Full Judgement
Akhil Bharat Goseva Sangh Vs. State of A.P.& Ors [2006] Insc 162 (29 March 2006)
Cji & Tarun Chatterjee
(With C.A.Nos.3964-3967 of 1994) With Cont .Pet. No...IN C.A.No.3967/1994 And CIVIL APPEAL NOS. 4711-4713 OF 1998 Umesh & Others Appellants Versus State of Karnataka & Ors. Respondents. TARUN CHATTERJEE, J.
Al-Kabeer Exports Limited ( in short 'Company') is a public company formed for the purpose of carrying on the business of processing meat, mainly for export purposes. The company with a view to establish a slaughter house in Rudraram village, in the Medak District of the State of Andhra Pradesh applied to the Gram Panchayat, Rudraram for the requisite permission to construct a factory and other buildings connected therewith. On 24th March 1989, the Gram Panchayat concerned, issued a 'No Objection Certificate' (in short 'NOC'). After obtaining opinion of the District Medical and Health Officer, Director of Town Planning and Director of Factories, State of Andhra Pradesh, permission was granted to the company to run a slaughter house on the selected site on 29th June 1989.
Prior to this permission, the Andhra Pradesh Pollution Control Board (for short 'A.P.P.C.B.') also issued a 'NOC' on the application of the company filed on December 30, 1988, subject to certain conditions concerning the treatment of effluents and air pollution. In the said NOC, it was inter-alia stipulated that the company shall obtain a second 'NOC' and a regular consent under Sections 25 and 26 of the Water (Prevention and Control of Pollution) Act, 1974 from A.P.P.C.B. before commencing regular production. The Director, Animal Husbandry Department, Government of Andhra Pradesh also issued a NOC in favour of the company by a letter dated July 13, 1989, subject to compliance with the provisions of Sections 5 and 6 of the Andhra Pradesh Prohibition of Cow Slaughter and Animal Preservation Act, 1977 ( in short the 'A.P. Act') and the instructions issued there under.
Subsequently, on 18th July 1989 the Central Government (Ministry of Industry) granted a Letter of Intent (in short 'L.O.I.') under the provisions of the Industries (Development and Regulation) Act, 1951 (in short 'IDR Act') for establishment of a new industrial undertaking to the company at the selected site mentioned herein earlier for manufacturing of certain amount of Frozen Buffalo and Mutton Meat.
The LOI was granted, subject to the following conditions:-
"Buffaloes to be slaughtered shall be subject to anti-mortem and post-mortem examination by the concerned authorities.
Only old and useless buffaloes shall be slaughtered and for this purpose, their production and processing shall be subject to continuous inspection by the Municipal Authorities, Animal Husbandry and Health Department of the State Government or any other arrangement that the Central or the State Government may evolve for ensuring this.
Slaughter of cows of all ages and calves of cows and buffaloes male or female, shall be prohibited.
The company shall undertake measures for preserving and improving the breeds of the buffaloes by adoption of suitable animal husbandry practices in consultation with the State Government.
At least 90% production of frozen buffalo meat would be exported for a period of ten years which may be extended by another five years at the discretion of the Government.
Adequate steps shall be taken to the satisfaction of the Government to prevent air, water and soil pollution. Such anti- pollution measures to be installed should conform to the effluent and emission standards prescribed by the State Government in which the factory of the industrial undertaking is located.
The new industrial undertaking or the industrial activity for effecting substantial expansion or for manufacture of new article shall not be located within:
50 kilometers from the boundary of the standard urban area limits of any city having a population of more than 25 lakhs according to the 1981 census; or
30 kilometers from the boundary of the standard urban area limits of any city having a population of more than 15 lakhs but less than 25 lakhs according to the 1981 census;
In case the location of the industrial undertaking is in no Industry District, change of location from No Industry District to any other area including a notified backward area either within the same State or outside the State will not normally be allowed." The recommendation was also made by the State of Andhra Pradesh to grant industrial licence to set up abattoir slaughter house at the selected site.
If we are permitted to read the various conditions for grant of LOI issued by the Central Government carefully, it would be evident that only old and useless buffaloes shall be available for slaughtering and their production and processing shall be subject to continuous inspection by the Municipal Authorities, Department of Animal Husbandry and Health Department of the State Government. Clause (c) of the LOI speaks of total prohibition of slaughtering of cows of all ages and calves of cows and buffaloes, male or female. Clause (d) invites the company to undertake measures of prohibiting and improving the breeds of the buffaloes by adoption of suitable animal husbandry practices in consultation with the State Government. Clause (e) of L.O.I. provides that 90% of the production of frozen buffalo meat would be exported for a period of ten years which may be extended by five years at the discretion of the Government. Clause (f) directs to take adequate steps to the satisfaction of the Government to prevent air, water and soil pollution and for this purpose anti pollution measures must be installed to enforce the effluent and emission standards prescribed by the State Government. Clause (g) of the LOI says that a new industrial undertaking shall not be located either for effecting substantial expansion or for manufacture of new article if the said location is situated within 50 km from the boundary of the standard urban area of any city having a population of more than 25 lakhs according to 1981 census or is located 30 km from the boundary of the standard urban area limit of any city having a population of more than 15 lakhs but less than 25 lakhs according to 1981 census. On 28th August 1991 the Agriculture and Processed Food Products Export Development Authority informed the company that the Government of India was keen to promote the export of meat and meat products as part of its export drive.
It is an admitted position that for the purpose of running the slaughter house, the company, as noted herein earlier, had applied for licences to various authorities of the State Government as well as of the Central Government. Having been satisfied and after holding enquiry, permission and/or licence was granted to the company first for the purpose of making construction at the site in question and thereafter for running the slaughter house. Such being the position and in view of the reasons given hereinafter we cannot apprehend that the company was permitted, by the authorities, first to make construction of the factory at the selected site and thereafter to run the slaughter house without being satisfied that the conditions for grant of permission and licence were observed by the company.
