Pollution Control Board Ii Vs. Prof. M.V. Nayudu & Ors  INSC 679 (22
Appeal (civil) 372 of 1999 Appeal (civil) 373 of 1999
M. JAGANNADHA RAO J.
earlier occasion, in this very case, this M.V. Nayudu
( 1999(2) SCC 718) ( dated 27.1.1999) referred to the 'precautionary principle'
and the new rule of 'burden of proof' in the matter of environmental pollution.
This Court in that judgment emphasised the need for scientific inputs before
adjudicating complicated issues of pollution to environment. The said approach
of this Court was based upon contemporary trend in the adjudication of
environmental matters in various countries and was not intended to restrict the
powers of this Court under Article 21 of the Constitution of India to safeguard
environment from pollution.
efforts to get at the best scientific evidence on the issues involved in the
case, have yielded satisfactory results in the sense that we have today greater
confidence about the correctness of our conclusions and further that this is a
fit case for affirming the orders of the appellant ( Andhra Pradesh Pollution
Control Board) not to grant 'consent' to the seventh respondent ( M/s. Surana
Oils & Derivatives (India) Ltd.) under the statute for establishing its
industry. We are now more sure that, on facts, this is a pre-eminently fit case
which requires grant of an injunction to prevent irreversible pollution to the
drinking water reservoirs of Osman Sagar and Himayaat Sagar catering to the
needs of over 50 lakhs people, in Hyderabad and Secunderabad.
water is of primary importance in any country. In fact, India is a party to the Resolution of the
UNO passed during the United Nations Water Conference in 1977 as under:
people, whatever their stage of development and their social and economic
conditions, have the right to have access to drinking water in quantum and of a
quality equal to their basic needs." Thus, the right to access to drinking
water is fundamental to life and there is a duty on the State under Article 21
to provide clean drinking water to its citizens.
to the above right declared in the Union of India ( 2000(7) Scale 34 ( at
p.124), Kirpal J observed:
is the basic need for the survival of human beings and is part of right of life
and human rights as enshrined in Article 21 of the Constitution of India....." There is therefore need
to take into account the right to a healthy environment along with the right to
sustainable development and balance them.
human rights to healthy environment and sustainable development:
is building up, in various countries, a concept that right to healthy
environment and to sustainable development are fundamental human rights
implicit in the right to 'life'.
Supreme Court was one of the first Courts to develop the concept of right to
'healthy environment' as part of the right to "life" under Article 21
of our of India ( 1984(3) SCC 161)]. This principle has now been adopted in
various countries today.
today's emerging jurisprudence, environmental rights which encompass a group of
collective rights are described as "third generation" rights. The
"first generation" rights are generally political rights such as
those found in the International Convention on Civil & Political Rights
while "second generation" rights are social and economic rights as
found in the International Covenant on Economic, Social and Cultural Rights.
to Healthy Environment". (See Vol.25) 2000 Columbia Journal of
Environmental Law by John Lee P.283, at pp.293-294 fn.29) The right to
sustainable development has been declared by the UN General Assembly to be an
inalienable human right ( Declaration on the Right to Development )(1986). The
1992 Rio Conference declared that Human beings are at the centre of concerns
for sustainable development. Human beings are entitled to a healthy and
productive life in harmony with nature. (Principle 1).
order to achieve "sustainable development, environmental protection shall
constitute an integral part of development process and cannot be considered in
isolation of it". The 1997 Earth Summit meeting of 100 nations in New York reflected the above principles.
E.C. Council, the need to promote sustainable development while taking into
account the environment.
C.M.L.R.331)(1997) (ibid Columbia Journal of Environmental Law, p. 283) Eur.Ct.H.R.(Ser.A)
1994), the European Court at Strasbourg has held that the result of
environmental degradation might affect an individual's well being so as to
deprive him of enjoyment of private and family life. Under Article 8 of the
European Convention, everyone is guaranteed the right to respect for his
private and family life. ( See also, Powell & Rayner U.K. ( 172 Eur. Ct H.R.(Ser.A, p.5)(1990). The Inter-
American Commission on Human Rights has found a similar Amer.C.H.R. 7615
OEA/Ser.L.V/II/66 Doc.10 rev. 1 (1985). The Commission found that Brazil had violated the Yanomani Indians'
right to life by not taking measures to prevent the environmental damage. The
Philippine Supreme Court dealt with the action against Government not to
continue licensing agreements permitting deforestation so that the right to a
'balanced and healthful ecology in accordance with the rhythm and harmony of
nature' is not affected. ( Minors Resources ( 33, I.L.M. 173)(1994). The
judgment was based on 'intergenerational responsibility'. In Constitutional
Court of Columbia ( 17.6.1992) held in favour of the right to healthy environment
as a fundamental human right and treated the right as part of customary
international law. The Court permitted popular action mechanism. The Supreme
Court of South Africa, in a recent case in Wildlife Society of Southern Africa
& Tourism of the Republic of South Africa and Ors. ( Dt.27.6.1996)( 1996(9) BCLR 1221 (Tk); 1996
SACLR LEXIS 30) dealt with the right to healthy environment.
