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A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.), (SC) : Law Finder Doc Id #
29869

1999(1) R.C.R.(Civil) 570 : 1999 AIR (SC) 812 : 1999(2) SCC 718 : 1999(1)
Scale 140 : 1999(1) JT 162 : 1999(1) SCR 235 : 1999 DNJ [SC] 102 : 1999
SCWR 434 : 1999(10) Supreme 195

SUPREME COURT OF INDIA

Before :- S.B. Majmudar and M. Jagannadha Rao, JJ.

Civil Appeal Nos. 368-371 of 1999 (Arising out of SLP (C) Nos. 10317-10320 of 1998).
D/d. 27.1.1999.

A.P. Pollution Control Board - Appellant

Versus

Prof. M.V. Nayudu (Retd.) - Respondent

WITH

Civil Appeal Nos. 372, 373 of 1999 (Arising out of SLP (C) Nos. 10330 and 13380 of
1998).

For the Appellant :- Mr. R.N. Trivedi, Additional Solicitor General with Mr. Nikhil Nayyar,
Mr. S.V. Bhatt and Ms. Urmila Sirur, Advocates in C.A. Nos. 368-371 and 371 of 1999.

For the Appellant :- Mr. P.S. Narasimha, Advocate for Mr. V.G. Pragasam, Advocate in
C.A. No. 373 of 1999.

For the Respondents :- Mr. M.N. Rao, Senior Advocate with Mr. K. Ram Kumar, Mr. Y.
Subba Rao, Ms. Asha G. Nair, Mr. Sridhar, Ms. Santinarayan and Mr. A. Subba Rao,
Advocates.

A. Pollution Control matters - Precautionary principle - Precautionary principle

is still evolving though it is accepted as part of the international customary law
- It applies according to the situation and circumstances of each case.

[Para 31]

B. Pollution Control matters - Burden of proof - Widespread toxic pollution is

major threat to essential ecological processes - It is appropriate to place the
burden of proof on the person or entity proposing the activity that is potentially
harmful to environment - They are to discharge this burden by showing the
absence of a reasonable ecological or medical concern - Result would be that if

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insufficient evidence is presented by them to alleviate concern about the level

of uncertainty, then the presumption should operate in favour of environmental
protection.

[Paras 34 and 35]

C. Pollution Control matters - Environment and Pollution Control matters -

Technical matters - The Courts do not possess the expertise in all technical and
scientific matters of extreme complexity - The Tribunals or the appellate
authorities dealing with such matters must be manned by technical personnels
well versed in environmental laws in addition to judicial members - Such defects
in the constitution of these bodies can certainly undermine the very purpose of
the legislations.

[Paras 38, 42 and 43]

D. Pollution Controll Laws - Environment and Pollution control Laws - Appellatee

Tribunals - Right to appeal - Under all the Acts and rules like Water (Prevention
and Pollution) Act, 1974, Air (Prevention of Pollution) Act, Hazardous Wastes
(Management & Handling) Rules, 1989, Environment (Protection) Act, 1986,
National Enviornment Tribunal Act, 1995 there should be a right of regular
appeal to the Court.

[Para 46]

E. Constitution of India, Articles 32, 136 and 226 - Reference - Pollution Control
matters - Environmental matters - While dealing with environmental matters
the Supreme Court and the High Courts can make a reference to the expert
bodies/Tribunals having expertise in scientific and technical aspects for
investigation and opinion - Any opinion rendered by such bodies would be
subject to the approval of the Court - Against M/s Surana Oils and Derivatives
(India) Ltd. in a petition filed by the Pollution Control Board, the Supreme Court
referred the following questions to the Appellate Authority under the National
Environmental Appellate Authority Act, 1997 :-
(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 ?

[Para 53]

Cases referred :-

Vellore Citizens' Welfare Forum v. Union of India and others, 1995(5) SCC 647.

Ashburton Acclamatization Society v. Federated Farmers of New Zealand, 1988(1) NZLR

78.

M.C. Mehta v. Union of India and Shriram Foods and Fertilizers, 1986(2) SCC 175.

Paramjit Kaur v. State of Punjab, 1998(5) SCALE 219 : 1998(6) J.T. 338.

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JUDGMENT

M. Jagannadha Rao, J. - Leave granted in all the special leave petitions. It is said :

"The basic insight of ecology is that all living things exist in interrelate systems;
nothing exists in isolation. The word system is 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)."

