacture of asbestos and allied

products? If so, whether the Government is actively permitting such illegal activity? Second, whether in any case this Court can, in law,

direct the banning of this activity, if not, what directions can be issued

by the Court?

10. From the contents of the Writ Petition filed before this Court,

it is clear that there is no law enacted so far which requires banning of

any activity in regard to asbestos at the stage of mining, manufacture

or production. Of course, there can be no doubt that uncontrolled

utilization of asbestos, in any form, can be hazardous to human

health. The reply affidavits filed by different States as well as Union

of India clearly bring out that such activity, wherever is being carried

out, is in accordance with specified parameters and under due

supervision. The Writ Petition filed does not provide any data or

detailed facts in relation to such uncontrolled or unauthorized activity

of manufacture of asbestos being carried out in any State. Merely

stating that a few hundred workers were subjected to medical

examination and were found to be affected by inhalation of asbestos

particles may not be sufficient for this Court to accept it as a general

proposition that there is hazardous use of asbestos all over the

country, particularly, in view of the fact that such activity is being

carried out at the mining or industrial level in different parts of the

country. This Court had the occasion to examine this matter at great length in the case of Consumer Education and Research Centre

(supra) wherein it issued certain directions. Once that judgment had

been pronounced, there is hardly any occasion for the petitioner to

institute this Writ Petition as an independent proceeding. The

petitioner has made no effort to collect any information/data from

various States as to whether the directions issued by the Court in that

matter are being strictly implemented or not at all. On the contrary, it

is the stand of the States as well as Union of India that the directions

issued by this Court are being strictly adhered to. The parameters

and norms have been specified and the industries using such raw

materials are being constantly watched, in relation to all the functions

of the factory, specially keeping in view the environment and health

status of the workers and nearby residents. Even subsequent to the

filing of the present petition, the petitioner has not put in any effort to

seriously rebut the averments made in various affidavits filed by the

States.

11. In Jayjit Ganguly v. Union of India, [CWP No. 412 of 2002

decided on 15th December 2004], a Division Bench of the Calcutta

High Court also noticed that there is no dispute that asbestos fibre is

hazardous to health and continuous exposure to certain types of

such fibre can also prove to be fatal as it does not dissolve and the same is so thin that it can be inhaled and deposited in lungs. While

noticing these facts, the Court referred to the judgment of this Court in

the case of Consumer Education and Research Centre (supra) and

the report of the Committee appointed by the Union of India to

conduct study of asbestos fibre products. Relying upon the

Committee's report, the Court noticed that there was no data

available to demonstrate as to what is the ratio of death directly

attributable to asbestos fibre in relation to the products made

available to the consumers in India. The Court, while dismissing the

Writ Petition held as under:

"During the course of hearing we came to learn that in 2001 yet another Committee was constituted by the Union of India through the Ministry of Environment for the purpose of devising the method of clearance for new or expansion of asbestos based products and to evolve a policy strategy to deal with use of asbestos. We are told that the suggestions given by the said Committee have implemented by providing stringent emission norms in terms of the Environment Protection Act, 1986 and work zone standards under the Factories Act, 1948. Therefore, it appears to us that the said committee too was involved with the matters pertaining to mining and manufacture of asbestos fibre and had no occasion to deal with the hazards of user of products manufactured from asbestos fibre. In such situation, we do not think that it would be appropriate for us to issue any direction as has been prayed for in the instant writ petition for we are unable to weigh the advantages of having asbestos based products and not having the same, in the absence of appropriate datas therefore. One thing, however, is clear that a large number of small scale industries which are normally labour incentive industries are depending on asbestos as their raw material for manufacture of their end product."

12. Once the matter has been dealt with and pronounced upon

by this Court by giving a detailed judgment containing directions, we

see no reason for filing the present petition. However, since the

Petition has been pending for a considerable time before this Court,

we will prefer to discuss the merits thereof. As already noticed, there

is no law banning the use of asbestos in various manufacturing

processes despite its adverse effects on human health. It is not for

this Court to legislate and ban an activity under relevant laws. Every

factory using or manufacturing asbestos, obtains a licence under the

Factories Act as well as permission from the competent authorities

including permission under the Environmental Laws. Once all the

laws in force have been complied with and directions of this Court as

contained in the case of Consumer Education and Research Centre

(supra) are carried out in their true spirit, we see no reason as to why

this Court, in exercise of its extraordinary jurisdiction under Article 32

of the Constitution, should ban such an activity when admittedly large

number of families are dependent upon such processes. What has to

be ensured is that proper precautions are taken. The Court had

already made ILO guidelines as one of the safety measures to be

complied with by the industries and it is expected of each State Government and the Union Government to ensure safe and