60 nations since 1990 have recognised in their constitutions a right to a
healthy environment as a corollary duty to defend the environment. ( Columbia
Journal of Environmental Law, ibid PP.318-319).
the concept of a healthy environment as a part of the fundamental right to
life, developed by our Supreme Court, is finding acceptance in various
countries side by side with the right to development.
after 27.1.99 judgment:
shall now refer to the events subsequent to our order dated 27.1.99. They are
question is whether in the event of the seventh respondent being permitted to
establish its industry within 10 Kms. of the lakes - notwithstanding the
Government's policy to the contrary and the refusal of the appellant Board to
grant NOC - there is likelihood of serious pollution to the drinking water in
these lakes. This Court in its judgment dated 27.1.99 referred the said
question to the National Environmental Appellate Authority ( constituted under
the National Environmental Appellate Authority Act, 1997) for its opinion. The
said authority visited the site of the industry at Peddashpur village near Hyderabad and submitted a detailed and
exhaustive report to this Court, after receiving oral and documentary evidence.
Report went against the seventh respondent industry.
industry filed objections to the said Report.
the matter was thereafter heard, the seventh respondent industry relied upon an
order passed by the appellant-Board on 16.7.97, suggesting that if certain
safeguards were provided by the industry to prevent pollution, NOC could be
granted. The said order had to be passed at one stage by the Board because of
the direction of the Government of Andhra Andhra contained in an order granting
exemption from the 10 KM rule.
this Court heard arguments on the merits on the question of validity of the
exemption granted by the Government, this Court wanted to first ascertain -
without prejudice to the contentions of the parties - whether the precautions
which were suggested by the appellant Board on 16.7.97 pursuant to the
directive of the State Government would be adequate and whether any further
precautions were to be taken. The limited question relating to adequacy or
otherwise of the "safeguards" as stated above was then referred to
another expert body, namely, the University Department of Chemical Technology,
( Autonomous), Matunga, Bombay, headed by Prof. D.N. Bhowmick. It was stated in
the said order of this Court that Prof. Bhowmick could take the assistance of
the National Geophysical Research Institute, Hyderabad (hereinafter called the 'NGRI').
Dr. Bhowmick submitted his Report dated 16.8.2000 together with a report of
June 2000 furnished by the NGRI, Hyderabad. In as much as the Reports - particularly, that of NGRI- had gone
against the 7th respondent - industry, it again filed objections thereto.
then finally heard learned Additional Solicitor General of India, Sri R.N. Trivedi
for the appellant Board and of Sri P.S. Narasimha for the writ petitioner
(respondent 1) who supported the appellant and Sri A.Subba Rao,
learned counsel for the 7th respondent- industry. Thus, we have now the Report
of the National Environmental Appellate Authority, the Report of Dr. Bhowmick,
( Bombay) and the Report of the National
Geophysical Research Institute, (NGRI) Hyderabad.
facts leading to the grant of exemption:
now refer to certain basic facts. The Ministry of Forests and Environment,
Union of India issued a Notification dated 27.9.88 listing various industries
as hazardous and included them in a 'Red' list. Item 37 of the said list of
hazardous industries is the industry which produces 'Vegetable oils including
solvent extracted oils'. The above notification was expressly stated to be
issued by the Government of India in exercise of its powers vested under the
Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and
Control of Pollution) Act, 1981 and the Water (Prevention and Control of
Pollution) Cess Act 1977 and the Environment (Protection) Act, 1986, directing
that whenever any industry sought consent from the Pollution Control Boards,
the said Boards, "while processing the consent application, should decide,
keeping in view the pollution - causing potential of the industry, as to which
category the industry belongs." Consequent to the directive of the Union
Government the State of Andhra
issued notification in GO 192 dated 31.3.94 (Municipal Administration).
Therein, the State Government relied upon the interim report of an Expert
Committee of the Hyderabad Metropolitan Water Supply and Sewerage Board, called
HMWSSB), and prohibited industries being located within 10 K.M. of the two
spite of the prohibition contained in GO 192 dated 31.3.94 prohibiting
industries within 10 KM. of the reservoirs, the seventh respondent industry
purchased land of 12 acres on 26.9.95 in Peddashpur village situated on the
outskirts of Hyderabad, within 10 KM of the reservoirs.
Initially, the industry applied for consent from the appellant Board in
November 1995, through the Industries Department of the State Government. The
State of Andhra Pradesh, by letter dated 28.11.95, wrote to the Government of
India on 28.11.95, recommending grant of letter of intent in relaxation of 10
K.M. rule, subject to the industry obtaining NOC from the appellant Board. On
9.1.96, Government of India gave letter of intent but required the industry to
obtain No Objection Certificate from the environmental authority of the State.
that stage, the Government re-affirmed the 10 K.M. prohibition in GO 111 dated
8.3.96, after obtaining the second interim report of the HMWSSB.
thereto, in the pre-scrutiny by the Single Window Clearance Committee Meeting
of the Pollution Control Board held on 24.5.96, the application of the industry
stood rejected because of the 10 K.M.prohibition.
the industry proceeded to obtain permission from the Gram Panchayat on 31.5.96
for establishing a 'factory'. Even though, on 31.5.96 the Commissioner of
Industries, specifically informed the industry that it should better select an
alternative site, instead of heeding to the said advice, the industry obtained
permission of the District Collector on 7.9.96 for change of land use from
agricultural to non-agricultural use. It then proceeded to execute various
civil works in spite of the 10 k.m.
the Industry proceeded further with construction of civil works and then
applied to the appellant Board on 7.4.97 under Section 25 of the Water Act for
permission to establish the factory. One of the bye-products mentioned in the
said application was:
spent bleaching earth and carbon and spent nickel catalysts".