It is not in dispute that on the basis of the LOI and permission granted by the State of Andhra Pradesh and other authorities including the APPCB, the company started its construction work for installation of buildings and machineries, for the purpose of running a slaughter house. When some construction had progressed, the Executive Officer of the Gram Panchayat concerned issued a notice in the exercise of his power under section 131 (3) of the Andhra Pradesh Gram Panchayat Act, 1964 suspending the permission granted for construction of the factory building and other buildings to the company and thereby directed stoppage of constructions until further orders. Challenging this order of the Executive Officer, the company filed a Writ Petition before the High Court of Andhra Pradesh. Some organizations opposed the proposed establishment of the slaughter house and they were impleaded as respondents to the said writ petition. The writ petition was, however, subsequently withdrawn by the company and instead a revision petition was filed before the State Government questioning the notice issued by the Executive Officer on the suspension of the construction work which was permitted by the State Government. After hearing all the concerned parties, by an order dated 15th September 1990 the revision case was allowed by the State Government. A bare reading of this order would show that the order of the Executive Officer was not only directed to be set aside but also the period of completing the construction work was extended by one more year, from 29th of June 1989. Against the order passed in the revision case, two writ petitions being W.P.No.13763 and W.P.No.13808 of 1990 were filed in the High Court one by those organizations who were impleaded in the earlier writ petition and the other by some individuals. These two writ petitions were admitted by a learned Single Judge of the High Court and by an interim order, the operation of the order passed in the revision case was suspended pending decision of the two writ petitions.
Against the aforesaid interim order, the State Government as well as the company filed writ appeals which were admitted by a Division Bench of the High Court and the interim order granted by the learned Single Judge was stayed by an interim order of the Division Bench of the High Court. When the writ appeals came up for final hearing, the parties before the Division Bench prayed that the writ petitions be disposed of on merits. Such stand having been taken by the parties before the Division Bench, the writ petitions were heard and disposed of by an order dated November 16, 1991 on merits with the following directions:- "...However, we direct that the State Government shall prepare a detailed report regarding the water, air and environment pollution, if any, as at present in Rudraram and surrounding villages of Patancheru Mandal, Medak District having regard to the provisions of the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986 and the rules made thereunder, the likely effect of the setting up of the mechanized slaughter house at Rudraram village on the prevailing environment, and also its likely effect on the cattle wealth in the area, after considering the representations which the petitioners in these writ petitions and other interested parties may submit in writing in this regard. The petitioners herein and other interested persons shall submit the representations and other supporting material in writing to the State Government within four weeks from today. The State Government shall prepare and submit a detailed report to the Central Government within eight weeks from the date of receipt of the copy of this judgment. On receipt of the report, the Central Government shall consider the same, having regard to the provisions of the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act, 1986 and the Industries (Development and Regulation) Act, 1951 and pass appropriate orders in relation to the establishment of the mechanized slaughter house (abattoir) at Rudraram village, Patancheru Mandal, Medak District, Andhra Pradesh, within eight weeks from the date of receipt of the report." (Emphasis supplied).
It may be kept in mind that this order of the Division Bench by which certain directions were made by it to the State Government as well as to the Central Government was , however, not appealed before this Court. Pursuant to the directions given by the Division Bench in the aforesaid order, as noted hereinabove, the State Government constituted a Committee known as "Krishnan Committee" for examining and reporting the matters referred to in the order of the High Court.
The Krishnan Committee constituted by the State Government submitted its report. It was noted in the report that some fundamentalist organizations opposed the establishment of the slaughter house on account of their religious and sentimental opposition to the slaughter of animals, whereas the Central Government and the Government of Andhra Pradesh permitted the setting up of this plant subject to the conditions imposed by them. So far as the pollution of air and water was concerned, the committee was of the opinion that if due observance of the safeguards stipulated by the several concerned departments, including Pollution Control Board was made by regular supervision, such pollution of air and water could be kept within a reasonable limit. So far as the depletion of the cattle wealth is concerned, the Committee upheld the objections of the Food and Agriculture Department in the following words:
"There are valid reasons for believing that this argument is substantially valid. To start with the capacity of the plant is so large that with the existing cattle wealth and possible increases thereto, will not be able to provide adequate input to this factory for more than a year or two unless drastic action is taken to increase the cattle wealth in the surrounding areas. The Food and Agriculture Department have already brought out the fact that the cattle wealth in the surrounding areas as also in the other parts of the State is gradually going down and the cattle available for slaughter is around 1.76 lakhs animals per year. As against this, the existing slaughter houses in the State are already slaughtering animals to the extent of 2.01 lakhs, with the result that with the level of existing cattle wealth, there is no additional input likely to be available to cater to the huge capacity of the plant being established at Rudraram. Food and Agriculture Department has also brought out the fact that it will be difficult for the factory to adhere to the existing regulations of the provisions of the Prevention of Cruelty to Animals Act and Prohibition of Cow Slaughter Act, 1977 and every effort would be made to circumvent the provisions of this Act so that adequate input supply is maintained (for the?) factory. It was reported in the newspapers sometime ago that a similar factory established in Goa, after operation for one or two years had to drastically stop their operations for want of adequate input material." After expressing the opinion, the Krishnan Committee made the following recommendation as a condition for allowing the establishment of the slaughter house:
"In the circumstances it is essential to insist on the Company to ensure that there is an effective programme to raise feed cattle on their own initiative for not less than 50% of the capacity so that the impact on the surrounding area is limited to this extent atleast. Further increases in capacity can be considered only if the company increases its own feed cattle. Eventually the Company will have to produce feed cattle for their entire extent of operations so as to minimise the impact on the existing cattle wealth.
If this alternative is not acceptable to the Company, the proposal mentioned by the Food and Agriculture Department of starting a modem abattoir with an investment of about Rs. 15 crores may be directed to take over this plant and eventually the unhygenic private slaughter houses in and around the city and government slaughter houses can be closed and the meat requirement for the city may be met from this factory." We have carefully examined the Report of the Krishnan Committee and its recommendation for allowing the establishment of the slaughter house. From a plain reading of the report and its recommendation, it cannot be doubted that the Krishnan Committee was in favour of the establishment of the slaughter house subject to the condition that it should raise its own cattle required by it - initially to the extent of half and ultimately to the full extent. The committee also opined that if the company was not willing to or not in a position to raise its own cattle then the company may not to be allowed to run or its capacity may be utilised to meet the existing requirement by diverting the cattle from the existing slaughter houses. From this recommendation, it may be said that the existing slaughter houses, big and small, government and private, were to be closed down and the slaughter house of the company would be utilised to meet the present domestic requirements. It also appears from the record that before forwarding this report to the Central Government, the Chief Secretary to the Government of Andhra Pradesh appended a Reference note which may not be required to be noted for our present purpose.
