A. P. Pollution Control Board vs M. V. Nayudu (Retd. )

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(SC) 83

SUPREME COURT OF INDIA
S.B. Majmudar and M. Jagannadha Rao, JJ.
C.A. Nos. 368-371 of 1999 (Arising out of SLP (C) Nos. 10317-10320 of 1998) (With C.A. Nos. 372,373 of 1999) (Arising out of SLP (C) Nos. 10330 & 13380 of 1998)
Decided On: 27.01.1999
A.P. Pollution Control Board Appellants
versus
Prof. M.V. Nayadu (Retd.) & Others Respondent

Headnote:
WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 - SECTION 28 - HAZARDOUS WASTES (MANAGEMENT AND HANDLING) RULES, 1989 - RULE 12 - ENVIRONMENT (PROTECTION) ACT, 1986 - SECTION 3(3) - NATIONAL ENVIRONMENT APPELLATE AUTHORITY ACT, 1997 - ENVIRONMENTAL COURTS/TRIBUNALS - PROBLEMS OF COMPLEX TECHNOLOGY - PRECAUTIONARY PRINCIPLE AND THE NEW BURDEN OF PROOF - THE VELOOR CASE - BRIEF SURVEY OF JUDICIAL AND TECHNICAL INPUTS IN ENVIRONMENTAL APPELLATE AUTHORITIES/TRIBUNALS - PRINCIPLE OF GOOD GOVERNANCE - NEED FOR MODIFICATION OF OUR STATUTES, RULES AND NOTIFICATION BY INCLUDING ADEQUATE JUDICIAL & SCIENTIFIC INPUTS - THE DUTY OF THE PRESENT GENERATION TOWARDS POSTERITY - PRINCIPLE OF INTER-GENERATIONAL EQUITY RIGHTS OF THE FUTURE AGAINST THE PRESENT - WHETHER THE SUPREME COURT WHILE DEALING WITH ENVIRONMENTAL MATTERS UNDER ARTICLE 32 OR ARTICLE 136 OR HIGH COURTS UNDER ARTICLE 226 CAN MAKE REFERENCE TO THE NATIONAL ENVIRONMENTAL APPELLATE AUTHORITY UNDER THE 1997 ACT FOR INVESTIGATION AND OPINION.
Fact of the Case:

The case involves various issues concerning the validity of the orders passed by A.P. Pollution Control Board dated 30.7.97, the correctness of the order dated 5.1.98 of the Appellate Authority under Section 28 of the Water Act, the validity of GOMs No. 153 dated 3.7.97 by which Government of A.P. granted exemption for the operation of the 10 k.m. rule in GOMs III dated 8.3.1996. Questions also arise regarding the alleged breach of the provisions of the Act, Rules or notification issued by the Central Government and the standards prescribed under the Water Act or rules or notifications. Question also arises whether the "appellate" authority could have said that as it was a highly technical matter no interference was called for.
Finding of the Court:

The Court held that the precautionary principle and the new concept of burden of proof in environmental matters have now become part of our law. The Court also held that the principle of good governance requires that there should be adequate judicial and scientific inputs in environmental courts, tribunals and appellate authorities. The Court further held that the Supreme Court and the High Courts can refer scientific and technical aspects for investigation and opinion to expert bodies such as the Appellate Authority under the National Environmental Appellate Authority Act, 1997.
Issues: 1. Whether the respondent industry is a hazardous one and what is its pollution potentiality, taking into account, the nature of the product, the effluents and its location? 2. Whether the operation of the industry is likely to affect the sensitive catchments area resulting in pollution of the Himayat Sagar and Osman Sagar lakes supplying drinking water to the twin cities of Hyderabad and Secunderabad?
Ratio Decidendi: 1. The precautionary principle and the new concept of burden of proof in environmental matters have now become part of our law. 2. The principle of good governance requires that there should be adequate judicial and scientific inputs in environmental courts, tribunals and appellate authorities. 3. The Supreme Court and the High Courts can refer scientific and technical aspects for investigation and opinion to expert bodies such as the Appellate Authority under the National Environmental Appellate Authority Act, 1997.
Final Decision: The Court referred the issues to the Appellate Authority under the National Environmental Appellate Authority Act, 1997 for its opinion and requested the Authority to give its opinion, as far as possible, within a period of three months from the date of receipt of the order.

