Water is essential for all living things. The United Nations resolution at the 1977 Water Conference said, “All people, regardless of their stage of development and their social and economic status, have the right to access the same amount of drinking water and their basic needs.” The notions of the right to a healthy environment and the right to sustainable development have come to be regarded as basic human rights that are inextricably linked to the right to life.
Water pollution is a major issue in India. According to a 1992 WHO assessment, just 209 of India’s 3,119 towns and cities have partial sewage treatment facilities, and only eight have full wastewater treatment facilities. A 1995 study found that 114 Indian communities discharged untreated sewage and partially cremated bodies directly into the Ganges. In rural India, the lack of toilets and sanitary services leads to open defecation, which is a major source of surface water pollution.
FACTS OF THE CASE
The respondent industry planned to develop a vegetable oil factory at Peddashpur, Andhra Pradesh, which the seventh respondent (M/s. Surana Oils & Derivatives (India) Ltd.) bought. Within a 10-kilometer radius of the area, two large reservoirs provided drinking water to around five million people. The Government of India’s Ministry of Forest and Environment produced a list of hazardous enterprises, which included the vegetable oil business, to exercise its authority under the Water (Prevention and Control of Pollution) Act of 1974 and other Acts. The Central Government notification stated that in order to obtain permission from the relevant Pollution Control Board to establish a factory, a “No Objection Certificate” (henceforth referred to as NOC) guaranteeing that the industry did not damage or pollute the environment was required. The Central Government notification stated that in order to obtain permission from the relevant Pollution Control Board to establish a factory, a “No Objection Certificate” (henceforth referred to as NOC) guaranteeing that the industry did not damage or pollute the environment was required.
The state of Andhra Pradesh issued a notice banning businesses from building enterprises within a 10-kilometre radius of the reservoirs in accordance with legislation enforced by the Union Government. In November 1995, the company requested for an NOC with the Andhra Pradesh Appellate Board. The Indian government received a proposal from Andhra Pradesh to remove the 10-kilometre restriction. As a result, the Indian government ordered the business to submit an application for an NOC to the State Government’s Environment Authority.
A plea to keep the 10 K.M. limit in place was denied by the Andhra Pradesh Pollution Control Board, which pointed out that the industry was on the “Red List.” Even though the Board rejected the respondents’ plan, the Gram Panchayat gave the go-ahead for them to build the facility. The Commissioner of Industries suggested that the corporation move, but instead, it was given authorisation to change the land’s usage from agricultural to non-agricultural, and it subsequently began operations once more. The industry then asked the Board for an NOC in compliance with Section 25 of the Water Act.
The appeal board denied the proposal due to the possibility of contaminants, such as nickel catalysts, being discharged into the lake through direct or indirect means. After incurring significant costs to expand the firm, the industry petitioned the State Government once more, this time requesting an exception from the 10 K.M. regulation. The State Government issued a proclamation making an exemption and gave businesses advice on how to handle garbage. The industry’s NOC was withdrawn when the Society for the Preservation of the Environment and Quality of Life (SPEQL) contested this exemption and won a court stay order.
The business filed a second appeal under section 28 of the Water Act with the Appellate Authority (formed under the National Environmental Appellate Authority Act, 1997), backed by an affidavit by Prof. M. Santappa, the scientific officer of the Tamil Nadu Pollution Board. Overturning the Board’s directives, the appellate authority instructed the Board to issue a NOC to the appellant. The appeal board concluded that only industries built in the Doon Valley were eligible for inclusion on the Government of India’s “Red List”.
A PIL was then filed to reverse the prior decision made by the appellate authority. The appellate authority’s ruling was upheld by the High Court, which also ordered that the appellant be given an NOC. In this case, the Supreme Court answered the same query.
ISSUES RAISED:
- ‘Is the respondent-industry dangerous, and what is its polluting potential, taking into account the nature of the product, effluents, and location?
- Is it possible that the industry’s operations would have an influence on the sensitive catchment region, resulting in contamination of the Himayat Sagar and Osman Sagar Lakes, which supply drinking water to Hyderabad and Secunderabad?’
ARGUMENTS SUMMARY
The petitioners contended that the respondent company was obligated by Section 25(1) of the Water Act to provide proof that the water would not be polluted. They were represented by Additional Solicitor General Sri R.N. Trivedi. The respondent corporation did not have the authority to ask the Gram Panchayat for approval or to request a change of land, as the Court agreed with Sri Trivedi. Since the actions of the industry breached the Water Act, no equity could be retrieved. The Court continued, stating that the Appellate Authority had erred in determining that the Central Government’s letter of intent, the Panchayat’s approval of the plan, or the Collector’s modification of the land’s use qualified as grounds for applying the principle of “promissory estoppel.” As a result, the industry was unable to get an NOC after violating the Government’s policy decision.