The report of the Krishnan committee was forwarded to the Central Government. The Central Government in its turn forwarded the report to the A.P.P.C.B. for appropriate action. However, no order was passed by the Central Government on the said report at all, although, the Central Government was a party to the order of the High Court, as noted herein earlier. That apart, the High Court also in its judgment as noted herein earlier, made certain directions to the Central Government to pass an order after considering the report.
A Writ Petition being W.P.No. 6704 of 1991 was filed by two environmentalists for issuance of a writ, restraining the Hyderabad Metropolitan Water Supply and Sewerage Board and others from supplying/selling water to the slaughter house of the company. An interim order was passed by the High Court on May 27, 1992 to the effect that the Hyderabad Metropolitan Water Supply and Sewerage Board and others be restrained from considering the proposals for sale of water to the company.
Dr. Kishan Rao appellant in Civil Appeal No. 3966 of 1994 along with Ahimsa Trust filed a Writ Application being Writ Petition No. 8193 of 1992. In this writ petition an interim order was passed to the effect that the NOC granted by the APPCB shall be subject to further orders in the writ application.
Akhil Bharat Goseva Sangh which is appellant in Civil Appeal No. 3968 of 1994 filed a Writ Application No. 10454 of 1992 questioning the grant of permission for trial run of the slaughter house of the company.
A Writ Application being Writ Petition No. 13062 of 1992 was filed by Dr. Kishan Rao along with one Smt. Satyavani questioning the permissions granted for the establishment of the slaughter house of the company. As noted hereinearlier, Writ Petition No. 8193/1992 was filed by Dr. Kishan Rao praying for similar reliefs which were prayed by him in Writ Petition No. 13062/1992. The Division Bench in the judgment under appeal had taken a serious objection to the filing of two Writ Petitions by Dr. Kishan Rao for similar reliefs and observed that there was mis-statement on the part of Dr. Kishan Rao saying that relief claimed in Writ Petition No. 13062/1992 and reliefs claimed in Writ Petition No. 8193/1992 were different. All these writ petitions were heard together and disposed of by the High Court by common judgment dated April 6, 1993. In the aforesaid judgment, the High Court in substance observed as follows:
As the LOI granted by the Central Government and the provisions of the Andhra Pradesh Preservation of Cow Slaughter and Animal Preservation Act, 1977 permits slaughtering of only useless cattle and in view of the fact that maintenance of such useless cattle involves a wasteful drain on the nation's meager cattle feed resources, the Government of Andhra Pradesh and the Central Government were fully justified in granting permission for establishing and running the slaughter house.
In view of the agitations by some organizations the matter was re-examined and fresh discussions were made by different concerned departments of the State. On the question of slaughter policy of the State and on re-examination of the issues involved, the Director of Animal Husbandry observed on 21st December, 1990 that the establishment of slaughter house would not really result in any depletion of cattle in the State.
On 28.9.1991 the issue was again considered by the Director of Animal Husbandry, who reiterated his opinion expressed on 21.12.1990 which was also approved by the Andhra Pradesh Cabinet.
In view of the aforesaid finding made by the Division Bench it was found by it that the establishment of slaughter house of the company would have only "negligible effect" on rate cattle growth in the State.
So far as the environment aspects were concerned, Division Bench found that the safeguards stipulated by APPCB and other authorities of the State were sufficient to ensure control of air and water pollution.
Accordingly, the Division Bench was of the opinion that all the concerned authorities of the State having granted requisite permissions after duly considering all the relevant facts and circumstances, there was no ground for intervening with the establishment and operation of the slaughter house. In the said judgment while dismissing the writ petitions, the Division Bench also directed prosecution of Dr.Kishan Rao for his mis-statement that he had not filed any other writ petition seeking similar reliefs.
We may restate that writ petition No.10454 of 1992 filed by Akhil Bharat Goseva Sangh was also disposed of by the Division Bench on the same day. In Writ Petition No.10454 of 1992 the main contention of the petitioner was that the State Government had not complied with the directions made by the High Court in its judgment and order dated 16.11.1991 and in the said Writ Petition it was prayed that until and unless the State Government sent its report, in accordance with the direction of the Division Bench of the High Court, to the Central Government and the latter had taken decision thereon, the company be restrained from functioning. On this issue, the Division Bench held that this question was already dealt with in the judgment and therefore in this writ application there was no need to deal with it all over again. C.A.No.3968 of 1994 was preferred against this judgment in this Court. C.A.Nos. 3966, 3967 and 3968 of 1994 have been preferred against the judgment of the Division Bench of the A.P.High Court delivered on 6th April, 1993. The appellant in C.A.No.3966 of 1994 is Dr.Kishan Rao, the appellant in C.A.No.3967 of 1994 is Smt.Satyavani whereas the appellant in C.A.No.3968 of 1994 is Akhil Bharat Goseva Sangh. Civil Appeal Nos. 3964-3965 of 1994 have been directed against the order of another Division Bench allowing the writ appeal preferred by the company under Clause 15 of the Letters Patent and setting aside the interlocutory order passed by a learned Single Judge in W.P.M.P. No.9367/1993 arising out of W.P. No. 7483/1993. In this way the five appeals against the judgments of the High Court of Andhra Pradesh were placed before us for final disposal which were heard in presence of the learned counsel for the parties.