1.6.97, the appellant Board wrote to the Commissioner of Industries that the
industry would be generating 'nickel' catalyst and other pollutants which could
find their way to the lakes either directly or indirectly. Even the solid waste
such as activated carbon bleaching earth and sodium sulphate might find entry
during rainy season from the storage yard resulting in polluting to lakes.
spite of the said opinion of the appellant Board, the Commissioner of
industries, in his letter dated 6.6.97 stated that there would be no liquid
effluent or acidic fumes and that the limited aqueous effluent was totally
bio-degradable and the solid wastes were disposable.
25.6.97, the appellant Board once again rejected the application of the
industry inasmuch as the said industry was in the 'Red' list annexed to the
Notification dated 1.2.89 of the Ministry of Forests & Environment,
Government of India.
with the above problems, the industry approached the State Government on
24.6.96 seeking exemption from the 10 k.m. rule contained in GO.111 dated
8.3.96 on the ground that it had invested huge amounts to establish the
industry and that it had almost completed the civil works, and had purchased
machinery and installed the same. The State Government, in spite of the
prohibitory directions issued by it earlier, issued GO. 153 dated 3.7.97
granting exemption from GO 111 dated 8.3.96 on the ground that the Government
of India had issued letter of intent on 9.1.96, that the Commissioner of
Industries, in his letter dated 6.6.97 opined that there would be no liquid
effluents and that the solid wastes would be disposable. Government then
granted exemption stating as follows:
Government had considered the matter in its entirety and feel that if proper
control over treatment of aqueous and solid wastes is exercised, then there can
be no objection to setting up of the industry under reference at the proposed
Government then directed the Board to prescribe conditions for
treatment/disposal of aqueous/solid waste.
by the above direction, the appellant Board passed an order on 16.7.97
requiring various precautions to be taken by the industry. (In fact, after
8.3.96, Government of Andhra Pradesh issued GO 181 dated 7.8.1997 modifying GO
153 dated 3.7.97 and clarifying that the exemption granted did not relate to para
(1) of GO 111 but related only to para 3(f)), that para being the one which
related to the 10 K.m.
the Society for Preservation of Environment and Quality Life ( SPEQL) filed
for quashing the exemption order in GO 153 dated 3.7.97 and obtained stay on
appellant-Board stuck to its decision to refuse NOC. On 30.7.97, it finally
rejected the application for NOC relying upon GO 111 dated 8.3.96 and also upon
the Government of India's notification dated 1.2.89 which showed this type of
industry in its 'Red' list. The Board stated that it was not desirable to locate
such an industry in the catchment area in view of GO. 111 dated 8.3.96. It also
referred to the fact that earlier the Board had already rejected the NOC on
24.5.96 at the pre-scrutiny level.
by the order of rejection dated 30.7.97 of the appellant Board, the
seventh-respondent industry filed appeal under Section 28 of the Water Act,
1974 before the appellate authority. For the first time, in the said appeal, it
filed an affidavit of Prof. M.Santappa,
( a former Vice Chancellor) who was the then Scientific Officer of the Tamil Nadu
Pollution Control Board. The said opinion was in favour of the industry.
order dated 5.1.98, the appellate authority (presided over by a retired Judge
of the A.P. High Court) allowed the appeal and set aside the orders of the
Board. It held that the categorisation into 'Red' as made by the Government of
India on 1.2.89 was applicable only to the industries set up in the Doon valley. It relied on the affidavit of Prof.M.Shantappa
to the affect that the industry had adopted the latest technology which was
eco-friendly and that the Chairman of the Board of Directors of the industry
was Dr.Siddhu, formerly Director General of CSIR, that the technology was
obtained by the industry from the Indian Institute of Chemical Technology,
Hyderabad (IICT) which issued a certificate that the industry will not
discharge any acidic effluents and solid wastes, and that they could be
collected in M.S.Drums mechanically. The appellate authority referred to Dr. Santappa's
report which stated that none of the bye products would fall on ground and that
the conditions laid down by the Technical Committee of the appellant Board on
16.7.97 would be fulfilled.
would be no liquid effluents or acidic fumes as certified by IICT. The nearest
spread would be 8.5 Kms.
was no possibility of seepage into the reservoirs.
appellate authority also held that principle of 'promissory estoppel' applied
inasmuch as permission for change of land-use was given and permission to erect
factory was also given. It was brought to the notice of the said appellate
authority that under the Water Act, long before the State Government issued the
prohibiting notification, there was an earlier categorisation dated 27.9.88
made by the Government of India showing 'Vanaspati Hydegenerated vegetable oils
for industrial purposes' in the red category. Even so, the appellate authority
allowed the appeal of the 7th respondent filed under Section 28 of the Water
(Prevention and Control of pollution) Act, 1974 and directed NOC to be issued
by the appellant.
petition 2215/98 was a PIL case filed for quashing the order dated 5.1.98 of
the appellate authority. The said writ petition and the writ petition of SPEQL (
WP. 16969/97 already referred to) and the W.P. 11803/98 filed by the
respondent-industry seeking mandamus against the appellant Board for grant of
NOC, were all disposed of by the High Court on 1.5.98, upholding the orders of
the appellate authority and directing grant of NOC by the appellant.
