1999 (1) TMI 532 - SC - Indian Laws

Summary

Issues Involved:
1. Validity of the orders passed by the A.P. Pollution Control Board dated 30.7.97.
2. Correctness of the order dated 5.1.98 of the Appellate Authority u/s 28 of the Water Act.
3. Validity of GOMs No.153 dated 3.7.97 granting exemption from the 10 km rule in GOMs 111 dated 8.3.1996.
4. Alleged breach of the provisions of the Act, Rules, or notifications issued by the Central Government.
5. Applicability of the "Precautionary Principle" and "Polluter Pays Principle".

Summary:
1. Validity of the orders passed by the A.P. Pollution Control Board dated 30.7.97:
The A.P. Pollution Control Board rejected the respondent company's application for consent, stating that the unit is a polluting industry falling under the red category and that its location within the 10 km radius of Himayat Sagar and Osman Sagar lakes was not permissible as per GOMs No.111 dated 8.3.1996. The Board contended that the company could not have commenced civil works without obtaining clearance from the Board.

2. Correctness of the order dated 5.1.98 of the Appellate Authority u/s 28 of the Water Act:
The appellate authority allowed the appeal of the respondent company, stating that the industry is not a polluting industry based on expert reports and affidavits. It held that the notification dated 1.2.1989 categorizing industries as "red category" did not apply to the catchment areas of Himayat Sagar and Osman Sagar lakes. The appellate authority directed the A.P. Pollution Control Board to grant consent for the establishment of the factory.

3. Validity of GOMs No.153 dated 3.7.97 granting exemption from the 10 km rule in GOMs 111 dated 8.3.1996:
The Government of A.P. granted exemption to the respondent company from the operation of GOMs 111 of 8.3.1996, which prescribed the 10 km rule from the Osman Sagar and Himayat Sagar Lakes. This exemption was challenged in the public interest cases filed in the High Court.

4. Alleged breach of the provisions of the Act, Rules, or notifications issued by the Central Government:
The A.P. Pollution Control Board argued that the respondent company breached the provisions of the Water Act, 1974, and related rules and notifications by commencing construction without obtaining necessary clearances and by proposing to set up a polluting industry in a sensitive catchment area.

5. Applicability of the "Precautionary Principle" and "Polluter Pays Principle":
The Supreme Court discussed the importance of the "Precautionary Principle" and the "Polluter Pays Principle" in environmental law, as established in the Vellore Citizens' Welfare Forum case. The Court emphasized that these principles are now part of the environmental law in India and must be applied in cases involving environmental protection and pollution control.

Order of Reference:
The Supreme Court referred the issues to the Appellate Authority under the National Environmental Appellate Authority Act, 1997, for its opinion on whether the respondent industry is hazardous and its pollution potentiality, and whether its operation is likely to affect the sensitive catchment area. The Authority was requested to give its opinion within three months. The Court also recommended amendments to environmental laws to ensure that appellate authorities and tribunals include judicial and technical members with expertise in environmental matters.