IN THE SUPREME COURT OF INDIA

ORIGINAL CIVIL JURISDICTION

WRIT PETITION (CIVIL) NO. 260 OF 2004

Kalyaneshwari  …Petitioner

Versus

Union of India & Ors.                   …Respondents

J U D G M E N T

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 5th  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.