present appeals have arisen out of the said judgment. We first rendered the
judgment dated 27.1.99 as stated earlier. We have already set out the
subsequent facts relating to the reference made by this Court to the National
Environmental Appellate Authority on the main point relating to pollution and
also to its report dated 25.6.99. Further, we have said that this Court then
made a further reference by order dated 5.5.2000 to the University-Department
of Chemical Technology, Bombay and the latter submitted its Report dated
16.8.2000 together with Report of National Geophysical Researach Institute,
Hyderabad of June, 2000.
following points arise for consideration:- (1) Whether, in view of Sub-section
2(b), 3(2) and 5 of the Environment (Protection) Act, 1986 and the notification
issued by the Central Government on 27.9.88 and the further notification issued
by the State Government on 31.3.94 and 8.3.96 as delegate of the Central
Government, totally prohibiting location of following industries in an 'area',
it was permissible for the State Government to issue an exemption on 3.7.97 for
an individual hazardous industry within the area, even if it be by way of
asking the industry to provide safeguards? (2) Whether, in view of Sub-sections
2(e), 2(k), 17, 18 and 19 of the Water (Prevention and Control of Pollution)
Act, 1974, if the State Government had issued notification totally prohibiting
polluting industries in the area, and if the State Pollution Board had rejected
the request for location of a polluting industry within the area, it was
permissible for the Government to grant exemption for a single industry within
the prohibited area? (3) Whether in the light of the Reports of (a) the
National Environment Appellate Authority, New Delhi, (b) the University Department of Chemical Technology, Bombay and (c) the National Geophysical
Research Institute, Hyderabad, the 7th respondent industry could
claim exemption from the 10 KM. prohibition and whether such an exemption could
have been granted? (4) Whether in spite of the prohibition contained in Section
25 of the Water (Prevention & Control of Pollution ) Act, 1974 that
industries should not be established without consent of the appellant-Board,
the seventh respondent could have proceeded with establishing the industry and
could plead equities or rely on the principle of promissory estoppel? (5) On
the question of establishment of 'Environmental Courts', to what extent, the
States and Union Territories have taken steps to have environmental scientists/experts
in the various environmental tribunal or appellate bodies, as directed in the
earlier judgment? (6) To what relief? Points 1 and 2:
necessary first to refer to the following provision of the Environment
Section 2(b), 'environmental pollution' means any solid, liquid or gaseous
substance present in such concentration may be, or tend to be, injurious to
environment. Section 2(e) defines 'hazardous substance' as any substance or
preparation which, by reason of its chemical or physio-chemical properties or
handling, is liable to cause harm to human being, other living creatures,
plants, micro-organism, property or the environment. Section 3 refers to the
extensive process of the Central Government to take measures to protect and
improve environment. Sub-clause (2) permits measures to be taken ( see clause
(v)) by imposing "restriction of areas in which industries, operations or
processes or class of industries, operations or processes shall not be carried
out or shall be carried out subject to certain safeguards." Section 5
deals with the power of the Central Government, to issue directions to any
person, officer or any authority and such person, officer or authority shall be
bound to comply with such conditions.
to Section 5 clarifies that the said power to issue directions includes the
power to direct:
the closure, prohibition or regulation of any industry, operation or process;
or (b) stoppage or regulation of the supply of electricity or water or any
other service." The notification of the Central Government dated 27.9.1988
(Ministry of Forests and Environment) was issued expressly in exercise of
powers of the Central Government under the Environment (Protection) Act, 1986
the Water (Prevention and Control of Pollution) Act, 1974 and the Air
(Prevention and Control of Pollution) Act, 1981. It stated that industries were
being classified in lists 'Red, Orange and Green' and that "when an
industry seeks consent from the Pollution Control Board, as required by the
above Acts, the Board which processing the consent application should decide,
keeping in view the pollution causing potential of the industry, as to which
category, the 'environmental safeguards' should be determined". This is a
general notification. Item 37 in the red list refers to an industry producing
'vegetable oils including solvent extracted oil'. No doubt, the subsequent
notification dated 1.2.1989 as pointed by the appellate authority under Section
28 related to red category industries for the Doon Valley and was issued under
Section 3(2)(v) of the Environment (Protection) Act, 1986 and Rule 5(3)(d) of
the Environment (Protection) Rules, 1986 for the purpose of restricting
industrial units in Doon Valley.
assuming that notification dated 1.2.99 did not apply to Andhra Pradesh, the
notification dated 27.9.88 and the State Government's notification in GO 111
dated 8.3.96 are sufficient for the present purposes.
pointed out in para 2(c) of the Rejoinder affidavit of the appellant-Board, the
power to issue directions under Section 5 of the Environment (Protection) Act,
1986 and its Environment (Protection) Rules, 1986 were amended in 1988 (S.O.
152-E) were delegated to the State of Andhra Pradesh in 1988 in S.O.152-E.