Four of these appeals which arise out of the SLP (C) Nos. 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.

2. 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
and 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.

3. 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 appeals.

4. According to the Pollution Control Board, under the notification No. J.20011/15/88-iA,
Ministry of Environment and 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 1A, Ministry
of Environment and Forests of Government of India dated 1.2.1989, 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.

5. On 31.3.1994, 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. radious of the two
lakes, Himayat Sagar and Osman Sagar, in order to monitor the quality of water in these
reservoirs which supply water to the twin cities of Hyderabad and Secunderabad.

6. In January 1995, the respondent company was incorporated as 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 Stearic Acid, Dehydrated Castor Oil,
Methylated 12-HSA, D. Co., Fatty Acids with by- products like Glycerine, 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.

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7. The respondent Company purchased 12 acres of land on 26.9.1995 in Peddashpur

village, Shamshabad Mandal. The Company also applied for consent for establishment of
the industry through the single window clearance committee of the Commissionerate of
Industries, Government of Andhra Pradesh, in November, 1995. On 28.11.1995, the
Government of Andhra Pradesh, wrote to the Ministry of Industry, Government of India
as follows :

"The State Government recommends the application of the unit for grant of letter
of intent for the manufacture of B.S.S. Grade Castor Oil in relaxation of locational
restriction subject to NOC from A.P. Pollution Control Board, prior to taking
implementation steps."

On 9.1.1996, the Government of India 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.

8. 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 and Sewerage Board, the Municipal
Administration and Urban Development Department issued GO No. 111 on 8.3.1996
reiterating the 10 k.m. prohibition as contained in the GO 192 dated 31.3.1994 but
making some concessions in favour of residential development.

9. In the pre-scrutiny stage on 24.5.1996 by the Single Window Clearance Committee,

which the company's representative attended, the application of the industry was
rejected by the A.P. Pollution Control Board since the proposed site fell within 10 k.m.
and such a location was not permissible as per GOMs 111 dated 8.3.96. On 31.5.1994,
the Gram Panchayat approved plans for establishing factory.

10. On 31.3.1996, the Commissionerate of Industries rejected the location and directed
alternative site to be selected. On 7.9.1996, the Dt. Collector granted permission for
conversion of the site (i.e. within 10 k.m.) to be used for non-agricultural purposes.

11. On 7.4.1997, the company applied to the A.P. Pollution Control Board, seeking
clearance to set-up the unit under Section 25 of the Water Act. It may be noted that in
the said application, the Company listed the following as by-products of its processes :

"Glycerine, spent bleaching earth and carbon and spent nickel catalysts."

According to the AP Pollution Board the products manufactured by this industry would
lead to the following sources of pollution :

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"(a) Nickel (Solid waste) which is heavy metal and also a hazardous waste under
Hazardous Waste (Management and Handling) Rules, 1989.

(b) There is a potention of discharge or run off from the factory combined joining
oil and other waste products.

(c) Emission of Sulphur Dioxide and oxide of nitrogen.

It was at that juncture that the company secured from the Government of A.P. by GOMs
153 dated 3.7.1997 exemption from the operation of GOMs 111 of 8.3.1996 which
prescribed the 10 k.m. rule from the Osman Sagar and Himayat Sagar Lakes.

12. In regard to grant of NOC by the A.P. Pollution Board, the said Board by letter dated
30.7.1997 rejected the application dated 7.4.1997 for consent, stating :

"(1) The unit is a polluting industry and falls under the red category of polluting
industry under section S. No. 11 of the classification of industries adopted by
MOEF, GOI and opined that it would not be desirable to locate such industry in the
catchment area of Himayatsagar in view of the GOMs No. 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.

13. 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 (Advisor) 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 Board of Directors of this company also filed an affidavit. The Managing
Director of the respondent company filed an affidavit explaining the details of the
technology employed in the erection of the plant. Prof. M. Shantappa in his report stated
that the company has used the technology obtained from the Indian Institute of Chemical
Technology of (IICT), Hyderabad which is premier institute and that he would not think of
a better institute in the country for transfer of the technology. The said Institute has
issued a certificate that this industry will not discharge any acidic effluents and the solid
wastes which are the by-products are saleable and they will be collected in M.S. drums
by mechanical process and sold. The report of Dr. Shantappa also showed that none of
the by-products would fall on the ground of the factory premises. He also stated that all
the conditions which were proposed to be imposed by the Technical Committee on the
company at its meeting held on 16.7.97 have been complied with. On the basis of these
reports, the appellate authority stated that this industry "is not a polluting industry". It
further held that the notification dated 1.2.1989 of the Ministry of Environment and
Forests, Government of India, whereby industries manufacturing Hydrogenated
Vegetable oils were categorised as "red category" industries, did not apply to the
catchment areas of Himayat Sagar and Osman Sagar lakes and that notification was
applicable only to the Doon Valley of UP and Dahanu in Maharashtra. The appellate
authority accordingly directed the AP Pollution control Board to give its consent for

