TMI Blog2000 (12) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Drinking 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: All 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inable development while taking into account the environment. (3 C.M.L.R.331)(1997) (ibid Columbia Journal of Environmental Law, p. 283) In Lopez Ostra Vs. Spain ( 303-C, 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 Vs. U.K. ( 172 Eur. Ct H.R.(Ser.A, p.5)(1990). The Inter- American Commission on Human Rights has found a similar linkage (Yanomani Indians Vs. Brazil) ( Inter- 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 Opasa Vs. Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Board because of the direction of the Government of Andhra contained in an order granting exemption from the 10 KM rule. Before 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'). Thereafter, 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. At 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. Consequent 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. Undeterred, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Government then directed the Board to prescribe conditions for treatment/disposal of aqueous/solid waste. Compelled 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. prohibition. Meanwhile, the Society for Preservation of Environment and Quality Life ( SPEQL) filed W.P. 16969/97 for quashing the exemption order in GO 153 dated 3.7.97 and obtained stay on 25.7.97. The 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 alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter (Prevention and Control of pollution) Act, 1974 and directed NOC to be issued by the appellant. Writ 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. The 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. Explanation to Section 5 clarifies that the said power to issue directions includes the power to direct: (a) 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 F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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. In our 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: 3(i): To prohibit pollut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny industries within 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. The 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 drinki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), 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. It 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Satellite maps of NSRA were also examined and relied for this purpose. Among the substances stored are nickel, sulphuric acid, HCA, which are well-known 'hazardous' substances. The 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 agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rities are not removed, it may produce ground water contamination. (C)Report of National Geophysical Research Institute, Hyderabad Finally, the NGRI, Hyderabad has given a very detailed and exhaustive report about IMPACT OF DYKE . They 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. The 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. Our conclusion on the basis of these Reports: In the 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 tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Under Section 25 (1) of the Water (Prevention and Control of Pollution) Act, 1974 as it original stood, sub-section (1) thereof read as follows: Section 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 . By Central Act 53/1988, the sub-section was amended and reads as follows: Section 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 sewa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; (b) a power to determine merits appeals; (c) vertical and horizontal integration, by this is meant a wide environmental jurisdiction which integrates both subject matter and different types of legal proceedings; (d) hall marks of a Court or tribunal; (e) 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; (f) expertise, the members would be specialist in environmental matters; (g) access, there would be broad rights of access to the Court; (h) informality of procedures - such as the use of alternative dispute resolution procedures; (i) costs - 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. The Report puts forward a proposal for a two-tier Environmental Court. The Court would have jurisdiction and powers including jud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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