Full Judgment Text
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CASE NO.:
Appeal (civil) 1769 of 1994
PETITIONER:
Fertilizers and Chemi. Travancore Ltd. Emp. Assoc. & Ors.
RESPONDENT:
Law Society of India & Ors.
DATE OF JUDGMENT: 25/02/2004
BENCH:
CJI., V.N. KHARE & S.H. KAPADIA.
JUDGMENT:
J U D G M E N T
WITH
C.A. No. 1770 of 1994 & Civil Appeal No 4434 of 2004
@ SLP (c) \005\005CC No. 28455 of 1994
Kapadia, J.
Delay condoned.
Leave granted in SLP (c) .\005.CC No. 28455 of 1994.
By a voluminous judgment dated 14th February, 1994 in a
public interest litigation instituted by Law Society of India a Division
Bench of the Kerala High Court directed Fertilizers and Chemicals,
Travancore Ltd. to de-commission and empty the ammonia storage
tank at Willingdon Island within three months as the said tank was
vulnerable to major leaks in the event of an air crash, sabotage and
earthquake.
Fertilizers and Chemicals Travancore Ltd is a public sector
undertaking which manufactures chemicals fertilizers to the extent of
4% of total fertilizer production in the country. Ammonia is the
chemical used as raw material in production of fertilizers like Urea,
Ammonium Sulphate and Ammonium Chloride. Ammonia imported
in special refrigerated ships is stored in the storage tank located in
Willingdon Island. It is pumped from the ships into the storage tank
at an atmospheric pressure. The tank was designed in March, 1973
and it was commissioned in August, 1976 to receive liquid ammonia
from special refrigerated ships. The ammonia stored in this tank is
transferred into railway wagons which carry liquid ammonia to the
Cochin Division of the company where it is stored in a bigger
ammonia storage tank before it is pumped to various consuming
plants. The complaint of the original petitioner was of massive
environmental pollution caused by the existence of the tank. The
original petitioner anticipates devastating catastrophe of exterminating
large population of Willingdon Island and the city of Cochin in the
event of a major leak in the said ammonia tank. In this connection the
original petitioner relied upon accidents which have taken place in
Soviet Union and Pakistan where leakages developed in the plants
injuring thousand of persons. According to the original petitioner in
the Willingdon Island there is an airport which is in the vicinity of
tank and if by chance an air crash take place it would lead to human
tragedy. It was further stated that such leakage in existing ammonia
storage tank cannot be ruled out and in which event the fire force,
police, navy and district health authorities were not capable to provide
adequate safety measures.
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The High Court came to the conclusion that the environmental
imperative is ultimately a matter of public rights and duties. That
effective environmental protection and improvement is a matter of
legal rights and duties. The High Court examined two questions viz.
possibility of operational failure of the tank which weighs 10,000
tonnes and leakage of ammonia on account of rupture in the tank
which would result in an uncontrolable devastation of the entire living
population in the Willingdon Island, city of Cochin and surrounding
places. The High Court further observed that major leak could be
caused by air crash in the vicinity of the tank as there was an airport in
the vicinity or by an act of sabotage or by earthquake which would
lead to loss of human life on tragic scale. Consequently it directed the
company to close down the tank and not to operate the tank in the
Willingdon Island. Being aggrieved the Association has come by way
of civil appeal to this Court.
Two questions arise for determination in these civil appeals viz.
location of the tank and structural integrity of the tank. Since the
matter is of a technical nature this Court appointed M/s Engineers
India Limited (in short ’EIL’), New Delhi to re-examine all the issues
and submit its report. The report dated December 24, 2003 has now
been submitted. It is ordered to be taken on record. In the said report
EIL has given technical details of the foundation of the tank at
Annexure-II. Clause 4.1 deals with adequacy of foundation. EIL
carried out a hydrostatic test under which the foundation was
progressively loaded and readings were accordingly recorded. After
carrying out the test EIL has opined that the tank can continue in
service in its present condition subject to certain measures being taken
by the company as suggested in the report to further enhance the
safety in the operation of the tank. Similarly EIL also examined
structural integrity of the tank, soundness of accessories and
connected systems. It also took assistance of specialized agencies in
this regard. EIL also examined risk factors including the location of
the tank and in this connection EIL has also considered the nature of
operations and the handling of the toxicity of ammonia. Based on the
results of various studies carried out on the above items EIL has
opined that the tank can continue in service in its present condition
subject to certain measures suggested in the report. EIL further
examined chronology of leak history collected from the company
from January, 1985 till December, 2003 and has opined that all such
leaks had developed outside the storage tank at the time of loading
and unloading and not on account of failure of structural integrity. It
further found that most of the leaks during the above period were on
account of maintenance related problems and such leakages can be
contained to a minimum with systematic planning, monitoring and
improvement in system. EIL further examined the possibility of
operational failure from connected systems viz. safety valves, pipes
and fittings. EIL has suggested steps and measures to be taken to
contain such operational failures. EIL has further commented about
steps taken by the company to implement recommendations given by
experts in the past to contain corrosion of components. EIL has
further stated that company has undertaken from time to time safety
audits. The original petitioner has relied upon observations of Dr.
Campbell who has made a detailed study on the subject. However, his
study has been confined to the documents on record. Dr. Campbell
has not visited the site at any time. However, he is an expert and we
respect his opinion. Dr. Campbell has opined that worst cases like
tank rupture, terrorist attack and earthquake could occur. However,
he has also opined that containment of small leakage by proper
operational procedure and maintenance practices is possible. In fact,
Dr. Campbell has opined that relocation of tank to new site will not
solve the perceived major hazard. He considered the location of
Airport as a significant risk factor. In the light of the opinion
expressed by Dr. Campbell, EIL carried out a separate study on Risk
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Assessment and has made suggestions as contained in the report to
contain the risk factor.
Taking into account the report in its entirety, the conclusion of
EIL is that the tank can continue in service in its present condition
subject to certain measures being taken by the company as suggested
in the report to further enhance the safety in operations.
We may deal with the arguments advanced on behalf of the
original petitioner. It was contended that in the event of earthquake or
terrorists attack or sabotage or an air crash into the tank from the
nearby Airport there would be human tragedy caused on account of
leakage of ammonia from the storage tank and, therefore, the said tank
should be relocated. We do not find any merit in this argument as
stated in this case. As stated by Dr. Campbell relocation is not the
solution. We are mainly concerned with two issues viz. structural
integrity of the tank and its operations. On both these issues EIL has
recommended continuance of the tank in its present condition subject
to certain measures being taken by the company. The company has
taken those steps. Sabotage, attack by terrorists, earthquake etc. are
all unenforceable events. We have to strike a balance between
existing Utilities which exist in public interest on one hand and human
safety conditions on the other hand. It is not in dispute that such
plants are needed for the welfare of the Society. In modern times we
have nuclear plants which generate electricity. Their structural
integrity and their operations are vulnerable to certain risks. However,
generation of electricity is equally important and within the prescribe
limits Society will have to tolerate existence of such plants. It is for
this reason that we called for a report from EIL so that they can
examine the structural integrity of the tank, its operations and the
measures which are required to be taken to minimize the risk factors.
If the arguments of the original petitioner is accepted then no such
utility can exist, no power plant can exist, no reservoir can exist, no
nuclear reactor can exist. We do not discount such risks but we have
to live with such risks which is counterbalanced by services and
amenities provided by these utilities.
Accordingly we dispose of these appeals in terms of the report
of EIL dated 24th December 2003.