controlled use of asbestos. What is required is better supervision and

regulatory control rather than banning of the activity. Lack of specific

data as well as vague averments in the Writ Petition amongst others

are the grounds on which we should decline to pass the mandamus

prayed for. The affidavits filed by the official respondents, including

Respondent No. 37, specifically point out `safe and controlled' use of

asbestos in manufacturing processes. The prayer with regard to

constitution of a committee comprising of specific persons is, again,

not a matter that falls within the realm of jurisdiction of this Court. It is

for the expert bodies in the concerned Ministries which should

regulate proper measures in this regard to ensure proper utilization of

asbestos and raw materials in relation to various manufacturing

activities, if they are being carried on in accordance with law and

without endangering the life of the people.

13. It has been averred in one of the affidavits filed by the

petitioner itself that the Government had introduced the White

Asbestos (Ban on Use and Import) Bill, 2009 (hereinafter referred to

as, `the Bill'), which is pending in the Upper House. Thus, there could

be no doubt that it is a matter which squarely falls in the domain of

the legislature and the legislature in its wisdom has taken steps in the direction of enacting necessary law. Issuance of any direction or

formulation of any further policy by this Court will obviously be a futile

exercise. There could hardly be any justification for banning,

completely or partially, of the activity of manufacturing of asbestos

and allied products in face of the above admitted position.

14. In the matter relating to secondary exposure of workers to

asbestos, though the grounds have been taken in the Writ Petition

without any factual basis, again in the Rejoinder filed to the counter

affidavit of respondent No.37, this issue has been raised by the

petitioner in detail. In the earlier judgment of this Court in the case of

Consumer Education and Research Centre (supra), hazards arising

out of primary use of asbestos were primarily dealt with, but certainly

secondary exposure also needs to be examined by the Court. In that

judgment, the Court had noticed that it would, thus, be clear that

diseases occurred wherever the exposure to the toxic or carcinogenic

agent occurs, regardless of the country, type of industry, job title, job

assignment or location of exposure. The diseases will follow the trail

of the exposure and extend the chain of the carcinogenic risk beyond

the work place. In that judgment, the Court had also directed that a

review by the Union and the States shall be made after every ten

years and also as and when the ILO gives directions in this behalf consistent with its recommendations or conventions. Admittedly, 15

years has expired since the issuance of the directions by this Court.

The ILO also made certain specific directions vide its resolution of

2006 adopted in the 95th session of the International Labour

Conference. It introduced a ban on all mining, manufacture, recycling

and use of all forms of asbestos. As already noticed, serious doubts

have been raised as to whether `controlled use' can be effectively

implemented even with regard to secondary exposure. These are

circumstances which fully require the concerned quarters/authorities

in the Government of India as well as the State Governments to

examine/review the matter in accordance with law, objectively, to

achieve the greater health care of the poor strata of the country who

are directly or indirectly engaged in mining or manufacturing activities

of asbestos and/or allied products.

15. As already noticed above, the Government has already

presented the Bill in Rajya Sabha. The statement of objects and

reasons of this Bill specifically notices that the white asbestos is

highly carcinogenic and it has been so reported by the World Health

Organisation. In India, it is imported without any restriction while

even its domestic use is not preferred by the exporting countries.

Canada and Russia are the biggest exporters of white asbestos. In 2007, Canada exported 95% of the white asbestos, it mined out of

which 43% was shipped to India. In view of these facts, there is an

urgent need for a total ban on the import and use of white asbestos

and promote the use of alternative materials. The Bill is yet to be

passed but it is clearly demonstrated that the Government is required

to take effective steps to prevent hazardous impact of use of

asbestos.