By an order dated 25th October 1994 passed in C.A. No.3968/1994 with C.A. Nos.3964-3967/1994 (Akhil Bharat Goseva Sangh vs. State of A.P. and Ors.) reported in [(1995) Suppl.(1) SCC 370], the report of the Krishnan Committee was taken into consideration by a Division Bench of this Court which made the following observations:
"We are of the opinion that the rejection of Krishnan Committee report in the above manner really amounts to slurring over the main recommendation of the said report. Moreover, the learned Judges have not dealt with the failure of the Central Government to consider the said report and pass appropriate orders pursuant to the directions of the High Court in its judgment dated November 16, 1991. The learned Judges have observed in the said judgment that it is not possible for the Court to go into conflicting reports of experts and that, therefore, they should leave the matter for the judgment of the Government. This observation again does not take into account the directions made by the said High Court in its judgment referred to above. They have also observed that the Director of Animal Husbandry has given his opinion or revised opinion, as the case may be, after taking into consideration the objections of the Food and Agriculture department.
Though no material has been brought to our notice in support of the said statement, we shall assume that it is so. Even then the fact remains that this reconsideration by Director, Animal Husbandry department is said to have taken place sometime in 1990, whereas even in 1992, the Food and Agriculture department was yet protesting with its views before the Krishnan Committee. Above all, the said reconsideration by the Director, Animal Husbandry department far prior to the judgment of the High Court dated November 16, 1991 does not relieve the Central Government of the obligation to consider the Krishnan Committee report and pass appropriate orders in the matter as directed by the judgment of the High Court dated November 16, 1991. It was for the Central Government to consider the said report taking into consideration the several facts and circumstances mentioned therein as also the contending views expressed by the several authorities and departments referred to therein. This, the Central Government has clearly failed to do.
There is another relevant consideration. The slaughter house has been in operation for the past eighteen months or so. It would be possible to find out the effect, if any of the operation of the slaughter house had on the cattle population of Medak and adjacent and nearby districts. It would equally be relevant to ascertain, if possible, what percentage of cattle slaughtered have been brought from other States and what percentage from the surrounding areas. In this connection, it is relevant to mention that the Animal Husbandry department has taken the total cattle population of the Andhra Pradesh State which is indeed misleading. The slaughter house is situated on the western border of Andhra Pradesh State, almost on the trijunction of Andhra Pradesh, Maharashtra and Karnataka.
In such a situation, the slaughter house would rather draw its requirements of cattle from the surrounding and nearby districts rather than go all the way to far away districts of Andhra Pradesh State like Srikakulam, Visakhapatnam or for that matter, Nellore and Anantapur, which are situated several hundreds of miles away. The transport of cattle over long distance may induce the slaughter house to go in for cattle in the nearby areas, whether in Andhra Pradesh, Maharashtra or Karnataka - unless, of course, the cattle are available at far cheaper rates at distant places, which together with transport charges would make it more economic for the slaughter house to bring cattle from far away districts or from far away areas in the country. Therefore, taking the entire cattle population of the Andhra Pradesh State is bound to convey an incorrect picture. Perhaps, it would be more appropriate to take into consideration the cattle population of, what the Krishnan Committee calls, the "hinterland" of the slaughter house.
In view of the fact that the controversy relating to the establishment of the slaughter house has been going on over the last several years, we think it appropriate that the Central Government should look into all relevant aspects, as directed by the High Court of Andhra Pradesh in its judgment dated November 16, 1991, forthwith and record its opinion before we take a final decision in the matter. The decision of the Central Government shall be recorded in a reasoned proceeding, which, shall be placed before this Court. The further orders to be passed would depend upon the contents of the report and the material so placed before us.
We may make it clear that we should not be understood to have expressed any opinion on the merits of the aspects which the Central Government has been directed to consider by the Andhra Pradesh High Court. Whatever we have said in this judgment is only to indicate the failure of the Central Government to abide by the said directions and to record reasons in support of the direction made herein. We have also not gone into the other questions raised by the learned counsel for the appellants. They can be considered at a later stage after the receipt of the material and the report from the Central Government." (Emphasis supplied) From the above noted observations of this Court in the appeals, we find that the propriety of the Krishnan Committee report could be considered after the receipt of the material and report from the Central Government. Therefore, it cannot be said that by the aforesaid order of this Court at the intermediary stage this Court in fact rejected the report of the Krishnan Committee. On the other hand, it was made clear that such a report can be considered after submitting of the report of the Central Government in compliance with the directions made by this Court, as noted herein earlier. In compliance with the directions made by this Court in its order, a report was submitted and a further order in continuance of the order dated 25th October 1994, was also passed by this Court in the aforesaid appeals reported in Akhil Bharat From this order, it appears that the Central Government had constituted an inter-Ministerial committee headed by the Joint Secretary, Ministry of Food Processing Industry and three other Members. The committee in its report made the following conclusions and suggestions:-
With regard to the pollution of air and water the suggestions and recommendations made by the Krishnan Committee as well as the expert opinion contained in it were good and acceptable. The Government of India in the Ministry of Environment and Forests have already accepted the same and the steps to implement have already been taken. The Environment Audit Report along with the Environmental Management Plan prepared by the Company were acceptable. However, regular monitoring of pollution of air and water need to be continued by the Company itself as well as periodic checking by the Andhra Pradesh State Pollution Control Board. (Emphasis supplied)
The Krishnan Committee's assumption and apprehensions on depletion of cattle due to establishment of M/s Al-Kabeer's slaughter house are not based on correct scientific analysis and adequate reasoning, and therefore, are not acceptable. From the facts and analysis it is obvious that amongst bovine animals, the project of M/s. Al-Kabeer is to utilize only the unproductive buffaloes and not cow and its progeny.
In fact, adequate number of unproductive buffaloes were available for use in the slaughter house and other slaughter houses in Andhra Pradesh.
The Krishnan Committee's suggestion of State Government taking over M/s Al-Kabeer slaughter house for supply of meat for domestic requirement had gone contrary to the objective of giving permission for setting up of abattoir by M/s. Al-Kabeer, as well as Government of India's programme for increase of export of meat and meat products. There is, however, need for modernizing the existing abattoirs in the State for which the State Government may take appropriate steps separately.