The defendants contend that because the appeal board was unable to deny an NOC once a licence for a change of land use was issued, the court previously decided that the appellate body was subject to the promissory estoppel concept. Within a 10-kilometer radius surrounding the two reservoirs, other industries cause significant pollution, according to the seventh respondent’s legal representation.
Contentions Raised by Petitioner:
In this instance, the respondent industry was prohibited from carrying out construction and civil works without first securing a permit from the appellant, the Andhra Pradesh Pollution Control Board. Furthermore, according to the A.P. Pollution Control Board, the respondent industry’s goods would exacerbate the following types of pollution: Nickel is classified as a hazardous waste heavy metal under the Hazardous Waste (Management and Handling) Rules of 1989. The plant runs the risk of releasing emissions of nitrogen oxide and sulphur dioxide into the environment when it mixes waste materials with oil.
Contentions Raised by Respondent:
Following the denial of their letter requesting the NOC, the respondent industry filed an appeal with the appellate board under Section 28 of the Water Act. Additionally, the respondent included an affidavit from Tamil Nadu Pollution Control Board traffic officer Shri Santapa on behalf of the respondent industry. According to the proclamation, industry has embraced environmentally friendly technology, employed it, and taken all necessary precautionary measures to protect the environment. The director of answering industries also made a statement describing the technologies that went into building the facility.
The respondent industry revealed in a separate report that the personnel were hired from the esteemed Indian Institute of Chemical Technology in Hyderabad and that they had provided a certificate ensuring they would not discharge any acidic influents that may endanger the environment. According to the conclusions and information given above, it does not pollute.
REFERENCE TO REPORTS
‘The three expert bodies, which are-
a) The National Environmental Appellate Authority, New Delhi
b) The University Department of Chemical Technology (Autonomous), Matunga, Bombay
c) The National Geophysical Research Institute, Tarnaka, Hyderabad submitted their reports to the appellant Board of the State of Andhra Pradesh.’ The findings revealed that it was arbitrary and against many laws to grant the industry the NOC. It was also found that the permits given to the Red List companies were causing harm to water reservoirs and posing a major risk to the public’s health and safety as well as those who depend on the reservoirs for their drinking water. The study concluded that merely promising to exercise care and caution would not be sufficient because accidents were bound to happen.
JUDGEMENT
The court hears the respondent’s motion for reconsideration and reverses the decision made by the appellate authority. The court first considers whether the Central Government may prohibit one hazardous firm from operating within ten miles of a reservoir, even if it conforms with all legal requirements and environmental protection guidelines.
In this case, the court decides that, given the 10 km restriction and environmental protection measures, the defendant should not get a NOC and that the exemption should not be granted. The second issue that the secondary judge looked at was whether the respondent may seek a judicial exemption in light of the report that was provided to the court.
Although there are reservoirs within a 10-kilometre radius of the respondent industry, the court found that there won’t be any detrimental effects on the water quality since the respondent has committed to taking all required procedures to safeguard the environment. Nevertheless, because the necessary safety precautions and safeguards were not taken, the court dismissed the plaintiff’s claim of promissory estoppel.
The court ruled that because millions of people rely on reservoirs for their drinking water, the respondent should be protected. The court concluded that the safety precautions may be disregarded in the case of an accident or human error. You misled the court by using the precautionary principle in this case because it did not want to take a chance. As a result, the court determined that it could not reject the government’s policy choice and could not, therefore, issue a notice of clearance to the respondent.
The High Court’s decision was overturned by the Court, which decided that the authorities could not provide a building permit for businesses within ten km. The Andhra Pradesh government was ordered by the court to locate more businesses within ten kilometres of the reservoirs and to take the necessary steps to protect the drinking water in these two reservoirs. The Board was ordered by the Court to prohibit any polluting company from operating within ten km of reservoirs and to disclose any such businesses within four months. In addition, the Court decided that promissory estoppel was not relevant in this instance.
The Indian Law Commission was ordered by the Court to examine the nation’s current environmental laws. The Court also recommended for the formation of environmental tribunals made up of environmental law experts and members of the court.
ANALYSIS
In the impugned judgment, the Supreme Court relied on the judicial doctrine of the Precautionary Principle and also the new Burden of Proof placed forth in the Vellore Citizens Welfare Forum vs. Union of India and Others[1]. As the name indicates, the Precautionary Principle compels those in authority to anticipate, prevent, and resist the source of environmental damage. This policy is based on the sound concept that it is preferable to err on the side of prudence and safety than on the wrong side, where environmental damage is irreversible. To put it another way, rather than seeking therapy after environmental damage has happened, preparations should be performed ahead of time. It is better to be safe now rather than later. The cure is superior than prevention.