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establishment of the factory on such conditions the Board may deem fit as per GOMs 153
dated 3.7.1997 (as amended by GO 181 dated 7.8.1997).

14. Before the above order dated 5.1.98 was passed by the appellate authority, some of
these public interest cases had already been filed. After the 5.1.98 order of the appellate
authority, a direction was sought in the public interest case W.P. No. 2215 of 1996 that
the order dated 5.1.1998 passed by the appellate authority was arbitrary and contrary to
interim orders passed by the High Court in W.P. 17832, 16969 and 16881 of 1997.

15. The respondent company, in its turn filed WP No. 11803 of 1998 for directing the A.P.
Pollution Control Board to give its consent, as a consequence to the order of the appellate
authority dated 5.1.1998.

16. 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 and 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.

17. 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 Section 28 of the Water Act dated
5.1.98 and the report of Dr. Sidhu, to the effect that even if hazardous waste was a by-
product, the same could be controlled if the safeguards mentioned in the Hazardous
Wastes (Management and Handling) Rules, 1989 were followed and in particular those in
Rules 5, 6 and 11, were taken. The Rules made under Manufacture, Storage and Import
of Hazardous Chemical (MSIHC) Rules, 1989 also permit industrial actively provided the
safeguards mentioned therein are taken. The Chemical Accidents (Emergency Planning,
Preparedness and Response) Rules, 1991 supplement the MSIHC Rules, 1989 on accident
preparedness and envisage a 4-tier crisis management system in the country. Therefore,
merely because an industry produced hazardous substances, the consent could not be
refused. It was stated that as the matter was highly technical, interference was not called
for, as "rightly" contended by the learned counsel for the respondent company. The High
Court could not sit in appeal over the order of the appellate authority. For the above
reasons, the High Court dismissed the three public interest cases, and the writ petitions
filed by the Gram Panchayat. The High Court allowed the writ petition filed by the
respondent industry and directed grant of consent by the A.P. Pollution Control Board
subject to such conditions as might be imposed by the Board. It is against the said
judgment that the A.P. Pollution Control Board has filed the five appeals. One appeal is
filed by SPEQL.

18. In these appeals, we have heard the preliminary submission of Shri R.N. Trivedi,
learned Additional Solicitor General for the A.P. Pollution Control Board, Shri M.N. Rao,
learned senior counsel for the respondent company, and Shri P.S. Narasimha for the
appellant in the appeal arising out of SLP (C) No. 13380 of 1998 and others.

19. It will be noticed that various issues arise in these appeals concerning the validity of

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the orders passed by the 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
validly 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 111 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. We are just now not
going into all these aspects but are confining ourselves to the issues on the technological
side.

20. 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 regard to the efficacy of
the technology proposed to be adopted by the industry or in regard to the need for
alternative technology or modifications as suggested by the Pollution Control Board or
other bodies. The present case illustrates such problems. It has become, therefore,
necessary to refer to certain aspects of environmental law already decided by this Court
and also to go into the above scientific problems, at some length and find solutions for
the same.

Environment Courts/Tribunals - problems of complex technology :

21. The difficulty faced by environmental courts in dealing with highly technological or
scientific data appears to be a global phenomenon.