The suggestion of Krishnan Committee of the Company undertaking effective programmes to raise feed cattle for meeting 50% requirement of the abattoir was not practicable and therefore, not acceptable. However, as per the terms of the licence, the Company should prepare a plan in consultation with the State Government and take up its implementation in conjunction with the State Government for promoting better animal husbandry practices.
Number of petitions were filed by the appellants in the appeals challenging the report and finally this Court by its order dated 12th March 1997 (reported in 1997 (3) SCC 707 ) made the following observations :
"There is good amount of substance in the submissions of the learned counsel for the appellants. The statistics which constitute the basis of this Report submitted by the Government of India are not really relevant to the issue before us. As rightly pointed out by the learned counsel for the appellants, Al-Kabeer started functioning only in April 1993 and the effects and impact of its functioning will be known only if one studies the figures of availability and/or depletion of buffalo population over a period of one or two years after Al- Kabeer has started functioning. Merely showing that there has been a marginal increase in buffalo population between 1987 and 1993 is neither here nor there. Even if it is assumed that the 1993 figures refer to the figures up to September-October 1993, that will take only six months of working of Al- Kabeer. The proper impact of working of Al-Kabeer on the depletion of cattle, if any, would be known only if one takes into consideration the census figures of cattle in Telangana region or in the areas contiguous to Medak District ( where the said unit is located), as the case may be, after at least two years of working of Al-Kabeer. In short, the position obtaining after April 1995 would alone give a correct picture. We cannot also reject the contention of the learned counsel for the appellants that the Government of India's Report is influenced to a considerable extent by the Report of Shri Yogi Reddy, the then Director of Animal Husbandry, Government of Andhra Pradesh, whose Report has been termed as "unauthorized" by the Special Secretary to the Government of Andhra Pradesh and thus disowned by the Government. Even according to the Government of India's Report, the requirement of Al-Kabeer is 1.5 to 2.0 lakh buffaloes every year, which is not an insubstantial figure. We must also take into consideration what the appellants' counsel call the inherent contradiction between the standard and quality of beef required for export and the provisions of the Andhra Pradesh Prohibition of Cow Slaughter and Animal Preservation Act, 1977 and the effect of the decisions of this Court, which leave only old and infirm buffaloes for slaughter. We, therefore, think it appropriate that the Government of India should be called upon to send a fresh report after studying the impact and effect of the working of Al-Kabeer upon the buffalo population of the Telangana region of Andhra Pradesh and also of the areas adjacent to Al- Kabeer, two years after the commencement of the operations by Al-Kabeer. It is not possible for us to pass any final orders on the basis of the Report now submitted, which as stated above, is based upon the statistics/census figures of cattle population including buffalo population for the period 1987 to 1993.
Accordingly, we call upon the Central Government to submit a fresh report in the light of the observations made herein within six months." In the aforesaid order, an interim order was passed saying that with effect from 1st April 1997 the company shall function at half of the installed capacity and not its full installed capacity and the appeals were directed to be listed after 6 months.
Pursuant to the order of this Court in the year 1997, a report was filed by the Central Government. In the direction made by this Court in 1997, this Court observed that the data starting from two years after the functioning of the Al-Kabeer abattoir (company ) would give the correct picture of its effect on live stock population in the surrounding areas and directed the Central Government to file the same. In the report filed by the Central Government data has been analysed through a comparison between a four year period immediately preceding the operation of the abattoir and four year period immediately after the functioning of the abattoir i.e. data between 1989-90 to 1992-93 was compared with data between 1993-94 to 1996-97. The data was compared by averaging the population of four year blocks before and after working of the abattoir.
After making the comparison, the following has been reported:
It is young stock and females over 3 years that had contributed to the sustenance of buffalo population. The increase in female and young stock clearly indicates that the functioning of the Al-Kabeer Abattoir has not resulted in depletion of buffalo population in Telangana region. There exists adequate potential of buffalo population in these areas to sustain the demand from different sources for the buffaloes including that of Al-Kabeer abattoir.
Increases in buffalo population, especially in the latest year i.e. 1996-97, do not substantiate any consistent decline in buffalo population as a result of functioning of the Al-Kabeer abattoir (company).
Though there is a decrease in cattle population, that may not be related to the functioning of the Al-Kabeer, as beef from cattle is banned from export.
Subsequently, in the year 1999 census data on cattle population of Andhra Pradesh namely 16th live stock census was submitted before this Court. As per the live stock census conducted, the total live stock population in the Andhra Pradesh State was calculated at 357.87 lakhs in 1999 with an increase of 8.7% over that of 1993 census. This increase was stated to be mainly due to the significant increase in bovine population to the extent of 22%.
On behalf of the appellants, the first question that was raised and not decided by this Court in its earlier orders but kept to be decided at the final stage of the appeals, was whether Al-Kabeer Unit (company) has been established in violation of location requirement, as mentioned in the LOI of the Central Government for issuance of industrial licence to it. According to the appellants, since the location of Al-Kabeer is in violation of location requirement, as mentioned in the LOI of the Central Government and also the prohibition zone imposed by the State Government, and as Al-Kabeer (Company) is located within 13 K.M. from the urban limit of Hyderabad city, it must be held that Al-Kabeer (Company) must close down its abattoir. It was also urged that the Andhra Pradesh Government, having issued a General Order banning location of industries in Medak District, where the unit of the Company was located, had wrongly issued permission to the company to run its abattoir and in that view of the matter the company must be directed to shut down its abattoir and the licence issued to it must be cancelled.
This submission was hotly contested by the learned counsel appearing for Al-Kabeer (Company). We have carefully examined the submissions of the learned counsel for the parties and also perused the records and the findings of the High Court regarding location requirement, as indicated in the LOI of the Central Government and the General Order of the State Government. In our view, this submission of the appellants, at this stage, cannot be accepted. At the outset, we may say that this question was not seriously argued by the learned counsel of the appellants before us, although in the written submissions filed by them, this question was tentatively raised. Since a submission was made on this account, we feel it appropriate to deal with this question. Before we deal with this question in detail, we may note that for the first time in this Court the appellants have alleged the fact that the Al-Kabeer unit (company) is located within 13 km. from the standard urban limits of the city of Hyderabad which falls within the prohibited zone.