The said notification reads as follows:
dated 10.2.1988: In exercise of the powers conferred by Section 23 of the
Environment (Protection) Act, 1986 the Central Government hereby delegates the
powers vested in it under Section 5 of the act to the State Governments of
Andhra Pradesh, Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Karnataka, Kerala,
Madhya Pradesh, Mizoram, Orissa, Rajasthan, Sikkim and Tamil Nadu subject to
the condition that the Central Government may revoke such delegation of powers
in respect of all or any one or more of the State Government or may itself
invoke the provisions of Section 5 of the Act, if in the opinion of the Central
Government such a course of action is necessary in public interest." The
State of Andhra Pradesh could therefore issue orders in GO
111 dated 8.3.96 prohibiting the location of industries in specified areas.
view, GO 192 dated 31.3.1994 and GO 111 dated 8.3.1996 are therefore referable
to the said delegated authority permitting the State Government to impose
"total prohibition" of polluting industries to be located within 10 Kms.
of the two reservoirs. The notification dated 31.3.1994 prohibited any
polluting industries, Major Hotels, residential colonies or other
establishments that generate pollution in the catchment areas of these two
lakes within 10 Kms radius from the full tank level. The appellant Board and
the MD of the Hyderabad Water Supply and Sewage Board, the HUDA and the
Collector of three Districts, Mehboobnagar, Ranga Reddy and Hyderabad were directed to scrupulously
protect the water in the two lakes from imminent danger of pollution. GO 111
dated 8.3.1996 (Municipal Administration and urban Development Department)
issued in modification of GO 192 dated 31.3.1994 re-iterated the same
prohibition as follows in clause 3(f). It stated:
To prohibit polluting industries, major hotels, residential colonies or other
establishments that generate pollution in the catchment of the lakes up to 10 Kms.,
from full tank level of the lakes as per list in Annexure I.
To prohibit pollution industries within 10 Kms., radius (in both on upstream
and down stream side of the lakes to prevent acidification of lakes due to air
There shall be total prohibition of location of industries in the prohibited
zone." The above notification was issued after approval by the Chief
Secretary or the Chief Minister. Item 38 thereof refers to Peddashpur Village, which is within 10 KM of these two reservoirs.
stated earlier, on 3.7.1997, the State Government (Industries and Commerce)
Department issued notification granting "exemption" from the 10 KM
rule mentioned in GO 111 dated 8.3.96 later amended by GO 181 dated 7.8.1997 as
exempting para 3(f) of GO 111 and directed A.P.Pollution Control Board:
to prescribe conditions for treatment/ disposal of aqueous/solid wastes."
The result of exemption from the purview of para 3(f) of GO.111 dated 8.3.96
was that the seventh respondent industry could be located within 10 KM of the
question is whether this exemption can be valid ? Under Section 3(2)(v) above
extracted, the Central Government or the State Government as its delegate,
could issue directions as permitted by Section 5. Now Section 3(2)(v) permits
restriction specifying "areas" in which industrial operations or
processes shall not be carried out or shall be carried out subject to certain
safeguards. The notification issued by the State Government in GO 111 dated
8.3.96 falls within the first part i.e. where industries shall not be carried
is a total prohibition within 10 KM of the two reservoirs. When such a
prohibition was in force, the State Government could not obviously grant any
exemption to a specified industry like the seventh respondent, located within
the 'area'. Nor was it permissible for the State to direct the appellant-Board
to prescribe conditions for grant of NOC.
to the provisions of the Water Act, 1974, it is clear that in view of
Sub-sections 2(e), 2(k) read with Sections 17 and 18 of the Water Act, the
fundamental objective of the statute is to provide clean drinking water to the
citizens. Having laid down the policy prohibiting location of any industries
within 10 Kms under GO 111 dated 8.3.1996, the State could not have granted
exemption to the 7th respondent industry, nor to any other industry, from any
part of the main GO 111 dated 8.3.96. Section 19 permitted the State to
restrict the application of the Water Act, 1974 to particular area, if need be,
but it did not enable the State to grant exemption to a particular industry
within the area prohibited for location of polluting industries. Exercise of
such a power in favour of a particular industry must be treated as arbitrary
and contrary to public interest and in violation of the right to clean water
under Article 21 of the Constitution of India.
above reasoning given by us does not mean that exemption can be given to all
industries within a particular radius of the reservoirs unmindful of the
possible danger of pollution to the lakes. In fact, exemption granted even to a
single major hazardous industry may itself be sufficient to make the water in
the reservoirs totally unsafe for drinking water purposes. Government could not
pass such orders of exemption having dangerous potential, unmindful of the fate
of lakhs of citizens of the twin cities to whom drinking water is supplied from
these lakes. Such an order of exemption carelessly passed, ignoring the
'precautionary principle', could be catastrophic.
the GO 153 dated 3.7.97 granting exemption must be held to be without statutory
backing and also wholly arbitrary and violative of Article 21.
1 and 2 are decided against the 7th respondent.
earlier judgment in A.P. Pollution Control SCC 718), this Court had occasion to
refer to the basis of the precautionary principle and to explain the basis and
content of the very principle. This Court also explained the new principle of
burden of proof.
it was for the 7th respondent industry to establish that there would be no
danger of pollution to the two reservoirs even if the industry was established
within 10 Km radius of the said reservoirs.
present proceedings, the 7th respondent has failed to discharge the said onus.
the State Government, the industry produced no expert opinion except to say
that it had got the new technology from the Indian Institute of Chemical
Technology, Hyderabad ( IICT) and it relied on a statement of Dr. Siddhu,
Chairman of the 7th respondent and formerly Director General of CSIR. The
affidavit of Dr. Santappa was produced only before the appellate authority
under Section 28 of the Water Act, 1974.
in the light of the subsequent reports now obtained by this Court, the position
is quite clear.
shall now refer in some detail to the three exhaustive reports furnished by the
National Environmental Appellate Authority, New Delhi (NEAA), Dr. Bhowmick of
Bombay and the NGRI.