22. Lord Woolf, in his Garner lecture to UKELA, on the theme "Are the Judiciary
Environmentally Myopic ?" (See 1992 J. Envtl, Law Vol. 4, No. 1, P1) commented upon
the problem of increasing specialisation in environmental law and on the difficulty of the
Courts, in their present form, moving beyond their traditional role of detached
"Wednesbury" review. He pointed out the need for a Court or Tribunal

"having a general responsibility for overseeing and enforcing the safeguards

provided for the protection of the environment ...... The Tribunal could be granted
a wider discretion to determine its procedure so that it was able to being to bear its
specialist experience of environmental issues in the most effective way"

Lord Woolf pointed out the need for

"a multi-faceted, multi-skilled body which would combine the services provide by
existing Courts, Tribunals and Inspectors in the environmental field. it would be a
'one stop shop', which should lead to faster, cheaper and the more effective
resolution of disputes in the environmental area. It would avoid increasing the load
on already overburdened lay institutions by trying to compel them to resolve issues
with which they are not designed to deal. It could be a forum in which the Judges
could play a different role. A role which enabled them not to examine
environmental problems with limited vision. It would however be based on our
existing experience, combining the skills of the existing inspectorate, the Land
Tribunal and other administrative bodies. It could be an exciting project."

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According to Lord Woolf, "while environmental law is now clearly a permanent feature of
the legal scene, it still lacks clear boundaries." 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 and 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.

23. In the USA the position is not different. It is accepted that when the adversary
process yields conflicting testimony on complicated and unfamiliar issues and the
participants cannot fully understand the nature of the dispute, Courts may not be
competent to make reasoned and principled decision. Concern over this problem led the
Carnegie Commission of Science and Technology (1993) and the Government to
undertake a study of the problems of science and technology in Judicial decision making.
In the introduction to its final report, the Commission concluded :

"The Courts' ability to handle complex science-rich cases has recently been called
into question, with widespread allegations that the Judicial system is increasingly
unable to manage and adjudicate science and technology (S&T) issues. Critics have
objected that Judges cannot make appropriate decisions because they lack
technical training, that the Jurors do not comprehend the complexity of the
evidence they are supposed to analyze, and that the expert witnesses on whom the
system relies are mercenaries whose biased testimony frequently produces
erroneous and inconsistent determinations. If these claims go unanswered, or are
not dealt with, confidence in the Judiciary will be undermined as the public
becomes convinced that the Courts as now constituted are incapable of correctly
resolving some of the more pressing legal issues of our day."

The uncertain nature of scientific opinions :

24. In the environment field, the uncertainty of scientific opinions has created serious
problems for the Courts. In regard to the different goals of Science and the law in the
ascertainment of truth, the U.S. Supreme Court observed in Daubert v. Merrel Dow
Pharmaceuticals Inc., (1993) 113 S.Ct 2786, as follows :

"..... there are important differences between the quest for truth in the Court-room
and the quest for truth in the laboratory. Scientific conclusions are subject to
perpetual revision. Law, on the other hand, must resolve disputes finally and
quickly."

25. It has also been stated by Brian Wynee in 'Uncertainity and Environment Learning,
(2. Global Envtl. Change 111) (1992) :

"Uncertainity, resulting from inadequate data, ignorance and indeterminacy, is an

inherent part of science."

Uncertainty becomes a problem when scientific knowledge is institutionalised in policy

making or used as a basis for decision-making by agencies and courts. Scientists may

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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 uncertainty 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 pp 510-511).

26. 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 animal 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 problems of later interpretation. The timing between
exposure and observable effect creates intolerable delays before regulation occurs. (See
Scientific Uncertainty in Protective Environmental Decision making - by Alyson C.
Flournay (Vol. 15) 1991 Harv. Envtt. Law Review P. 327 at 333-335).

It is the above uncertainty of science in the environmental context, that has led
International Conferences to formulate new legal theories and rules of evidence. We shall
presently refer to them.

The Precautionary Principle and the new Burden of Proof - The Vellore Case :

27. The 'uncertainty' of scientific proof and its changing frontiers from time to time has
led to great changes in environment concepts during the period between the Stockholm
Conference of 1972 and the Rio Conference of 1992. In Vellore Citizens' Welfare
Forum v. Union of India and others, 1995(5) SCC 647, a three Judges Bench of this
Court referred to these changes, to the 'precautionary principle' and the new concept of
'burden of proof' in environmental matters. Kuldip Singh, J. after referring to the
principles evolved in various international Conferences and to the concept of 'Sustainable
Development', stated that the Precautionary Principle, the Polluter Pays Principle and the
special concept of Onus of Proof have now emerged and govern the law in our country
too, as is clear from Articles 47, 48-A and 51-A(g) of our Constitution and that, in fact, in
the various environmental statutes, such as the Water Act, 1974 and other statutes,
including the Environment (Protection) Act, 1986, these concepts are already implied.
The learned Judge declared that these principles have now become part of our law. The
relevant observations in the Vellore case in this behalf read as follows :

"In view of the above-mentioned constitutional and statutory provisions we have no

hesitation in holding that the Precautionary Principle and the Polluter Pays Principle
are part of the environmental law of the country."

