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TMI Blog1999 (1) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... etitions. 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. 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. 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. In other words, the A.P. Pollution Board is the appellant in five appeals and the SPEQL is appellant in one of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia issued letter of intent for manufacture of B.S.S. grade Castor Oil (15,000 tons per annum) and Glycerine (600 tons per annum). The issuance of licence was subject to various conditions, inter-alia, as follows: "(a) you shall obtain a confirmation from the State Director of Industries that the site of the project has been approved from the environmental angle by the competent State authority. (b) you shall obtain a certificate from the concerned State Pollution Control Board to the effect that the measures envisaged for pollution control and the equipment proposed to be installed meet their requirements." Therefore, the respondent company had to obtain NOC from the A.P. Pollution Control Board. According to the A.P. Pollution Control Board (the appellant), the respondent company could not have commenced civil works and construction of its factory, without obtaining the clearance of the A.P.Pollution Control Board - as the relaxation by government from location restriction as stated in their letter dated 28.11.1995, was subject to such clearance. On 8.3.1996, on receipt of the 2nd Interim Report of the Expert Committee of the Hyderabad Metropolitan Water Supply an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.111 dated 8.3.1996. (2) The proposal to set up this unit was rejected at the pre-scrutiny level during the meeting of CDCC/DIPC held on 24.5.1996 in view of the State Government Order No.111 dated 8.3.1996." Aggrieved by the above letter of rejection, the respondent company appealed under section 28 of the Water Act. Before the appellate authority, the industry, filed an affidavit of Prof. M.Santappa Scientific Officer to the Tamil Nadu Pollution Control Board in support of its contentions. The appellate authority under section 28 of the Water Act, 1974 (Justice M.Ranga Reddy, (retd.)) by order dated 5.1.1998 allowed the appeal of the Company. Before the appellate authority, as already stated, an affidavit was filed by Prof. M.Shantappa, a retired scientist and technologist (at that time, Scientific Advisor for T.N. Pollution Control Board) stating that the respondent had adopted the latest eco-friendly technology using all the safeguards regarding pollution. The appellate authority stated that Dr.Siddhu, formerly Scientific to the Government of India and who acted as Director General, Council of Scientific and Industrial Research (CSIR) and who was the Chairman of the Boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 5.1.1998. As stated earlier, the A.P. Pollution Control Board contends that the categorisation of industries into red, green and orange had already been made prior to the notification of 1.2.1989 by Office Memorandum of the Ministry of Environment & Forests, Government of India dated 27.9.1988 and that in that notification also "Vegetable oils including solvent extracted oils" (Item No.7) and `Vanaspati Hydrogenated Vegetable oils for industrial purposes (Item 37)" were also included in the red category. It also contends that the company could not have started civil works unless NOC was given by the Board. The Division Bench of the High Court in its judgment dated 1.5.1998, held that the writ petitioners who filed the public interest cases could not be said to be having no locus standi to file the writ petitions. The High Court observed that while the Technical Committee of the A.P. Pollution Control Board had, some time before its refusal, suggested certain safeguards to be followed by the company, the Board could not have suddenly refused the consent and that this showed double standards. The High Court referred to the order of the Appellate authority under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. We are just now not going into all these aspects but are confining ourselves to the issues on the technological side. In matters regarding industrial pollution and in particular, in relation to the alleged breach of the provisions of the Water (Prevention and Control of Pollution) Act, 1974, its rules or notifications issued thereunder, serious issues involving pollution and related technology have been arising in appeals under Article 136 and in writ petitions under Article 32 of the Constitution of India filed in this Court and also in writ petitions before High Courts under Article 226. The cases involve the correctness of opinions on technological aspects expressed by the Pollution Control Boards or other bodies whose opinions are placed before the Courts. In such a situation, considerable difficulty is experienced by this Court or the High Courts in adjudicating upon the correctness of the technological and scientific opinions presented to the Courts or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oundaries." It might be `preferable that the boundaries are left to be established by Judicial decision as the law developed. After all, the great strength of the English Law has been its pragmatic approach". Further, where urgent decisions are required, there are often no easy options for preserving the status quo pending the resolution of the dispute. If the project is allowed to go ahead, there may be irreperable damage to the environment; if it is stopped, there may be irreperable damage