Report of National Environmental Appellate Authority, New Delhi (NEAA):
said authority was presided over by a retired Judge of the Supreme Court of
India, Sri Justice N.Venkatachala.
NEAA framed two points (a) and (b):
Is the respondent-industry a hazardous industry or? (ii) What is the pollution
potentiality of the respondent industry, taking into account, the nature of the
products, its effluents and its location? (iii) Whether the operation of the
industry is likely to affect the sensitive catchment area resulting in
pollution of the Himayat Sagar and Osman Sagar lakes supplying drinking water
to the twin cities of Hyderabad and Secunderabad? On point (a)(i),
it noticed that the industry is to use, among 12 major items, - 70 Kgs. of
nickel based catalyst ( Pellets) per day and that the raw material is to be
stored atleast for 30 days. It observed that according to Chapter 8.0 of NFPA,
Hazard classification, the raw materials used by the industry are serious
health hazards, highly inflammable and re-active at elevated temperatures and
pressures. Four items, Nickel, Ammonia, Methanol and Hydrochloric Acid are used
in the process. After referring to the various plants and processes, the NEAA
referred to the provisions of the Factories Act ( as amended in 1987) and
Section 2 (cb) defining 'hazardous processes and Schedule I thereof in which
item 25 refers to 'extraction of oils and fats from vegetable and animal
sources" as hazardous processes. It referred to Rule 2(h) of the
'Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989' issued
under the Environment (Protection) Act, 1986.
referred to the provisions in the Environment (Protection) Act, Section 2(e),
2(f) and 2(d). It agreed that merely because an industry is hazardous does not
by itself debar it but then Section 8 of that act would come into play. It
answered question (i) in the affirmative that the industry is hazardous.
point a(ii), it referred to the definition of 'pollution' in section 2(c) of
the Water Act, section 2(f) which defines 'sewage effluent' and section 2(k)
which defines 'trade effluent' and observed that the 'pollution potential' of
the industry was to be assessed. After referring to the effluents - Commercial
Castor oil, Bleaching earth, Activated carbon, Nickel catalyst, Hyflo supercel,
Sulphuric Acid, Caustic Soda, Methanol, Calcium Oxide, Alum - in all 1463 MTs
per month and noticed that the monthly requirement of 3 Hydrogen was 76 500 NM.
As the industry is coal based, large quantity coal is required. It would
produce huge quantities of BSS, HCO, HSA, Methyl, Fatty acids, Epoxidise, Glyceren
etc. Hydroxy Stearic Acid, methyl Hydroxy Stearic Acid and methanol are serious
health hazardous. Items in part II list of Schedule I to the 'Manufacture,
Storage and Import of Hazardous Chemicals Rules, 1989' are the raw materials
and RW2 ( Dr. G.S.
in his evidence agreed that these are hazardous ( toxic) chemicals. The solid
effluents generated every day are (i) spent bleaching earth 1250 Kgs, (ii)
spent bleaching carbon 250 kgs, (iii) spent nickel catalyst 45 kgs. and (iv)
sodium sulphate 3820 Kgs. (12-HSA) and 170 kgs. ( from CME). Monthly turn out
of effluents will be 400 MT. Every day 55 kgs. of nickel is consumed.
day, 27,830 litres of water are to be used and normally the effluent will carry
all these hazardous substances, including nickel. 'As it is said that the water
used could be re-used for cultivation of lands in the premises of the industry,
the toxic chemicals which get lodged in the surface layers of the soil will
flow down in storm run offs or percolate into the ground water, to ultimately
reach the water body of the two reservoirs.
NEAA further stated that Dr.Santappa in his evidence as RW-1 made admissions
regarding gaseous effluents - - fly ash, SO CO Oxides of Nitrogen, Oxides of Sulphur
and suspended particulate matter.
solid and liquid effluents could reach the lakes through seepage. The factory
cannot be located in the catchment area because run-offs due to rain will carry
hazardous material along surface and through seepage. The NEAA adverted to the
'Drainage Basic Analysis' by the Central Ground Water Board, to the effect that
the Basin "has moderate run-off and moderately high permeability of the
terrain. As such the amount of infiltration is considerably high". The
said Report shows that rainfall in 796 mm ( heaviest being 1326 mm) and there is
every likelihood of the solids being "transported down along the
gradient". The said Report of Central Ground Water Board, referred to
"dolerite dykes" in the vicinity and the possibility of flow even
more. Having regard to the location of the dyke and the speed and angle, the
polluted water could reach Himayat Sagar which is hardly 2 m bgl. since the dam
height is 1763.50 feet.
maps of NSRA were also examined and relied for this purpose. Among the
substances stored are nickel, sulphuric acid, HCA, which are well-known
NEAA pointed out that the 'Engineering Package' provided by the IICT to the
industry ( Ex.p.29) as found in the agreement with the IICT, "does not
refer at all to the nature of pollutants to be generated in this industry or to
the methods adopted to control them, as asserted by RW2". The NEAA pointed
out that in fact clause 17(5) of Annexure IV to the agreement stated that 'the
scope of supply (engineering package) does not include design of effluent treatment
system'. On this ground the article in IICT Bulletin ( Ex.R 1) was rejected by
NEAA also referred to the Report of the three man Technical Committee of the
Andhra Pradesh Pollution Control Board consisting of Dr. J.M. Dave ( PW 3) and that
"accidents and human failure are the most probable causes for spillage and
it is unrealistic to give a 'zero spillage', and specially to their report on
'nickel' and held that the respondent industry has high pollution potentiality
under issue a(ii).