The Court observed that even otherwise the above-said principles are accepted as part of
the Customary International Law and hence there should be no difficulty in accepting
them as part of our domestic law. In fact on the facts of the case before this Court, it was
directed that the authority to be appointed under section 3(3) of the Environment
(Protection) Act, 1986

"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 Industrialist who is proposing to alter the status quo, has also
become part of our environmental law.

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28. 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 authorities can properly apply the said principles in the matters which
come before them.

The Precautionary Principle replaces the Assimilative Capacity Principle :

29. A basic shift in the approach to environmental protection occurred 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 environmental harm was predicted and there would be sufficient
time to act in order to avoid such harm. But in the 11th Principle of the U.N. General
Assembly Resolution on World Charter for Nature, 1982, the emphasis shifted to the
'Precautionary Principle', and this was reiterated in the Rio Conference of 1992 in its
Principle 15 which reads as follows :

"Principle 15 : In order to protect the environment, the precautionary approach

shall be widely applied by States according to their capabilities. Where there are
threats of serious or irreversible damage; lack of full scientific certainity shall not
be used as a reason for proposing cost- effective measures to prevent
environmental degradation."

30. In regard to the cause for the emergence of this principle, Charmian Barton, in the
article earlier referred to in Vol. 22, Harv. Entt. L.Rev. (1998) p. 509 at (p. 547) says :

"There is nothing to prevent decision makers from assessing the record and
concluding there is inadequate information on which to reach a determination. If it
is not possible to make a decision with "some" confidence, then it makes sense to
err on the side of caution and prevent activities that may cause serious or
irreversible harm. An informed decision can be made at a later stage when
additional data is available or resources permit further research. The ensure that
greater caution is taken in environmental management, implementation of the
principle through Judicial and legislative means is necessary."

In other words, inadequacies of science is the real basis that has led to the Precautionary
Principle of 1982. It is based on the theory that it is better to err on the side of caution
and prevent environmental harm which may indeed become irreversible.

31. The principle of precaution involves the anticipation of environmental harm and
taking measures to avoid it or to choose the least environmentally harmful activity. It is
based on Scientific uncertainty. Environmental protection should not only aim at
protecting health, property and economic interest but also protect the environment for its
own sake. Precautionary duties must not only be triggered by the suspicion of concrete
danger but also by (justified) concern or risk potential. The precautionary principle was
recommended by the UNEP Governing Council (1989). The Bomako Convention also
lowered the threshold 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, Joint
Secretary and Legal Adviser, Ministry of External Affairs, New Delhi. Special - Rapporteur,
International Law Commission dated 3.4.1998 paras 61 to 72).

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The Special Burden of Proof in Environment cases :

32. 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/industrialist to show that his
action is environmentally benign."

"The 'onus of proof' is on the action or the developer/industrialist to show that his
action is environmentally benign."

33. It is to be noticed that while the inadequacies of science have led to the
'precautionary principle', the said 'precautionary principle' in its turn, has led to the
special principle of burden of proof in environmental cases where burden as to the
absence of injurious effect of the actions proposed, is placed on those who want to
change the status quo (Wynne, Uncertainity and Environmental Learning, 2 Global Envtl.
Change 121 (1992) at p. 123). This is often termed as a reversal of the burden of proof,
because otherwise in environmental cases, those opposing the change would be
compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it
is necessary that the party attempting to preserve the status quo by maintaining a less-
pollutted state should not carry the burden of proof and the party who wants to alter it,
must bear this burden. (See James M. Olson, Shifting the Burden of Proof, 20 Envtl. Law
p. 891 at 898 (1990). (Quoted in Vol. 22 (1998) Harv. Env. Law Review p. 509 at 519,
550).

34. The precautionary principle suggested that where there is an identifiable risk of
serious or irreversible harm, including, for example, extinction of species, widespread
toxic pollution in major threats to essential ecological processes, it may be appropriate to
place the burden of proof on the person or entity proposing the activity that is potentially
harmful to the environment. (See Report of Dr. Sreenivasa Rao Pemmaraju, Special
Rapporteur, International Law Commission, dated 3.4.1998, para 61).