to an important economic interest. (See Environment Enforcement: The need for a specialised court - by Robert Cranworth QC (Jour of Planning & Environment, 1992 p.798 at 806). Robert Cranworth advocates the constitution of a unified tribunal with a simple procedure which looks to the need of customers, which takes the form of a Court or an expert panel, the allocation of a procedure adopted to the needs of each case - which would operate at two levels - first tier by a single Judge or technical person and a review by a panel of experts presided over by a High Court Judge - and not limited to `Wednesbury' grounds. In the USA the position is not different. It is accepted that when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may refine, modify or discard variables or models when more information is available; however, agencies and Courts must make choices based on existing scientific knowledge. In addition, agency decision making evidence is generally presented in a scientific form that cannot be easily tested. Therefore, inadequacies in the record due to uncertainity or insufficient knowledge may not be properly considered. (The Status of the Precautionary Principle in Australia : by Charmian Barton (Vol.22) (1998) (Harv. Envtt. Law Review p.509 at pp510-511). The inadequacies of science result from identification of adverse effects of a hazard and then working backwards to find the causes. Secondly, clinical tests are performed, particularly where toxins are involved, on animals and not on humans, that is to say, are based on animals studies or short-term cell testing. Thirdly conclusions based on epidemiological studies are flawed by the scientist's inability to control or even accurately assess past exposure of the subjects. Moreover, these studies do not permit the scientist to isolate the effects of the substance of concern. The latency period of many carcinogens and other toxins exacerbates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uot;shall implement the `Precautionary Principle' and the `Polluter Pays Principle'." The learned Judges also observed that the new concept which places the Burden of Proof on the Developer or Industralist who is proposing to alter the status quo, has also become part of our environmental law. The Vellore judgment has referred to these principles briefly but, in our view, it is necessary to explain their meaning in more detail, so that Courts and tribunals or environmental authorioties can properly apply the said principles in the matters which come before them. The Precautionary Principle replaces the Assimilative Capacity Principle: A basic shift in the approach to environmental protection occured initially between 1972 and 1982. Earlier the Concept was based on the `assimilative capacity' rule as revealed from Principle 6 of the Stockholm Declaration of the U.N.Conference on Human Environment, 1972. The said principle assumed that science could provide policy-makers- with the information and means necessary to avoid encroaching upon the capacity of the environment to assimilate impacts and it presumed that relevant technical expertise would be available when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold at which scientific evidence might require action by not referring to "serious" or "irreversible" as adjectives qualifying harm. However, summing up the legal status of the precautionary principle, one commentator characterised the principle as still "evolving" for though it is accepted as part of the international customary law, "the consequences of its application in any potential situation will be influenced by the circumstances of each case". (See * First Report of Dr.Sreenivasa Rao Pemmaraju, Special -Rapporteur, International Law Commission dated 3.4.1998 paras 61 to 72). The Special Burden of Proof in Environmental cases: We shall next elaborate the new concept of burden of proof referred to in the Vellore case at p.658 (1996 (5) SCC 647). In that case, Kuldip Singh, J. stated as follows: "The `onus of proof' is on the actor or the developer/industralist to show that his action is environmentally benign." * Joint Secretary and Legal Adviser, Ministry of External Affairs, New Delhi. It is to be noticed that while the inadequacies of science have led to the `precautionary principle', the said `precautionary pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e persons' test. (See Precautionary Principle in Australia by Charmian Barton) (Vol.22) (1998) Harv. Env. L.Rev. 509 at 549). Brief Survey of Judicial and technical inputs in environmental appellate authorities/tribunals: We propose to briefly examine the deficiencies in the Judicial and technical inputs in the appellate system under some of our existing environmental laws. Different statutes in our country relating to environment provide appeals to appellate authorities. But most of them still fall short of a combination of judicial and scientific needs. For example, the qualifications of the persons to be appointed as appellate authorities under section 28 of the Water (Prevention and Control of Polloution) Act, 1974, section 31 of the Air (Prevention and Control of Pollution) Act, 1981, under Rule 12 of the Hazardous Wastes (Management and Handling) Rules, 1989 are not clearly spelled out. While the appellate authority under section 28 in Andhra Pradesh as per the notification of the Andhra Pradesh Government is a retired High Court Judge and there is nobody on his panel to help him in technical matters, the same authority as per the notification in Delhi is the Financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l well versed in environmental laws. Such defects