16. In light of the above discussion, we do not see any reason to

grant any of the prayers made in the Writ Petition except to the extent

that we would issue the following directions while disposing of the

Writ Petition:

a. Ministry of Labour in the Union of India and Department of

Industries and Labour in all the State Government shall

ensure that the directions contained in the judgment of this

Court in the case of Consumer Education and Research

Centre (supra) are strictly adhered to;

b. In terms of the above judgment of this Court as well as

reasons stated in this judgment, we hereby direct the Union of

India and the States to review safeguards in relation to

primary as well as secondary exposure to asbestos keeping in mind the information supplied by the respective States in

furtherance to the earlier judgment as well as the fresh

resolution passed by the ILO. Upon such review, further

directions, consistent with law, shall be issued within a period

of six months from the date of passing of this order;

c. Further we direct that if Union of India considers it proper and

in public interest, after consulting the States where there are

large number of asbestos industries in existence, it should

constitute a regulatory body to exercise proper control and

supervision over manufacturing of asbestos activities while

ensuring due regard to the aspect of health care of the

workmen involved in such activity. It may even constitute a

Committee of such experts as it may deem appropriate to

effectively prevent and control its hazardous effects on the

health of the workmen;

d. The concerned authorities under the provisions of

Environment (Protection) Act, 1986 should ensure that all the

appropriate and protective steps to meet the specified

standards are taken by the industry before or at the time of

issuance of environmental clearance.

17. However, we find that it is imperative for the Court to issue

the above directions in order to strike a balance between the health

hazards caused by this activity on the one hand and ground reality

that a large number of families, all over the country, are dependent for

their livelihood on this activity, on the other. We certainly are not

entering into the arena of legislature and are passing above directions

in furtherance to the law laid down by this Court which, in terms of

Article 141 of the Constitution, is binding on all concerned and to

ensure effective and timely implementation of the provisions of the

Environment (Protection) Act. These directions must be read and

construed in comity with the proposed legislation and are in no way

detrimental to the same.

18. Before parting with this file we have to deal with one of the

main objections raised by the respondents, as noticed above,

particularly, Respondent No. 37 that the present petition is a result of

business rivalry and has been filed by the petitioner at the behest of

other industries and the entire Writ Petition lacks bona fide and is

complete abuse of process of law. The petitioner NGO claims to be a

registered body under the Societies Registration Act and non-profit

organization, inter alia, working for protection of the environment and

other public welfare activities. It also aims at protecting various interests of the common man particularly those who have no means

and/or access for redressal of their grievances. It is concerned about

the health hazards to workmen resulting from manufacture and use of

asbestos and, thus, it prays for complete ban on such activity. As

already noticed, this petition was defended by different respondents

i.e. the State Government, Union of India and Association of Asbestos

Cement Product Manufacturers. In light of this objection and the

material placed on record, a Bench of this Court passed the following

Order on 13th August, 2010 :

"Kalyaneshwari has filed this writ petition seeking imposition of ban and payment of compensation to the industrial workers working in the manufacture, import and use of asbestos. This petition was filed as far back on 5 th May, 2004. In the case of B.K. Sharma v. Union of India the Gujarat High Court vide order dated 9th December, 2004, has made the following observation :

"36. As far as preliminary objections raised against the maintainability of the petitions are concerned, we could have thrown out the first petition, being Special Civil Application No. 14460 of 2004 but for the other two petitions on the same subject matter. Normally, multiple petitions under Public Interest Litigation, on the same subject matter are not entertained. However, the first petition does not seem to have been filed bonafide or for real and genuine public cause and it does not inspire our confidence to treat it as Public Interest Litigation in real sense. The resolution dated 15th July, 2004 was produced at the belated stage. The relationship between some of the office-bearers and members of the Board of Trustees with the personnel of Electro Steel Castings Limited is difficult to be overlooked. It, therefore, leads us to believe that the first petition is a sponsored petition. In ASHOK KUMAR PANDEY v. STATE OF WEST BENGAL and Ors. (supra), the Hon'ble Supreme Court, in no uncertain terms, has observed that "when there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out." Since there is business rivalry between the said ESCL and the Respondent No. 5 and since the said ESCL is in the habit of sponsoring such petitions, we do not concur with the view of the present petitioners that there is a real and genuine public interest involved in the litigation. It is difficult to believe that they have approached this court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration, as observed by the Hon'ble Supreme Court in that case."

The above observation of the High Court indicates the relationship between the NGOs and the Steel Company, whose name is quoted hereinabove.