35. It is also explained that if the environmental risks being run by regulatory in action
are in some way "uncertain but non-negligible", then regulatory action is justified. This
will lead to the question as to what is the 'non-negligible risk'. In such a situation, the
burden of proof is to be placed on those attempting to alter the status quo. They are to
discharge this burden by showing the absence of a 'reasonable ecological or medical
concern'. That is the required standard of proof. The result would be that if insufficient
evidence is presented by them to alleviate concern about the level of uncertainty, then
the presumption should operate in favour of environmental protection. Such a
presumption has been applied in Ashburton Acclamatization Society v. Federated
Farmers of New Zealand, 1988(1) NZLR 78. The required standard now is that the
risk of harm to the environment or to human health is to be decided in public interest,
according to a 'reasonable 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 :

36. 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 Pollution) Act, 1974,

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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 Commissioner (see notification dated 18.2.19920 resulting in there
being in NCT neither a regular judicial member nor a technical one. Again, under the
National Environmental Tribunal Act, 1995, which has power to award compensation for
death or injury to any person (other than workmen), the said Tribunal under section 10
no doubt consists of a Chairman who could be a Judge or retired Judge of the Supreme or
High Court and a Technical Member. But section 10(1)(b) read with section 10(2)(b) or
(c) permits a Secretary to Government or Additional Secretary who has been a Vice-
Chairman for 2 years to be appointed as Chairman. We are citing the above as instances
of the grave inadequacies.

Principle of Good Governance : Need for modification of our statutes, rules and
notifications by including adequate Judicial and Scientific inputs :

37. Good Governance is an accepted principle of international and domestic law. it

comprises of the rule of law, effective State institutions, transparency and accountability
in public affairs, respect for human rights and the meaningful participation of citizens -
(including scientists) - in the political processes of their countries and in decisions
affecting their lives. (Report of the Secretary General on the work of the Organization,
Official records of the UN General Assembly, 52 session, Suppl. I (A/52/1) (para 22). It
includes the need for the State to take the necessary 'legislative, administrative and
other actions' to implement the duty of prevention of environmental harm, as noted in
Article 7 of the draft approved by the Working Group of the International Law
Commission in 1996. (See Report of Dr. Sreenivasa Rao Pemmaraju, Special Rapporteur
of the International Law Commission dated 3.4.1998 on 'Prevention of trans-boundary
damage from hazardous activities') (paras 103, 104). Of paramount importance, in the
establishment of environmental Courts, Authorities and Tribunals is the need for
providing adequate Judicial and scientific inputs rather than leave complicated disputes
regarding environmental pollution to officers drawn only from the Executive.

38. It appears to us from what has been stated earlier that things are not quite
satisfactory and there is an urgent need to make appropriate amendments so as to
ensure that at all times, the appellate authorities or tribunals consist of Judicial and also
Technical personnel 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.

39. 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.

40. 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 v. Union of India and
Shriram Foods and Fertilizers Case, 1986(2) SCC 175 (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 increasingly coming up for adjudication and these cases involve

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assessment and evolution of scientific and technical data, it might be desirable to

set up Environmental Courts on the regional basis with one professional Judge and
two experts drawn from the Ecological Sciences Research Group keeping in view
the nature of the case and the expertise required for its adjudication. There would
of course be a right of appeal to this Court from the decision of the Environment
Court."

In other words, this Court not only contemplated a combination of a Judge and Technical
Experts but also an appeal to the Supreme Court from the Environmental Court.

41. Similarly, in the Vellore case, 1996(5) SCC 647, while criticising the inaction on the
part of Government of India in the appointment of an authority under section 3(3) of the
Environment (Protection) Act, 1996. Kuldip Singh, J. observed that the Central
Government should constitute an authority under section 3(3) :

"headed by a retired judge of the High Court and it may have other members -
preferably with expertise in the field of pollution control and environmental
protection - to be appointed by the Central Government."

We have tried to find out the result of the said directions. We have noticed that pursuant
to the observations of this Court in Vellore case, certain notifications have been issued by
including a High Court Judge in the said authority. In the notification So.671(E) dated
30.9.1996 issued by the Government of India for the State of Tamil Nadu under Section 3
(3) of the 1986 Act, appointing a 'Loss of Ecology (Prevention and Payment of
Compensation) authority, it is stated that it shall be manned by a retired High Court
Judge and other technical members who would frame a scheme or schemes in
consultation with NEERI etc. It could deal with all industries including tanning industries.
A similar notification So. 704E dated 9.10. 1996 was issued for the 'Environmental
Impact Assessment Authority' for the NCT including a High Court Judge. Notification
dated 6.2.1997 (No. 88E) under section 3(3) of the 1986 Act dealing with shrimp
industry, of course, includes a retired High Court Judge and technical persons.