then took up issue (b) as to the likelihood of the industry affecting the
sensitive catchment area. It referred to the Expert Committee Report of the
HMWSSB and its recommendations which led to the issuance of the GO 192 dated
31.3.94 and GO 111 date d8/.3.96. The NEAA concluded that the
"establishment of any chemical industry, carries with it, the imminent
dangers of the chemicals or chemical effluents polluting the water of Himayat Sagar
and Osman Sagar.
the exhaustive Report of the NEAA has gone against the 7th respondent industry.
of Bombay University Department of Chemical Technology headed by Dr. Bhowmick:
Department of Chemical Technology, Bombay University, in its Report dated
16.8.2000 have gone into the other aspects as to what should be the safeguards
to be taken by the industry if the appellant-Board's letter dated 16.7.97 is to
be applied. Dr. Bhowmick suggested that 'No nickel catalyst whether present in
any solid waste or in any solution be allowed to spill on floor/ground. The
process should not emit gaseous harmful vapours. Adequate and ready safety
measures must be made available for accidental leakage/spillage situations.
They then gave six suggestions - storage tanks to be surrounded by bunds; that
it is not advisable to use hydrochloric acid but sulphuric acid may be used.
Again, accidental leakage of ammonia will be catastrophic. Alternately,
hydrogen gas may be brought in cylinders. He expressed doubts about plate and
frame filter press or of leaf filters. Quantity of methanol stored should not
exceed more than a week's requirement. The floor washing water should pass
through oil traps and then properly treated in an effluent treatment plant. If
salt and ionic impurities are not removed, it may produce ground water
of National Geophysical Research Institute, Hyderabad Finally, the NGRI, Hyderabad has given a very
and exhaustive report about "IMPACT OF DYKE".
conducted (i) field investigations, (ii) Hydrogeological studies, (iii)
Geophysical investigation, (iv) Electric Resistivity investigation (v) Magnetic
survey and (vi) Tracer studies. The Report is a voluminous one.
final conclusion after an exhaustive analysis of various types of data
"from results of multi- parameter investigations carried out in the area,
is that hydraulic connectivity exists across the dolerite dyke located between Chouderguda
and Sirsilmuktha facilitating the ground water movement.....In the post monsoon
scenario, the groundwater tabel will go up and thereby may result in more
groundwater flow across the dyke.
conclusion on the basis of these Reports:
light of the above exhaustive scientific Reports of the National Environmental
Appellate Authority, New
Delhi the Department
of Chemical Technology, Bombay University and the National Geophysical Research Institute, Hyderabad - it cannot be said that the two
lakes will not be endangered. The package of the IICT - which did not deal with
the elimination of effluent effects, the opinion of Dr.Santappa,
the view of Director of Industries, and the view of the Government of Andhra
Pradesh must be held to be base on insufficient data and not scientifically
no doubt stated by the 7th respondent that it is prepared to adopt the safety
measures suggested by the appellant Board on 1.7.97 and also those suggested by
Dr. Bhowmick, by trying to see that during storage of raw materials and after
release of the hazardous liquids, they are put in containers and removed.
respect of these drinking water -reservoirs which cater to the needs of about
70 or 80 lakhs population, we cannot rely upon a bare assurance that care will
be taken in the storage of serious hazardous materials. Nor can we rely on an
assurance that these hazardous substances would be effectively removed without
spillage. It is, in our view, not humanly possible for any department to keep
track whether the pollutants are not spilled over. This is exactly where the
'precautionary principle' comes into play. The chance of an accident, within
such close proximity of the reservoirs cannot be ruled out, as pointed out in
the Reports. Thus, we are led to the inference that there is a very great risk
that these highly hazardous material could seep into the earth and reach the
tanks, after passing through the dolerite dykes, as pointed by the National
Geophysical Research Institute. Our inference from facts and the reports is
that of a reasonable person, as pointed out in the main judgment On the basis
of the scientific material now obtained by this Court from three highly reputed
sources, this is certainly not a fit case for directing grant of NOC by the
Pollution Control Board. It is not also possible to hold that the safeguards
suggested by the appellant Board - pursuant to the direction of the Government
dated 3.7.97, will be adequate, in the light of the Reports. We therefore hold
that in the facts of this case, the Board could not be directed to suggest
safeguards and there is every likelihood that safeguards could fail either due
to accident, as stated in the report, or due to human error. We, therefore,
hold on point 3 against the 7th respondent-industry.
point deals with the principle of promissory estoppel applied by the appellate
authority, on the ground that once building permission and permission for
change of land use were granted, the appellant Board could not refuse NOC. The
learned Additional Solicitor General, Sri R.N. Trivedi referred to the
amendment to Section 25(1) in this connection.
Section 25 (1) of the Water (Prevention and Control of Pollution) Act, 1974 as
it original stood, sub-section (1) thereof read as follows:
25(1): Subject to the provisions of this section, no person shall, without the
previous consent of the State Board, bring into use any new or altered outlet
for the discharge of sewage or trade effluent into a stream or well or begin to
make any new discharge of sewage or trade effluent into a stream or well".
