Important point
The liability of the importers to pay the amounts to be spent for destroying the hazardous goods cannot be doubted on applicability of precautionary principle and polluter pays principle.

Headnote:Environment (Protection) Act, 1986—Hazardous Wastes (Management and Handling) Rules, 1989—Rule 15(2)—Dumping of hazardous waste—Presence of hazardous waste in 133 containers lying at Nhava Sheva Port as noticed by a High Powered Committee—On the directions of this Court, the oil contained in these containers was sent for laboratory test—It has been found to be hazardous waste—Appropriate directions for dealing with the consignments in question, having regard to the precautionary principle and polluter pays principle—Whether directions can be issued for destruction of consignments with a view to protect the environment—(Yes).
       Held : According to the Monitoring Committee, the cost of incineration will be at the rate of Rs. 12/- per kilo which also include the cost of transport to be paid by the importers in advance. The liability of the importers to pay the amounts to be spent for destroying the goods in question cannot be doubted on applicability of precautionary principle and polluter pays principle. These principles are part of the environmental law of India. There is constitutional mandate to protect and improve the environment. In order to fulfill the constitutional mandate various legislations have been enacted with attempt to solve the problem of environmental degradation. (Paras 23 and 24)
       In respect of the precautionary principle, Rio Declaration (Principle No.15) provides that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as reason for postponing cost effective measures to prevent environmental degradation. This principle generally describes an approach to the protection of the environment or human health based around precaution even where there is no clear evidence of harm or risk of harm from an activity or substance. It is a part of principle of sustainable development, it provides for taking protection against specific environmental hazards by avoiding or reducing environmental risks before specific harms are experienced. Having regard to the aforesaid principle, the import of waste oil containing PCBs of detectable limit has been banned in India. The fact that PCBs content in the consignments was only marginal or minimal and under Basel Convention its permissible limit is 50 PPM, is of no consequence. Judging by Indian conditions, our law has provided the limit of PCBs which if of detectable limits, the import is not allowed. The national law has to apply and shelter cannot be taken under guidelines of Basel Convention. The polluter pays principle basically means that the producer of goods or other items should be responsible for the cost of preventing or dealing with any pollution that the process causes. This includes environmental cost as well as direct cost to the people or property, it also covers cost incurred in avoiding pollution and not just those related to remedying any damage. It will include full environmental cost and not just those which are immediately tangible. The principle also does not mean that the polluter can pollute and pay for it. The nature and extent of cost and the circumstances in which the principle will apply may differ from case to case. (Paras 25 to 27)
       In a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to be carried on as part of the developmental programme, Court should not feel inhibited by this rule merely because the new law does not recognize the rule of strict and absolute liability in case of an enterprise engaged in hazardous and dangerous activity. Law has to grow in order to satisfy the needs of the fast-changing society and keep abreast with the economic developments taking place in the country. Law cannot afford to remain static. The Court cannot allow judicial thinking to be constricted by reference to the law as it prevails in England or in any other foreign country. Though the Court should be prepared to receive light from whatever source it comes but it has to build up its own jurisprudence. It has to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialized economy. If it is found that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dangerous industries which are concomitant to an industrial economy, the Court should not hesitate to evolve such principle of liability because it has not been so done in England. An enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results to anyone on account of an accident in the operation of such activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident as a part of the social cost for carrying on such activity, regardless of whether it is carried on carefully or not. Such liability is not subject to any of the exceptions which operate vis-a-vis the tortuous principle of strict liability under the rule in Rylands v. Fletcher. If the enterprise is permitted to carry on a hazardous or inherently dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such activity as an appropriate items of its overheads. The enterprise alone has the resource to discover and guard against hazards or dangers and to provide warning against potential hazards. (Para 30)
       The aforenoted precautionary principles are fully applicable to the facts and circumstances of the case and we have no manner of doubt that the only appropriate course to protect environments is to direct the destruction of the consignments by incineration in terms discussed above and as recommended by the Monitoring Committee. It seems that by disposal of the oil under the supervision of Monitoring Committee at the incinerators which have adequate facilities to destroy the oil at a required temperature, there would be no impact on environments. (Paras 34 & 35)
       The aforesaid 133 containers are directed to be expeditiously destroyed by incineration as per the recommendations of the Monitoring Committee and under its supervision subject to and in terms of this order. The cost of incineration shall be deposited by the importers with the Monitoring Committee within four weeks. The Monitoring Committee will ensure the timely destruction of the oil at the incinerators mentioned in its report. After the destruction of the oil in question, a compliance report shall be filed by the Monitoring Committee. All concerned are directed to render full assistance and cooperation to the Monitoring Committee. In regard to the consignment of Eleven Star Esscon, in case option for recycling is exercised by the Government, the recycling would be done under the supervision of the Monitoring Committee. If the request for recycling is not received by the Monitoring Committee within four weeks, the said consignment would also be destroyed in the same manner as the other consignments. (Para 37)