42. As stated earlier, the Government of India should, in our opinion, bring about
appropriate amendments in the environmental statutes, Rules and notification to ensure
that in all environmental 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 environment and pollution.

43. 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 Act can be made for
the present.

44. There is also need for amending the notifications issued under Rule 12 of the
Hazardous Wastes (Management and 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 of these recommendations
and take appropriate action urgently.

45. We finally come to the appellate authority under the National Environment Appellate

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Authority Act, 1997. In our view it comes very near to the ideals set by this Court. Under
that statute, the appellate authority is to consist of a sitting or retired Supreme Court
Judge or a sitting or retired Chief Justice of a High Court and a Vice-Chairman who has
been an administrator of high rank with expertise in technical aspects of problems
relating to environment; and Technical Members, not exceeding three, who have
professional knowledge or practical experience in the areas pertaining to conservation,
environmental management, land or planning and development. Appeals to this appellate
authority are to be preferred by persons aggrieved by an order granting environmental
clearance in the areas in which any industries, operations or processes etc. are to be
carried or carried subject to safeguards.

46. As stated above and we reiterate that there is need to see that in the appellate
authority under the Water (Prevention of Pollution) Act, 1974, the Air (Prevention of
Pollution) Act, and the appellate authority under Rule 12 of the Hazardous Wastes
(Management and Handling) Rules, 1989, under the notification issued under Section 3
(3) of the Environment (Protection) Act, 1986 for National Capital Territory and under
section 10 of the National Environment Tribunal Act, 1995 and other appellate bodies,
there are invariably Judicial and Technical Members included. This Court has also
observed in M.C. Mehta v. Union of India and Shriram Foods and Fertilizers Case,
1986(2) SCC 176 (at 262) that there should be a right of regular appeal to the
Supreme Court, i.e. an appeal incorporated in the relevant statutes. This is a matter for
the Governments concerned to consider urgently, by appropriate legislation whether
plenary or subordinate or by amending the notifications.

The duty of the present generation towards posterity : Principle of Inter- generational
Equity : Rights of the Future against the Present :

47. The principle of Inter-generational equity is of recent origin. The 1972 Stockholm
Declaration refers to it in principles 1 and 2. In this context, the environment is viewed
more as a resource basis for the survival of the present and future generations.

Principle 1 states :

"Man has the fundamental 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 safeguards
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 of the rights of the future against the present (proposals
of Sands and 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 National
Environmental Appellate Authority under the 1997 Act for investigation and opinion :

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48. In a large under of matters coming up before this Court either under Article 32 or
under Article 136 and also before the High Courts under Article 226, complex issues
relating to environment and pollution, science and technology have been arising and in
some cases, this Court has been finding sufficient difficulty in providing adequate
solutions to meet the requirements of public interest, environmental protection,
elimination of pollution and sustained development. In some cases this Court has been
referring matters to professional or technical bodies. The monitoring of a case as it
progresses before the professional body and the consideration of objections raised by
affected parties to the opinion given by these professional technical bodies have again
been creating complex problems. Further these matters some time require day to day
hearing which, having regard to other workload of this Court, (a factor mentioned by Lord
Woolf) it is not always possible to give urgent decision. In such a situation, this Court has
been feeling the need for an alternative procedure which can be expeditious and
scientifically adequate. Question is whether, in such a situation, involving grave public
interest, this Court could seek the help of other statutory bodies which have an adequate
combination of both Judicial and technical expertise in environmental matters, like the
Appellate Authority under the National Environmental Appellate Authority Act, 1997 ?

49. A similar question arose in Paramjit Kaur v. State of Punjab, 1998(5) SCALE
219 : 1998(6) J.T. 338, decided by this Court on 10.9.1998. In that case, initially, W.
Petitions (Crl.) No. 447 and 497 of 1995 were filed under Article 32 of the Constitution of
India alleging flagrant violations of human rights in the State of Punjab as disclosed by a
CBI report submitted to this Court. This Court felt the need to have these allegations
investigated by an independent body. This Court then passed an order on 12.12.96
requesting the National Human Rights Commission to examine the matter. The said
Commission is headed by a retired Chief Justice of India and other expert Members. After
the matter went before the said Commission, various objections were raised as to its
jurisdiction. It was also contended that if these issues were to be 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 cases and
any determination by the Commission, wherever necessary or appropriate, would be
subject to the approval of the Supreme Court.