Even assuming, distance prohibition would be applicable to the case of Al-Kabeer (company), we are still of the view that this distance prohibition may not stand in the way of Al-Kabeer from getting an industrial licence for the purpose of setting up the abattoir at the site in question. It is an admitted fact that in the application for grant of licence, Al-Kabeer (the Company), had stated the exact location where they were going to set up the abattoir, that is to say in Rudraram Village in the District of Medak of the State of Andhra Pradesh. When this application was processed by the Central Government, a thorough enquiry must have been made by it and only thereafter industrial licence was issued to the Company. It is true that before issuance of licence, LOI was issued by the Central Government only wherein, this location requirement was stated in a printed form. It is an admitted position that the Central Government did not make any query from the company about the distance between Rudraram Village, where the site is located, and the urban limits of the city of Hyderabad.
On a bare perusal of Section 11 of the IDR Act, it is evident that no person or authority shall, after the commencement of the Act, establish any industrial undertaking except in accordance with the licence issued in that behalf by the Central Government. That is to say, an embargo has been imposed on any person or authority to establish any new industrial undertaking before obtaining a licence from the Central Government. Subsection 2 of section 11 however says that a licence or a permission under Sub-section 1 to establish a new industrial undertaking may contain such conditions including condition as to the location of the undertaking as the Central Government may deem fit to impose in accordance with the Rules. This subsection 2 of Section 11 empowers the Central Government to impose conditions on the person or the authority as to the location of the undertaking. In our view, subsection 2 of Section 11 of the Act by which conditions can be imposed as to the location of the undertaking by the Central Government is only directory and it would be open to the Central Government to issue licence without giving any conditions to the company as to the location of the undertaking. It is significant to note that the legislature in sub-section 2 of Section 11 has used the word 'may'.
By issuing the Industrial licence to the Company, even after knowing the proposed location of the unit, it must be said that the Central Government waived the location requirements, as mentioned in its LOI with regard to this unit.
Economic liberalization was made by the Central Govt. on 25th of July, 1991 and following the said policy, the Government of Andhra Pradesh also issued a Notification on 3rd February 1992 which was issued as a follow up action of the Notification of the Central Government dated 25th July 1991 under which permission/license was required for industries located within 25 km from the periphery of standard urban area. The Notification dated 3rd February 1992 of the State Government specified areas which would fall within or outside 25 km. from the periphery of the standard urban area in order to enable the entrepreneurs to take appropriate action. According to the appellants, the company is located within Rudraram village which is a prohibited zone from the periphery of the city of Hyderabad and therefore the company, in terms of the Industrial policy of the State Government, was not entitled to get an industrial licence to run the slaughter house. Clause (2) of Paragraph 3 of the Notification specified the list of villages falling within the prohibited zone for which, location approval from the Central Government would be necessary except for non-polluting industries such as electronics, computer software and printing industries. In the present case, the activity of the company does not fall in the category of non-polluting industries. However, this notification contains two lists. One list is A and the other is B. List A specified all the villages within the standard urban area of Hyderabad.
Patancheru which falls within Medak District and is within the computation of 25 km. from the periphery of the standard urban area of Hyderabad falls under list B. Therefore, in terms of the distance there was requirement of obtaining an industrial licence by virtue of the Notification dated 3rd February 1992 of the State Government. In view of the admitted fact that industrial licence was granted by the Central Govt. on 11.11.1992 and permission to run the slaughter house was also granted by the State Government on the basis of the Industrial policy of the State Govt. of 3rd February, 1992, we are unable to hold that distance prohibition could be considered to be a ground either for cancellation of the industrial licence or for closing down the unit.
Apart from that, we may keep it in mind that in pursuance of the LOI granted by the Central Government and the various permissions granted by the State Government and other authorities, the company commenced construction of its factory in 1989. It should also keep in mind that before commencing its construction the following permissions/No Objection Certificates were taken by the Company:
No Objection Certificate for site clearance from APPCB.
No Objection Certificate from the Director of Animal Husbandry, A.P.
Letter of Intent from Ministry of Industry, Govt. of India.
Two NOCs. from the Gram Panchayat to locate the factory as well as commence construction.
Permission from Medical and Health Department, A.P.
Permission from the Director of Town and Country Planning.
Permission from Director of Industries, A.P.
NOCs. from National Airport Authority, Hyderabad and Madras.
NOC from AIR Headquarters, New Delhi.
It also appears from the record that the Industrial licence was granted by the Central Government on the strong recommendation of the State Government. The unit commenced production in April 1993 after dismissal of a batch of Writ Petitions challenging the permissions granted by various authorities to commence production including that of the APPCB. The unit achieved its full production in December 1993 and since then it is earning valuable and substantial foreign exchange for our country. Above all, the question on location, as noted herein earlier, was neither raised seriously before the High Court nor before us. It must also be noted that, in this regard various State authorities had granted permissions for the abattoir to be constructed and function at the selected site and production has been continuing for the last 10 to 15 years. That apart, the question on location requirement is always a question of fact which cannot be permitted to be raised at this stage before us. However, we keep it open to the Central Government and the State Government to consider the distance prohibition as indicated in the LOI and the Notification and General Order of the State Government for the purpose of shifting the site to some other alternative place which would satisfy the location conditions. Subject to the above, this question is answered in favour of the Al-Kabeer (company).
The next question that was urged by the learned counsel for the appellant before us which needs to be decided is whether Al-Kabeer (company) operates in violation of Environmental Acts and Rules.
According to the appellants, no study has been made of the prevailing environment and the impact of Al-Kabeer on it. Therefore, it was contended that the precautionary principle has been ignored by the authority before granting permission to Al-Kabeer to run the slaughter house.
The learned counsel appearing on behalf of Satyavani in C.A. No. 3967 of 1994 contended that APPCB by its consent order dated 21st December 1993 allowed limit for B.O.D. of 100 mg/Lit. whereas the maximum permissible limit specified in the Environment Protection Rules, 1986 was 30 mg./Lit (Rule 3, Schedule 1, Entry 50B).