Central Act 53/1988, the sub-section was amended and reads as follows:
25(1): Subject to the provisions of this section, no person shall, without the
previous consent of the State Board - (a) establish or take any steps to
establish any industry, operation or process, or any treatment and disposal
system or any extension or addition thereto, which is likely to discharge
sewage or trade effluent into a stream or well or sewer or on land ( such
discharge being hereafter in this section referred to as discharge of sewage)
or (b) bring into use any new or altered outlet for the discharge of sewage, or
(c) bring to make any new discharge or sewage....." After the amendment,
the prohibition now extends even to 'establishment' of the industry of taking
of steps for that process and therefore before consent of the Pollution Board
is obtained, neither can the industry be established nor any steps can be taken
to establish it.
learned Additional Solicitor General of India, Sri Trivedi is right in
contending that the 7th respondent industry ought not to have taken steps to
obtain approval of plans by the Gram Panchayat, nor for conversion of land use
by the Collector, nor should it have proceeded with civil work in a
installation of machinery. The action of the industry being contrary to the
provisions of the Act, no equities can be claimed.
learned Appellate Authority erred in thinking that because of the approval of
plan by the Panchayat, or conversion of land use by the Collector or grant of
letter of intent by the Central Government, a case for applying principle of
"promissory estoppel" applied to the facts of this case. There could
be no estoppel against the statute. The industry could not therefore seek an
NOC after violating the policy decision of the Government. Point 4 is decided
against the 7th respondent accordingly.
this Court's earlier judgment dated 27.1.99, this Court referred to the need
for constituting environmental Courts, tribunals, or appellate bodies
comprising of environmental scientists/experts as members. We had then referred
to the need to constitute Environmental Courts as done in New South Wales in
Australia. In this Court's earlier judgment, responses of various States and
Universities were called for in this behalf. Some States & Union
Territories have responded but several have not responded.
in this connection refer to the recent report entitled 'Environmental Court
Project' published on 18.2.2000 by a Research team at the Department of Land
Economy, University of Cambridge, UK, headed by Prof. Malcoum Grant. (See Journal
of Planning and Environment, May, 2000 p.453 titled 'The use for Environmental
Courts'). The aim of the team was to explore the concept of an Environmental
Court in the light of the experience in other jurisdictions and in Australia
and New Zealand in particular. The concepts referred to in the Report are (a) a
specialist and exclusive jurisdiction;
power to determine merits appeals;
and horizontal integration, by this is meant a wide environmental jurisdiction
which integrates both subject matter and different types of legal proceedings;
marks of a Court or tribunal;
dispute resolution powers, it is pointed out that this Court extend to disputes
over the formu- lation of policy as well as more traditional adjudication;
the members would be specialist in environmental matters;
there would be broad rights of access to the Court;
of procedures - such as the use of alternative dispute resolution procedures;
- this is linked to the need for access and involves means of overcoming the
problem of high costs crihibifing access; or (j) capacity for innovation.
Report puts forward a proposal for a two-tier Environmental Court. The Court
would have jurisdiction and powers including judicial review and civil
procedure powers while dealing with environmental matters.
as most of the statutes dealing with Environment are by Parliament, we would
think that the Law Commission could kindly consider the question of review of the
environmental laws and the need for constitution of Environmental Courts with
experts in environmental law, in addition to judicial members, in the light of
experience in other countries. Point 5 is decided accordingly.
counsel for the seventh respondent referred to the existence of several other
industries within the 10 k.m. radius of the two reservoirs, which have been
granted permission earlier. According to him, these industries are also
polluting industries. In our view, the Environmental (Protection) Act, 1986 and
the Water Act, 1974 and the Air Act, 1981 have enough provision applicable not
only to new industries proposed to be established but also to existing
State of Andhra Pradesh is therefore directed hereby to identify these
industries located within 10 K.M. radius of these two lakes and to take action
in consultation with the A.P.Pollution Control Board to prevent pollution to
the drinking water in these two reservoirs. The State and the Board shall not
permit any polluting industries within the 10 k.m radius. A report shall be
submitted to this Court by the State of Andhra Pradesh in this behalf within
four months from today, in regard to the pollution or pollution potential of
industries, if any, existing within 10 K.M. of the lakes. After the Report is
received, the matter may be listed. Point 6 is decided accordingly.
result, the appeal is allowed, the judgment of the High Court and the order of
the appellate authority under section 28 of the Water Act, 1974 are set aside
and the order of the appellant Board refusing permission to the seventh
respondent under section 25 of the Water Act is restored.
parting with the case, we acknowledge the excellent Reports submitted to this
Court by the three expert bodies on the basis of scientific/technological
research of a very high order. The amount of hard work done by these three
bodies is commendable. But for these expert reports it would have been very
difficult for this Court to resolve the complicated scientific issues involved
in this case, with confidence. It will be open to the three expert bodies (1)
National Environmental Appellate Authority, New Delhi (2) The University
Department of Chemical Technology (Autonomous), Matunga, Bombay headed by Dr. Bhowmick
and (3) The National Geophysical Research Institute, Tarnaka, Hyderabad, to
submit their list of expenses or fee, if any, to the State of Andhra Pradesh,
through the appellant Board. If any claims for monies are made, the same shall
be paid by the State of Andhra Pradesh.
are allowed as stated above. No costs.
the matter after 4 months, after the Report of the State of Andhra Pradesh as
directed above, is received.