50. 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 v. 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 experts in the field (ii) if this Court could also request the
expert body to investigate or look into the allegations, unfettered by any limitations in
the Protection of Human Rights Act, 1993, (iii) that by so referring the matters to the
Commission, this Court was not conferring any new jurisdiction on the Commission, and
(iv) that the Commission would be acting only in aid of this Court. In our view, the above
procedure in Paramjit Kaur v. State of Punjab is equally applicable in the case before
us for the following reasons.

51. Environmental concerns arising in this Court under Article 32 or under Article 136 or
under Article 226 in the High Courts are, in our view, of equal importance as Human
Rights concerns. In fact both are to be traced to Article 21 which deals with fundamental
right to life and liberty. While environmental aspects concern 'life', human rights aspects
concern 'liberty'. In our view, in the context of emerging jurisprudence relating to

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environmental matters, - as it is the case in matters relating to human rights, - It is the

duty of this Court to render Justice by taking all aspects into consideration. With a view
to ensure that there is neither danger to environment nor to ecology and at the same
time ensuring sustainable development, this Court in our view, 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. The said
authority comprises of a retired Judge of the Supreme Court and Members having
technical expertise in environmental matters whose investigation, analysis of facts and
opinion, on objections raised by parties, could give adequate help to this Court or the
High Courts and also the needed reassurance. Any opinions rendered by the said
authority would of course be subject to the approval of this Court. On the analogy of
Paramjit Kaur's case, such a procedure, in our opinion, is perfectly within the bounds of
the law. Such a procedure, in our view, can be adopted in matters arising in this Court
under Article 32 or under Article 136 or arising before the High Courts under Article 226
of the Constitution of India.

The order of reference :

52. After the above view was expressed to counsel on both sides, certain draft issues
were prepared for reference. 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.

53. 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 ?

54. 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 their
counsel to file objections and lead such oral evidence or produce such documentary
evidence as they may deem fit and shall also give a hearing to the appellant or its
counsel to make submissions.

55. A question has been raised by the respondent industry that it may be permitted to
make trial runs for atleast three months so that the results of pollution could be
monitored and analysed. This was opposed by the appellant and the private respondent.
We have not thought it fit to go into this question and we have informed counsel that this
issues could also be left to the said Authority to decide because we do not know whether
any such trial runs would affect the environment or cause pollution. On this aspect also,
it shall be open to the authority to take a decision after hearing the parties.

56. Parties have requested that the authority may be required to give its opinion as early
as possible. We are of the view that the Authority could be requested to give its opinion
within a period of three months from the date of receipt of this order. We, therefore,
refer the above issues to the above- said Appellate Authority for its opinion and request
the Authority to give its opinion, as far as possible, within the period above-mentioned. If

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the Authority feels any further clarifications or directions are necessary from this Court, it
will be open to it to seek such clarifications or directions from this Court.

57. The Company shall make available photo copies of the paper books filed in this Court
or other papers filed in the High Court or before the authority under Section 28 of the
Water Act, 1974, for the use of the Appellate Authority.

58. The Registry shall communicate a copy of this order to the Appellate Authority under
the National Environmental Appellate Authority Act, 1997. Matter may be listed before us
after three months, as part-heard. Ordered accordingly.

59. In the context of recommendations made for amendment of the environmental laws
and rules by the Central Government and notifications issued by the Central and State
Governments, we direct copies of this judgment to be communicated to the Secretary,
Environment and Forests (Government of India), New Delhi, to the Secretaries of
Environment and Forests in all State Governments and Union Territories, and to the
Central Pollution Control Board, New Delhi. We further direct the Central Pollution Control
Board to communicate a copy of this judgment to all State Pollution Control Boards and
other authorities dealing with environment, pollution, ecology and forest and wildlife. The
State Governments shall also take steps to communicate this judgment to their
respective State Pollution Control Boards and other authorities dealing with the above
subjects - so that appropriate action can be taken expeditiously as indicated in this
judgment.

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