in the constitution of these bodies can certainly undermine the very purpose of those legislations. We have already referred to the extreme complexity of the scientific or technology issues that arise in environmental matters. Nor, as pointed out by Lord Woolf and Robert Cranworth should the appellate bodies be restricted to Wednesbury limitations. The Land and Environment Court of New South Wales in Australia, established in 1980, could be the ideal. It is a superior Court of record and is composed of four Judges and nine technical and conciliation assessors. Its jurisdiction combines appeal, judicial review and enforcement functions. Such a composition in our opinion is necessary and ideal in environmental matters. In fact, such an environmental Court was envisaged by this Court atleast in two judgments. As long back as 1986, Bhagwati,CJ in M.C.Mehta vs. Union of India and Shriram Foods & Fertilizers Case [ 1986 (2) SCC 176 (at page 202)] observed: "We would also suggest to the Government of India that since cases involving issues of environmental pollution, ecological destructions and conflicts over national resources are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onmental Courts, Tribunals and appellate authorities there is always a Judge of the rank of a High Court Judge or a Supreme Court Judge, - sitting or retired - and Scientist or group of Scientists of high ranking and experience so as to help a proper and fair adjudication of disputes relating to .pl68 environment and pollution. There is also an immediate need that in all the States and Union Territories, the appellate authorities under section 28 of the Water (Prevention of Pollution) Act, 1974 and section 31 of the Air (Prevention of Pollution) Act, 1981 or other rules there is always a Judge of the High Court, sitting or retired and a Scientist or group of Scientists of high ranking and experience, to help in the adjudication of disputes relating to environment and pollution. An amendment to existing notifications under these Acts can be made for the present. There is also need for amending the notifications issued under Rule 12 of the Hazardous Wastes (Management & Handling) Rules, 1989. What we have said applies to all other such Rules or notifications issued either by the Central Government or the State Governments. We request the Central and State Governments to take notice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal right to freedom, equality and adequate conditions of life, in an environment of quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations........" Principle 2: "The natural resources of the earth, including the air, water, lands, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate." Several international conventions and treaties have recognised the above principles and in fact several imaginative proposals have been submitted including -the locus standi of individuals or groups to take out actions as representatives of future generations, or appointing Ombudsman to take care of the rights of the future against the present (proposals of Sands & Brown Weiss referred to by Dr.Sreenivasa Rao Pemmaraju, Special Rapporteur, paras 97, 98 of his report). 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 Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise inquired into by the Commission upon a complaint, they would have stood time barred. These objections were rejected by the Commission by an elaborate order on 4.8.1997 holding that once the Supreme Court referred the matters to the Commission, it was acting sui Juris, that its services could be utilised by the Supreme Court treating the Commission as an instrumentality or agency of the Supreme Court, that the period of limitation under the Protection of Human Rights Act, 1993 would not apply, that in spite of the reference to the Commission, the Supreme Court would continue to have seisin of the case and any determination by the Commission, wherever necessary or appropriate, would be subject to the approval of the Supreme Court. Not satisfied with the above order of the Commission, the Union of India filed clarification application Crl.M.P. No.6674 of 1997 etc. This Court then passed the order aforementioned in Paramjit Kaur vs. State of Punjab [1998 (5) SCALE 219 = 1998 (6) J.T. 332 (SC)] on 12.12.1998 accepting the reasons given by the Commission in rejecting the objections. In that context, this Court held that (i) the Commission was an expert body consisting of expert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eference. There was some argument that some of the draft issues could not be referred to the Commission while some others required modification. After hearing arguments, parties on both sides agreed for reference of the following issues to the Appellate Authority under the National Environmental Appellate Authority Act, 1997. We shall now set out these issues. They are: (a) Is the respondent industry a hazardous one and what is its pollution potentiality, taking into account, the nature of the product, the effluents and its location? (b) 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? We may add that it shall be open to the authority to inspect the premises of the factory, call for documents from the parties or any other body or authority or from the Government of Andhra Pradesh or Union Government and to examine witnesses, if need be. The Authority shall also have all powers for obtaining data or technical advice as it may deem necessary from any source. It shall give an opportunity to the parties or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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