Shri Colin Gonsalves, learned senior counsel appearing on behalf of the petitioner herein all throughout these proceedings till today, fairly states that he has looked into the matter and it would not be possible for him to appear on behalf of the petitioner in this matter any further. He further states that Advocate-on-record has also addressed a letter stating that she would not like to represent Kalyaneshwari (NGO). In the circumstances, the Registry is directed to issue notice to the petitioner informing them of the next date of hearing. The matter is made returnable on 27th August, 2010. In the meantime, we would like to know from the Central Government as to whether petitioner-NGO is on the list of NGOs maintained by the Union of India and whether the petitioner-NGO is funded by the Central Government? We request Mr. H.P. Raval, learned Additional Solicitor General to assist u8s as amicus in the matter. The Advocate-on-Record is given discharge. We appreciate the stand taken by Shri Colin Gonsalves in taking a fair stand in the case.

The Advocate-on-Record is given discharge. We appreciate the stand taken by Shri Colin Gonsalves in taking a fair stand in the case."

19. After passing of that order the petitioner NGO was further

directed to file an affidavit explaining its conduct highlighted by

Gujarat High Court in the case of B.K. Sharma (supra). In

furtherance to the direction of this Court dated 27th August, 2010, B.K.

Sharma, claiming to be working as Secretary of the petitioner, filed a

detailed affidavit. In this affidavit, besides reiterating some of the

averments made in the Writ Petition, it has been specifically averred

that `on the advice of the High Court all the three Writ Petitions were

withdrawn so as to make proper representation to the Central

Government to consider the objections in the petition.' Specific

dispute has also been raised and it is denied that one member of the

Society, namely, Shanti Swaroop has worked with the Steel Company

ESCL and that only consultancy services were provided by him on

part time basis and comparison of his services is sought to be made

with that of lawyers and Chartered Accounts working for the company.

In the affidavit filed by the petitioner in furtherance to the order of this

Court dated 27th August, 2010, it is stated that B.K. Sharma was

neither working as Advisor/Consultant of ESCL between November-

December 2003 to March-April 2004 nor was he looking after the

marketing activity of ESCL in Madhya Pradesh. It is stated that during this period he was working in Rajasthan on an important

project. First, it is nowhere denied that B.K. Sharma had no

connection of any kind with ESCL at any point of time; second, even

in the affidavit, necessary particulars have not been given of the

company or the project for which he was working in Rajasthan. Still

attempt has been made to put the blame on the Gujarat High Court

by stating that the Court had not appreciated the facts correctly.

Other NGOs had also filed some writ petitions and as such the

petition by the petitioner was bona fide. It is also averred, `it is

pertinent to mention that neither the Court nor the respondent felt the

need for substantiating the allegations with evidence, which is

contrary to the settled proposition of law that a person making an

allegation needs to prove it'.

20. Three writ petitions had been filed in the Gujarat High Court,

including one by B.K. Sharma acting on behalf of the petitioner NGO,

which was petitioner No. 2, in that Writ Petition, seeking direction

against the authorities to take appropriate preventive steps and

measures against the Respondent No.5 M/s. Saw Pipes Ltd. in

proceeding further with the construction activities of Respondent

No.5's project comprising Blast Furnace and Ductile Iron/Cast Iron

pipe, fittings casting manufacturing plant and foundry near Mundra, Kutch with further prayer that they be stopped from carrying on any

activity and that the factory constructed should be demolished. These

petitions were heard at great length by a Bench of Gujarat High

Court. Ultimately, the Court recorded its findings in paragraphs 7.2,

36 & 37 of the judgment. In these findings, the Court noticed that

earlier a PIL had been filed in the Madras High Court, allegedly

sponsored by ESCL, against a company manufacturing the same

articles. Later on that company had been taken over by ESCL and the

present petition is also filed as a result of business rivalry. The Court,

prima facie, recorded the finding that there is close association of

B.K. Sharma with the rival company of ESCL and one Shanti

Swaroop was also appointed as consultant for the NGO, who was

earlier associated with ESCL. The Court finally recorded the

conclusion that the petition was mala fide and was a result of

collusion between the steel company and the NGO.