Judgement Key Points

The court's ratio decidendi is that the precautionary principle and the new burden of proof in environmental matters are now part of law, requiring adequate judicial and scientific inputs in environmental adjudications, and that courts and authorities can refer complex scientific issues to specialized expert bodies for investigation and opinion.

JUDGMENT

M. Jagannadha Rao, J.

1. Leave granted in all the special leave petitions. It is said:

"The basic insight of ecology is that all living things exist in interrelated systems; nothing exists in isolation. The world system in weblike; to pluck one strand is to cause all to vibrate; whatever happens to one part has ramifications for all the rest. Our actions are not individual but social; they reverberate throughout the whole ecosystem". [Science Action Coalition by A. Fritsch. Environmental Ethics: Choices for Concerned Citizens 3-4 (1980)]. (1988) Vol. 12 Harv. Env. L. Rev. at 313)."

2. Four of these appeals which arise out of SLP (C) No. 10317-10320 of 1998 were filed against the judgment of the Andhra Pradesh High Court dated 1.5.1998 in four writ petitions. namely. W.P. No. 17832 of 1997 and three other connected writ petitions. All the appeals were filed by the A.P. Pollution Control Board. Three of the above writ petitions were filed as public interest cases by certain persons and the fourth writ petition was filed by the Gram Panchayat, Peddaspur.

3. The fifth Civil Appeal which arises out of SLP(C) No. 13380 of 1998 was filed against the judgment in W.P. No. 16969 of 1997 by the Society for Preservation of Environment & Quality of Life. (for short SPEQL) represented by Sri P. Janardan Reddi. the petitioner in the said writ petition. The High Court dismissed all these writ petitions.

4. The sixth Civil appeal which arises out of SLP (C) No. 10330 of 1998 was filed by A.P. Pollution Control Board against the order dated 1.5.1998 in Writ Petition No. 11803 of 1998. The said writ petition was filed by M/s Surana Oils and Derivatives (India) Ltd. (hereinafter called the respondent company. for implementation of the directions given by the appellate authority under the Water (Prevention of Pollution) Act. 1974 (hereinafter called the Water Act. 1974) in favour of the company.

5. In other words the A.P. Pollution Board is the appellant in five appeals and the SPEQL is appellant in one of the appeals.

6. According to the Pollution Control Board under the notification No. J.20011/15/88-iA. Ministry of Environment & Forests. Government of India dated 27.9.1988. vegetable oils

including solved extracted oils (Item No. 37) was listed in the RED hazardous category. The Pollution Board contends that Notification No. J. 120012/38/86 I A, Ministry of Environment & Forests of Government of India dated 1.2. I 989, prohibits the location of the industry of the type proposed to be established by the respondent company, which will fall under categorisation at No. 11 same category of industry in Doon Valley.

7. On 31.3. I 994, based on an Interim Report of the Expert Committee constituted by the Hyderabad Metropolitan Water Supply and Sewerage Board, the Municipal Administration and Urban Development, Government of Andhra Pradesh issued GOMs 192 dated 31.3.1994 prohibited various types of development within 10 k.m. radius of the two lakes, Himayat Sagar & Osman Sagar, in order to monitor the quality of water in these reservoirs which supply water to the twin cities of Hyderabad and Secunderabad.

8. In January 1995, the respondent company was incorporated as a public limited company with the object of setting up an industry for production of B.S.S. Castor oil derivatives such as Hydrogenated Castor Oil, 12-Hydroxy Satiric Acid, Dehydrated Castor Oil, Ethylated 12-HSA, D.Co., Fatty Acids with by products - like Glycerin, Spent Bleaching Earth and Carbon and Spent Nickel Catalyst. Thereafter the industry applied to the Ministry of Industries, Government of India for letter of intent under the Industries (Development Regulation) Act, 1951.

9. The respondents Company purchased 12 acres of land on 26.9.1995 in Peddaspur village, Shamshabad Mandal. The Company also applied for consent for establishment of the industry through the single window clearance committee of the Commissioner ate of Industries, Government of Andhra Pradesh, in Novembe

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1999 Supreme(SC) 83

Cases Referred (3)