Judgment

Y.K. Sabharwal, J.—Considering the alarming situation created by dumping of hazardous waste, its generation and serious and irreversible damage as a result thereof to the environment, flora and fauna, and also having regard to the magnitude of the problem as a result of failure of the authorities to appreciate the gravity of situation and the need for prompt measures being taken to prevent serious and adverse consequences, a High Powered Committee (HPC) was constituted by this Court with Prof. M.G.K. Menon as its Chairman, in terms of order dated 30th October, 1997. The Committee compromised of experts from different disciplines and fields and was required to examine all matters in depth relating to hazardous waste.

2. On consideration of the detailed reports submitted by the HPC various directions have been issued by this Court from time to time. Presently, we are concerned with the presence of hazardous waste oil in 133 containers lying at Nhava Sheva Port as noticed by HPC. On the directions of this Court, the oil contained in the said 133 containers was sent for laboratory test to determine whether same is hazardous waste oil or not. It has been found to be hazardous waste.

3. On consideration of report of HPC, the result of laboratory test and entire material on record, this Court came to the prima facie conclusion that importers illegally imported waste oil in 133 containers in the garb of lubricating oil. In terms of the order dated 25th September, 2003, notices were directed to be issued to 15 importers who imported the said consignment as also to the Commissioner of Customs. The importers were directed to show cause why the consignment shall not be ordered to be re-exported or destroyed at their cost. Since, the Ministry of Environment and Forests had spent a sum of Rs. 6.35 lakhs on the laboratory tests, the importers were also required to show cause why the said amount be not recovered from them and why all of them shall not be directed to make payment of compensation on polluter pays principle and other action taken against them.

4. The affidavits showing cause were filed by the importers. During the course of hearing, one of the contentions urged on behalf of the importers was that in respect of consignments in question, adjudicating proceedings were pending before Commissioner of Customs, Mumbai and this Court may, therefore, defer the decision on the aspect of re-export or destruction of the goods. In the order dated 11th March, 2004, it was observed that for the purpose of present proceedings, it is strictly not necessary to await the final decision of adjudication proceedings but a report from the Commissioner of Customs may assist the court in deciding the aspects indicated in the order dated 25th September, 2003. In this view, the Commissioner of Customs was directed to sent a report to this Court on the question whether the consignment in issue is waste oil within the meaning of the term ‘waste oil’ as per Basel Convention or Hazardous Waste Rules, 1989 as amended in the year 2000 and/or as amended in the year 2003 also having regard to the relevant notifications issued on this aspect. The Commissioner of Customs was directed to give reasonable opportunity to the importers to put forth their viewpoint before him while examining the matter and was further directed to associate the Monitoring Committee that was constituted in terms of orders dated 14th October, 2003 reported in 2003(9) SCALE 303. The question whether any further testing is required to be done as claimed by the importers was left to be decided by the Commissioner in consultation with the Monitoring Committee.

5. Detailed reports have been filed by Commissioner of Customs (Imports), Mumbai and the Monitoring Committee. We have perused the relevant material including those reports and have heard learned counsel for the petitioner, learned Additional Solicitor General appearing for the Ministry of Environment and Forests as also learned couns

Click Here to Read the rest of this document

1998 Supreme(SC) 176

Important pointThe liability of the importers to pay the amounts to be spent for destroying the hazardous goods cannot be doubted on applicability of precautionary principle and polluter pays principle.

Cases Referred (4)

Login now and unlock premium legal research

Important point
The liability of the importers to pay the amounts to be spent for destroying the hazardous goods cannot be doubted on applicability of precautionary principle and polluter pays principle.