Bombay High Court: The Division Bench of Pradeep Nandrajog, CJ and Bharati Dangre, J. while hearing a writ petition concerning the health hazards being faced by the residents of Mahul and Amabapada, the bench held that,
“No family required to be rehabilitated as a consequence of slum clearance would be shifted to the PAP (Project affected Persons) colonies in Mahul or Ambapada and those who have been rehabilitated at the said two colonies under the slum rehabilitation schemes would be offered accommodation elsewhere”
Facts to be noted
Mahul and Amabapada are home to only a few local fishing communities and thick mangrove forests. State-owned refineries were established in the 1950s at Mahul with a view to gainfully make use of these lands with a negligible population.
Nine major industrial units exist at Mahul including refineries of Hindustan Petroleum Corporation Limited (HPCL), Bharat Petroleum Corporation Limited (BPCL), Rashtriya Chemicals and Fertilizers Limited, Bhabha Atomic Research Centre (BARC) as well as private industrial units such as Tata Power Thermal Power Plant, Sealord Containers and Aegis Logistics.
Petitioner challenged allotment of tenements reserved for Project Affected Persons (PAP) to them in a PAP colony by the name of Eversmile Layout, developed by a private builder named Dynamix reality in Mahul, Chembur. Present petitioners were declared to be PAPs due to the Tansa Pipeline Project which resulted in dwelling unit/slum located within 10 meters of Tansa Pipeline in Mumbai being demolished.
The land on which Eversmile colony is located was originally demarcated to be a No-Development Zone in the Draft Development Plan of 1984. State Government had acquired all such lands on account of being surplus. Further, it was said to be exempt under Section 20 of the Urban Land Ceiling Act, 1976 by State Government for the purpose of constructing residential quarters for the staff of BPCL.
Though in respect to the above, BPCL chose not to construct its staff quarters on the site where the PAP colony presently lies, eventually resulting in State Government modifying its order of exemption under Section 20 of Urban Land Ceiling Act to be for the rehabilitation of Slum dwellers and PAPs, at the request of Slum Rehabilitation Department and developer of PAP colony.
Supreme Court and this Court have passed orders, at the behest of refineries of the region, estopping the development of private residential buildings in the industrial belt.
Eversmile Colony posits three issues that render the Colony uninhabitable
- Proximity of the refineries to PAP colony has resulted in those petitioners who have been rehabilitated to the colony to suffer from severe health issues due to their exposure to high levels of carcinogenic air pollution
- Presence of residential premises in such close proximity poses a threat to the security of the industries and refineries, as well as to the safety of the residents themselves.
- PAP colony is bereft of hygienic conditions and basic amenities, including schools and medical centres.
In Charudatt Pandurang Koli v. Sea Lord, OA No. 40 of 2014, it was held that,
National Green Tribunal held that there is a perceptible threat to the health of the residents of villages Mahul and Ambapada due to prevailing air quality in the area. Sealord Containers along with BPCL and HPCL refineries were identified by the National Green Tribunal to be the primary pollutants in Mahul, Chembur.
NGT observed that the respiratory morbidity and study of the health of the residents of Mahul region done by KEM hospital shows that a majority of the residents showed acute syndrome of breathing difficulties, severe lung-related issues, dry coughs, eye and skin irritation, chronic fatigue and weakness.
Presence of VOCs (Volatile Organic Compounds)
Further, it is evident from the above judgment that the presence of VOCs (Volatile Organic Compounds) in Mahul is what makes the air pollution in the region particularly harmful for human health.
Supreme Court had also held that the judgment of the NGT attained finality and therefore is beyond the purview of being challenged in judicial proceedings, also on perusal of the reports of Maharashtra Pollution Control Board (MPCB), Central Pollution Control Board (CPCB) and NEERI shows that air pollution in Mahul continues to be disturbingly high and to this day, still poses a threat to human life.
On analysing the data of the report by NEERI submitted during the NGT proceedings also recorded the alarming levels of air pollution in Mahul. The said report also recorded the known impacts of VOCs on the health of individuals and notes that VOCs are known carcinogens and also records the symptoms and diseases afflicting people to exposed VOCs.
Thus, as per the reports of the various environmental agencies of the government, it is an admitted position that air pollution in Mahul, specifically in terms of the presence of VOCs is far higher than the permissible standards.
Report prepared by the IIT Bombay Experts
The report shows that the above-discussed health hazard is still present amongst the residents of Mahul. IIT recorded the prevalence of serious diseases such, as inter alia tuberculosis and cancer amongst the PAPs residing in Mahul.
On observing the detailed report of IIT it looked self explanatory portraying an irrefutable picture of the fate of those persons being compelled to live in Mahul against their will, not merely in terms of their health, but also the domino effect of their poor health on their ability to live a dignified life as self sufficient, productive members of society.
By relying on the Supreme Court case of Oswal Agro Mills Ltd. v. Hindustan Petroleum Corporation Ltd., it was observed that residential premises in the vicinity of such refineries can pose multi-faceted security risks. The risks were not just limited to the health of the residents, but a terrorist attack using these refineries as targets could lead to colossal destruction within the city.
In respect to the security concerns, State Government and Municipal Corporation had planned to allot 2000 police officers and constable’s homes in the Eversmile Complex. However, to this day not a single police officer has been ready to accept the homes allotted to them in Eversmile Complex due to the fact that they share the same concerns about safety and the exposure to the air pollution in the region.
Hence, it is apparent from the above state observations and the reports of MPCB, CPCB, NEERI and IIT that Mahul continues to be a dangerously polluted region.
According to the recommendations made by the IIT report, along with this Court orders, PAPs residing in Mahul will have to be shifted out of the colony, and further allotments of tenements in the Eversmile Colony should not be made to PAPs and slum dwellers.
High Court also stated that it is settled law that the International Covenant on Economy Social and Cultural Rights is binding upon the Government of India, as it is a multi-party treaty, ratified by India in 1976. Consequently, the obligations under the said covenant are enforceable in India.
In above terms, WP No. 14102 of 2018 is disposed of by declaring that NGT does not freeze the issue at the point of time when the judgment was passed and this would mean that air quality needed to be monitored constantly and if no improvement was found, suitable directions need to be issued keeping in view the prevalent air condition monitored over a period of 4 years.
In regard to WP (L) No. 874 of 2018 and WP (L) No. 3314 of 2017, no family to be rehabilitated to Mahul or Ambapada and the ones who are already accommodated at the said places should be offered some other accommodation and until then to be paid Rs 15,000 per month as rent along with security deposit of Rs 45,000.
The court directed compliance of order within a period of 12 weeks. [State of Maharashtra v. Charudutta Pandurang Koli, 2019 SCC OnLine Bom 1993, decided on 23-09-2019]