According to the learned counsel appearing for Satyavani the limit for suspended solids allowed by APPCB of 100 mg/Lit was in excess of limit of 50 mg/Lit. allowed in Rule 3, Schedule 1, Entry 50B of the Environment Protection Rules, 1986. Therefore, it was contended that the consent of APPCB was in violation of the Act and Rules, and accordingly it must be quashed. It was also contended on behalf of Satyavani that since the samples collected on 6th August 1994 from Al- Kabeer show that its B.O.D. in fact reached 150 mg/Lit. which was much beyond the permitted limit of 30 mg./Lit. and its suspended solid discharge was recorded at 140 mg/Lit. which was much beyond the permitted 50 mg./Lit., the question of giving consent to Al-Kabeer by the authorities could not arise at all as it had clearly violated the maximum permissible limit specified in the Environment Protection Rules, 1986. Accordingly, permission granted should be withdrawn.These submissions were strongly disputed by the learned counsel for Al-Kabeer (company).
From a careful consideration of the rival submissions of the parties on the question of environmental pollution, we find that this question was not seriously argued by the appellants during the course of hearing that the company had violated the norms under Environment Protection Rules, 1986. Thus we may not permit the appellant to raise this question before us. However, as environmental pollution has now become a public nuisance, we thought it fit to go into this question and decide the same. We have carefully examined the rival submissions made before us by the learned counsel for the parties on the aforesaid question.
From the record it appears that the recommendations regarding environment made by Krishnan Committee so far as the abattoir is concerned, were accepted by the Central Government as would be evident from this Court's order dated 12th March, 1997. It also appears from the record that Al-Kabeer Company had invested huge amount for installation of elaborate anti-pollution equipment, and operates the same with consent obtained from APPCB. It is true that the standards prescribed by APPCB for Al-Kabeer while issuing its consent for slaughtering operation to begin, were indeed in violation of the Environment Protection Rules in so far as they prescribe a lower standard than was mandated by the aforesaid Rules. Under Rule 3 of the Rules, the State Boards are permitted to prescribe higher standards than those mentioned in the Rules but are not permitted to lower the standard. Considering the fact that the permission to operate the abattoir was granted by the APPCB, the State Government and also by various authorities of the State 10 to 15 years back and considering the fact that Al-Kabeer had installed elaborate anti-pollution equipment by investing huge amount, we are of the view that Al-Kabeer must be directed to comply with the Environment Protection Rules by lowering down the pollution levels at the abattoir to permissible limits, rather than to direct closure of the abattoir of the company. It also appears that the samples which were collected by the Department of Water and Waste Water Examination, Institute of Preventive Medicine, Narayanguda, Hyderabad from Al-Kabeer's abattoir indicated violation of the standards prescribed under Environment Protection Rules.
Though Al-Kabeer has installed elaborate anti-pollution equipment, it would be of no consequence if such equipment is in reality not bringing down the level of pollution below permissible limits. However, it cannot be overlooked that Al-Kabeer is continuing its operation for more than 10 years without any objection from the APPCB. Therefore, considering all the circumstances, we are of the view that directly ordering closure of Al-Kabeer Abattoir is not called for; rather directions may be given to APPCB to rectify its consent order in accordance with the Environment Protection Rules and also to direct Al-Kabeer to strictly comply with that rectified consent order and Environment Protection Rules. In the event abattoir fails to comply with such directions from the APPCB, it would be open to the authorities to direct closure of the Al-Kabeer unit.
We are taking this view keeping in mind that the appellants had not seriously argued, during the course of hearing before this Court, that the company had in fact violated the standards laid down in the Environment Protection Act and Rules.
It may also be noted that in the interim judgment dated 12.3.1997 reported in (1997) 3 SCC 707, this Court has noted the conclusions of the Central Government Committee in paragraph 2 wherein, it has recorded that the Committee had accepted the suggestions and recommendations made by the Krishnan Committee with regard to pollution of air and water. It has also been noted therein that the Environmental Audit Report and the Environmental Management Firm Report along with the Environmental Management Plan prepared by the company are acceptable. As already noted hereinearlier, the company has installed elaborate anti-pollution equipment, imported as well as indigenous. The company has been operating only after obtaining consent from APPCB which is regularly renewed. Insofar as standards for discharge of effluents from slaughterhouse and meat processing are concerned, the same is prescribed under Rule 3 read with entry 50-B of Schedule I of the Environment Protection Rules, 1986. In this connection Entry 50-B (b) of Schedule 1 of Environment Protection Rules 1986 is relevant as it prescribes the B.O.D., suspended solids & oil and grease limits. At this juncture it is also to be noted that Ministry of Environment, Government of India, by its letter dated 29th May 1995 fixed the standards for Al-Kabeer Exports Pvt. Ltd. at 100 B.O.D. and 30 B.O.D. for slaughterhouse and meat processing respectively. As Al- Kabeer has been operating on the basis of the norms specified by the Central Government and considering the fact that Al-Kabeer unit has been operating for more than 10 years without any objection form APPCB and keeping in mind the economic policy of the Central Government, we are of the view that Al-Kabeer may not be, at this stage, directed to stop their operation and close the unit. In view of our discussion made hereinbefore, and as APPCB reserves the right to take action against Al-Kabeer for violation of the terms and conditions imposed in its permission, it would be open for APPCB to direct Al- Kabeer to rectify the level of pollution below prescribed limits and in the event that it is not done they may direct Al-Kabeer to close down its abattoir. As noted hereinbefore, it is of course true that the prescribed limit of pollution by APPCB was in violation of the Environment Protection Rules, therefore in our view, directions must be given to APPCB to rectify its consent order and directions be given by them to the abattoir to comply with that rectified consent order in accordance with Rule 3 of the Environment Protection Rules.
In this connection, two further questions had arisen in relation to compliance with environment standards maintained by Al-Kabeer, which were raised by the appellant Shri Tukkoji, in C.A. Nos. 3964-65 of 1994.