21. Another aspect on which the High Court recorded its

adverse finding against the petitioner is that the petitioner had

submitted some official documents, including noting on Government

files, which were not published documents and to which the petitioner

had no access. Despite directions of the Court, the petitioner had

failed to disclose the source of possession of those documents. The matter did not end there as, when the true copies of the said

noting/documents were produced before the Court by the

Department, it came to light that certain paragraphs/portions of the

notings etc. had been omitted in the documents filed by the petitioner

and certified as true copies. From the record before us, it is clear that

B.K. Sharma as well as Shanti Swarup had professional

commitments in one form or the other either on permanent or

temporary basis with ESCL. It has been stated in the affidavit filed by

B.K. Sharma that three writ petitions were withdrawn on the advice of

the Gujarat High Court which is hardly true. The Court had only

granted liberty, while dismissing the writ petitions as withdrawn, to

approach the Central Government. The Central Government had

again declined to accept the representations made by the petitioners

resulting in filing of writ petitions for the second time which culminated

in the final judgment by the Gujarat High Court in the case of B.K.

Sharma (supra).

Above was the conduct of the petitioner before the Gujarat High Court

and we hardly find any improvement in its behaviour before this Court

in the present litigation. Even before this Court, a judgment which

has attained finality on all factual matrix and even otherwise, is

attempted to be brushed aside by making irresponsible statements, inter alia, that the Gujarat High Court had failed to apply its mind. The

judgment of the Gujarat High Court dismissing all the three writ

petitions was challenged before this Court by way of filing Special

Leave Petitions which came to be dismissed vide order dated 28th

January, 2005. Thus, the judgment of the Gujarat High Court for all

intent and purposes attained finality and we do not think that legality

or correctness of the judgment can now be questioned in these

proceedings. It is of no use and help to the petitioners now to claim

that no proof was produced before that Court to establish the

allegations that the petition was filed at the behest of ESCL. They

were writ petitioners and the Court, after hearing the parties at length

and perusing the record, has recorded the above findings which, in

any case, do not suffer from any infirmity, much less, illegality so as to

be disregarded by this Court. We are constrained to say that the

findings recorded by the Gujarat High Court reflect the picture of the

petitioner which certainly invites judicial chastisement and appropriate

orders.

22. During the hearing of this Writ Petition, the Court had called

upon the learned Addl. Solicitor General to find out from the

concerned Ministries whether the petitioner NGO was a registered

NGO and whether it was granted any financial assistance or grant-in- aid. However, vide letter dated 26th August, 2010, copy of which has

been placed on record by the learned Addl. Solicitor General, it has

been informed that the petitioner NGO is not recognized by any

Ministry and no financial assistance has been sanctioned to it.

23. Another aspect, which has still not been clarified by the

petitioner, is how the present petition came to be filed in face of the

judgment of this Court in the case of Consumer Education and

Research Centre (supra) and, in fact, what was the need to file it. It

cannot be ignored that valuable time of this Court is consumed in

dealing with such public interest litigations which are filed without

proper study and data and merely on some reference to very few

workmen working in an industry and without projecting any

requirement at the national level demanding the attention of this Court

in treating it as a national problem. The Kerala State Human Rights

Commission vide order dated 31st January, 2009 has also dealt with

the same problem which does not even find a mention in the present

petition and which the petitioner is expected to know as it claims to be

working for the common man in this behalf. Every litigant, who

approaches the Court, owes a duty to approach the Court with clean

hands and disclose complete facts. A petition which lacks bona fide

and is intended to settle business rivalry or is aimed at taking over of a company or augmenting the business of another interested

company at the cost of closing business of other units in the garb of

PIL would be nothing but abuse of the process of law.

24. Presumably, and as contended, the direct impact of banning

of activities of mining/manufacturing relating to asbestos shall result

in increase in demand of cast iron/ductile iron production as they are

some of the suitable substitutes for asbestos. It is not in dispute that

ESCL is one of the largest manufacturer of iron and allied products in

India and there was a professional and/or other connections between

ESCL and B.K. Sharma on the one hand and B.K. Sharma and Shanti

Swarup on the other who, admittedly at present, is involved with the

activities of NGO for a considerable time. Thus, it would be a

reasonable conclusion to draw that the Writ Petition has been hardly

filed in public interest but is a private interest litigation to give rise to

business opportunities in a particular field.

25. In Ashok Kumar Pandey v. State of West Bengal [(2004) 3

SCC 349], this Court took a cautious approach while entertaining

public interest litigations and held that public interest litigation is a

weapon, which has to be used with great care and circumspection.