The Court in the present judgment directed that the authority to be appointed under Section 3(3) of the Environment (Protection) Act, 1986[2] shall implement the Precautionary Principle and also the Polluter Pays Principle. Furthermore, it was found that when a risk of considerable or irreversible environmental damage is identified, the burden of proof shifts to the individual seeking to carry out the activity in issue.
The Supreme Court concluded that the government cannot grant an exception to a specific industry that is located in or trying to locate in an area with a total ban on the development of businesses. The Water Act of 1974 does not allow the State Government to exclude an entity from the execution of the prohibitive order under Section 3(2)(v) of the Environment Protection Act of 1986. As a consequence, the approval of the A.P. Pollution Control Board was rightly denied.
The Court determined that appropriate reforms were required to ensure that appellate authorities or tribunals always included Judicial and technical professionals who were well-versed in environmental legislation. The same suggestion was given by this court in the M.C. Mehta and Another vs. Union of India and Others and Shriram Foods and Fertilizers Industries and Another v. Union of India and Others[3]. The Court further directed the Central Government to create an authority following Section 3(3) of the Environment Protection Act. This body should be chaired by a retired High Court Judge and may include other members appointed by the Central Government who are knowledgeable on pollution management and environmental protection.
CONCLUSION
The decision of the honourable justices, in my opinion, is reasonable and appropriate since the court cannot use its jurisdiction to promote a certain individual or corporation. Because the two reservoirs in question are essential to the area and provide fresh drinking water to millions of people, this misuse of authority will lead to the court acting arbitrarily, which is against the public interest.
The general people will undoubtedly suffer if the court acts arbitrarily. It will also be a violation of Indian Constitutional Article 21, which guarantees the right to safe drinking water. As a result, when the Precautionary Principle is used, the court acts reasonably and morally.
Humans have the right to live a healthy and productive life in harmony with the environment. The UN General Assembly defined the right to sustainable development to be an inherent human right in the Declaration on the Right to Development in 1986. “Human beings are at the centre of concerns for sustainable development,” said the Rio Conference in 1992. Thus, access to drinking water is a need for life, and it is the state’s responsibility under Article 21 to supply safe drinking water to its residents. In Narmada Bachao Andolan vs Union of India,[4] Kirpal J observed, “Water is the basic need for the survival of human beings and is part of the right of life and human rights as enshrined in Article 21 of the Constitution of India.”
The right to a healthy environment must be balanced with the right to sustainable growth. As the Supreme Court noted in this decision, there is a need to establish environmental courts in order to expedite the resolution of environmental cases. It is also vital to take steps to decrease environmental deterioration in order to develop particular standards for such hazardous enterprises.
BIBLIOGRAPHY
- A.P. Pollution Control Board vs Prof.M.V.Nayudu (Retd.) & Others , 1999. (n.d.). Retrieved from https://lawtimesjournal.in/a-p-pollution-control-board-vs-prof-m-v-nayudu-retd-others-1999/
- Global Recycling, India’s Sewage Treatment Policy: Between Dysfunctionality and Multi-Billion Dollar Opportunity, (2020). (n.d.). Retrieved from https://globalrecycling.info/archives/3814#:~:text=In%201992%2C%20a%20World’s%20Health,directly%20into%20the%20Ganges%20River
- PTI, National Geographic Society to launch expedition to study plastic pollution in Ganga, Outlook, (May 6, 2019). (n.d.). Retrieved from https://www.outlookindia.com/newsscroll/national-geographic-society-to-launch-expedition-to-study-plastic-pollution-in-ganga/1529645
- WHO, “Progress on drinking water and sanitation: Joint Monitoring ProGram”, WHO/UNICEF Joint Monitoring Report, (2012). (n.d.). Retrieved from https://www.who.int/publications/i/item/9789280646320
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[1] 1996 (5) SCC 647
[2] ‘(3) The Central Government may, if it considers it necessary or expedient so to do for the purposes of this Act, by order, published in the Official Gazette, constitute an authority or authorities by such name or names as may be specified in the order for the purpose of exercising and performing such of the powers and functions (including the power to issue directions under section 5) of the Central Government under this Act and for taking measures with respect to such of the matters referred to in sub-section (2) as may be mentioned in the order and subject to the supervision and control of the Central Government and the provisions of such order, such authority or authorities may exercise the powers or perform the functions or take the measures so mentioned in the order as if such authority or authorities had been empowered by this Act to exercise those powers or perform those functions or take such measures.’
[3] AIR 1987 SC 965
This article is written and submitted by Aishwarya Patil during her course of internship at B&B Associates LLP. Aishwarya is a 3rd year year B.A.LL.B student at NLU, Aurangabad.