The first question is whether the consent order of the APPCB was vitiated because the reports of the analysts were not made available to Shri Tukkoji prior to the issuance of NOC. Learned counsel appearing for Shri Tukkoji contended that the consent order was in derogation of the right of Shri Tukkoji to information in violation of Article 19(1)(a) of the Constitution. According to Shri Tukkoji, he was not only entitled to receive the reports of the analysts relating to the effects of the functioning of the abattoir but also to file objections prior to the issuance of N.O.C. This contention was accepted by the learned Single Judge of the High Court but was rejected by the Division Bench. The Division Bench in the impugned judgment observed as follows- " On a prima facie view of the various provisions of the Water Act and the corresponding provisions of the Air Act, in particular the provisions of sections 16, 17, 20 and 25 of the Water Act we are not inclined to hold at this stage that a third party has any right to seek information or material from the State Board at or before granting of consent by it under S. 25(3) of the Water Act. It is not as if aggrieved party is left without a remedy. After consent is granted any third party who feels aggrieved can make a complaint to the Court of a First Class Magistrate Apart from that the State Board has ample powers to review its order granting consent by modifying or revoking any existing condition" ( Emphasis supplied) We do not find any reason to disagree with this view of the Division Bench of the High Court. In this connection, we examined Section 25 of the Water Act in depth and, in our view, Section 25 of the Water Act does not confer any right on members of the public to demand information from the APPCB prior to issuance of NOC.
Therefore, it cannot be held, that the NOC was vitiated by reason of non-disclosure of information to the appellant Tukkoji prior to its issuance.
Thus, first question of Shri Tukkoji as argued by his learned counsel has no merit and it is hereby rejected. The second question raised is whether the consent order was vitiated because the APPCB was improperly constituted. It was contended on behalf of Shri Tukkoji that APPCB was not validly constituted and that the Chairman and Member Secretary of APPCB did not possess the qualifications required under the Water Act, and accordingly the Board as constituted was not competent to issue consent order. In order to answer this question it would be beneficial if we reproduce the relevant findings of the Division Bench which run as under :- "We are not unaware of the contention of counsel for the petitioners that the Pollution Control Board did not really consist of scientific experts, and that in that sense, issue of No Objection Certificate by that body may not be considered as a result of informed expert opinion. That brush can as well paint the opinion of Shri H.K. Babu, Secretary, Food and Agriculture, as also that of Shri R.V. Krishnan, Secretary, Energy, Forest, Environment, Science and Technology in the same hues. We are informed that some, at least, of the members of the Pollution Control Board was renowned scientists" It is true that Section 4(2)(a) of the Water Act requires the Chairman of the APPCB to be 'a person having special knowledge or practical experience in respect of matters relating to environmental protection or a person having knowledge and experience in administering institutions dealing with matters aforesaid, to be nominated by the State Government'.
Section 4(2)(f) of the Act requires the Member Secretary to possess "qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control." From the record, it appears that at the relevant time the Chairman and the Member Secretary of the APPCB did not possess these statutorily required qualifications. The observation of the High Court in the judgment that some of the members of the APPCB were scientific experts, does not address this specific breach of the statutory requirement. In this connection, we, however, need to look into the provisions under Section 11 of the Water Act, which provides in terms that "No act or proceeding of a Board or any committee thereof shall be called in question on the ground merely of the existence of any vacancy in or any defect in the constitution of, the Board or such committee, as the case may be." Therefore, applying Section 11 of the Act which clearly provides that no act or proceeding of APPCB or any committee thereof shall be called in question, it can safely be concluded that even if there was some defect in the composition of the APPCB, that would not invalidate the consent order issued by it.
Let us now come back to the most important question that needs to be decided in these appeals, which is about the issue of cattle depletion due to functioning of the Al-Kabeer abattoir. On this question, the appellant in C.A. No.3966/1994 advanced the following submissions :-
Since the Al-Kabeer project involves slaughtering of prohibited cattle, which can be statistically shown to be inevitable, and is also evidenced on video the Govt. has a constitutional duty under the second part of Art.48 of the Constitution to prevent such slaughter as well as a duty to enforce the A.P. Preservation of Cow Slaughter and Animal Preservation Act, 1977.
The slaughter rate of Al-Kabeer exceeds the renewal rate as would be evident from the reports submitted by the authorities before the High Court as well as before this Court.
The appellant Satyavani in C.A. 3967/1994 made the following submissions:
The report of the Central Govt. submitted on 12.9.1997 was misleading, because it had averaged, and then compared the figures for buffalo population in the four years before and after Al-Kabeer was set up, which disguises the fact that a decline in buffalo population had occurred subsequent to this setup. Further, the same persons responsible for preparing the earlier Govt. report of 1994- which was held to be misleading by this Court in its order dated 12.3.1997- were again involved in preparation of this report.
The abattoir stopped taking animals from its hinterland subsequent to the Court's order of 12.3.1997, and instead began importing animals from other States. Thus, the figures of 2003 Livestock Census are not relevant to the issue at hand, and the effect of the abattoir on buffalo depletion can only be judged on the basis of statistics of approximately two years after its commencement- as observed by this Court in its order dated 25.10.1994. Further, the 2003 Census itself shows a decrease in buffalo population in adjoining States of Karnataka and Maharashtra, from 1999 to 2003- indicating the effect the abattoir has had, through its importation of buffaloes from these States. Moreover, the figures in the 2003 Livestock Census show abnormal and unrealistic growth of cattle population in districts of AP, which can not be accepted.
The subsequent report of the Central Govt. dated 23.12.2003 itself vindicates the claim that cattle depletion has occurred due to Al-Kabeer's operations.
This depletion is not in relation to old and useless cattle, as Al-Kabeer necessarily must slaughter useful animals, for export, as pointed out by the Krishnan Committee Report.
There are also no sufficient number of useless animals to meet its requirement of 1.5 to 2 lakh buffaloes per year, as is evident from the figures of successive census carried out by the Andhra Pradesh Directorate of Economics and Statistics.
Further, the monitoring of Al-Kabeer, for compliance with the Andhra Pradesh Animal Preservation Act, is not effective, as reported by Dr. Jitendra Reddy, Specia