The judiciary has to be extremely careful to see that no ugly private

malice, vested interest and/or seeking publicity lurks behind the beautiful veil of public interest. It is to be used as an effective weapon

in the armoury of law for delivering social justice to citizens. The

attractive brand name of public interest litigation should not be used

for suspicious products of mischief. In the case of Rajiv Ranjan

Singh Lalan v. Union of India [(2006) 6 SCC 613], this Court

reiterated the principle and even held that howsoever genuine a case

brought before a Court by a public interest litigant may be, the Court

has to decline its examination at the behest of a person who, in fact,

is not a public interest litigant and whose bona fides and credentials

are in doubt; no trust can be placed by the Court on a mala fide

applicant in a public interest litigation. The Courts, while exercising

jurisdiction and deciding a public interest litigation, has to take great

care, primarily, for the reason that wide jurisdiction should not become

a source of abuse of process of law by disgruntled litigant. Such

careful exercise is also necessary to ensure that the litigation is

genuine, not motivated by extraneous considerations and imposes an

obligation upon the litigant to disclose true facts and approach the

Court with clean hands. Thus, it is imperative that the petitions, which

are bona fide and in public interest alone, be entertained in this

category. Abuse of process of law is essentially opposed to any

public interest. One, who abuses the process of law, cannot be said to serve any public interest, much less, a larger public interest. In the

name of the poor let the rich litigant not achieve their end of becoming

richer by instituting such set of petitions to ban such activities.

Besides the fact that the present petition lacks bona fides, it is also

obvious that the petitioner though had prayed for complete ban on all

mining and manufacturing activities but had hardly made any study or

prepared statistical data in that regard. It only made reference to

certain studies in foreign countries. The petitioner, claiming to be an

organization involved in the good of the common man, ought to have

taken greater pains to state essential facts supported by documents

in relation to Indian environment.

26. The document referred to as Ex.P9 in paragraph 36 of the

Writ Petition is probably the only document which allegedly records

the conditions of a few workmen in India and contains the names of a

few doctors and workers. This document is neither signed by

anybody nor does it give address of any workman or the

industry/factory where such workman is working. It is expected of the

petitioner to have made proper efforts in collection of such material

before it moved this Court to treat this problem at the national level

and had spent its judicial time. All the States in the country have

been issued notices of this petition and they have denied the allegations. It was incumbent upon the petitioner thus to at least

substantiate the averments in the petition by some cogent and

documentary evidence actually related to the working conditions of

the workmen in various factories in different States. In our view, the

petitioner has miserably failed to discharge this onus.

27. The conduct of the petitioner before the Gujarat High Court

appears to be contemptuous and certainly is an abuse of the process

of the court in terms of the finding recorded by that Court which has

attained finality. That petition was instituted at the behest of ESCL,

while the present petition also does not demonstrate that intention of

the petitioner is to achieve public interest. This Court in Raunaq

International Ltd. v. I.V.R. Constructions Ltd. [(1999) 1 SCC 492] has

clearly stated that public interest litigation should be bona fide for

public good and nor merely a cloak for attaining private ends. The

Court clearly enunciated the principle that previous record of public

service of the litigant can also be examined by the Court. To enable

the Court to strike a balance between two conflicting interests, it is

important that public mischief is prevented. It appears to have been

moved again at the behest of the same company and, in any case, to

ultimately cause material and business gains to that or such other

companies. Thus, the present petition lacks bona fide, is an abuse of the process of the Court and has been filed as a proxy litigation for

the purpose of achieving private interest. This Court cannot permit

such practice to prevail and it needs to be deterred at the very

threshold.

28. In view of the preceding discussion in detail and its analysis,

we perceive no merit in this petition, as far as prayer of the petitioner

for banning of mining and manufacturing activities in asbestos or its

allied products is concerned. While rejecting that prayer, we dispose

of this petition with the above directions.

29. Keeping in view the conduct of the petitioner, particularly,

B.K. Sharma, we hereby issue notice to him as well as the petitioner

to show cause why proceedings under the Contempt of Courts Act,

1971 be not initiated against them and/or in addition/alternative, why

exemplary cost be not imposed upon them. Further, we also call

upon the petitioner to show cause why the Registrar, Government of

NCT, Delhi be not directed to take action against them in accordance

with law.

IA No.9 of 2010 in WP (C) No.260 of 2004

We find no reason to implead the applicant as a party respondent in the present petition at this stage. The IA for

impleadment is dismissed.

................................................CJI [S.H. Kapadia]

.................................................J. [K.S. Panicker Radhakrishnan]

....

..............................................J. [Swatanter Kumar]

New Delhi January 21, 2011.