# A.P. POLLUTION CONTROL BOARD-II v. PROF. M.V. NAYUDU (RETD.) AND ORS

- **Citation:** [2000] Supp. 5 S.C.R. 249
- **Court:** Supreme Court of India
- **Decided:** 2000
- **Case number:** Civil Appeal Nos. 368-3 71 of 1999
- **Bench:** M. Jagannadha Rao, M.B. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-p-pollution-control-board-ii-v-prof-m-v-nayudu-retd-and-ors-17570
- **Pages:** 27

## Headnote

B
Pollution laws :
Environment (Protection) Act, 1986- -Sections 2(b), 3(2), 5-- Water
(Prevention and Control of Pollution) Act, 1974- -Sections 2(e), 2(k), 17, 18, C
19, 25-.00 by State prohibiting setting up any industry within JO KM~ from
the banks of the two lakes, Osman Sagar and Himayat Sagar; which supplies
drinking water to twin cities, Hyderabad and Secunderabad--By a GO, State
Government subsequently granting an exemption to a single industry, which
is declared to be hazardous, tu be set up within the prohibited area- -Held, D
the GO granting exemption is without statutory backing and also wholly
arbitrary and violative of- Article 21- -Constitution of India.
Precautionary Principle- When to be applied-Held, permission to set
up hazardous industry should not be allowed on mere assurances as the
chance of an accident, within such close proximity of the reservoirs cannot E
be rut ed out.
Principle of Promissory Estoppel-Applicability of- Permission from
Gram Panchayat and Collector for the use of the land and grant of letter of
intent from the Government-Action of the industry contrary to the statute-·- F
Estoppe/ cannot be against a statute-Hence question of estoppel does not
arise.
Constitution of India- Article 21--Right to healthy environment as
part of right to life-Held, access to drinking water is fundamental to life and
there is a duty on the State under the Constitution to provide clean drinking G
water to its citizens.
Union of India issued a Notification in 1988 listing various hazardous
industries in different categories in exercise of its powers vested under the
Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention
249
H
250
SUPREME COURT REPORTS [2000] SCPP. 5 S.C.R.
A and Control of Pollution) Act, 1981, the Water (Prevention and Control of
Pollution) Cess Act, 1977 and the Environment Protection Act, 1986 a11d
directing the Pollution Control Boards of the States to keep in view the
pollution-causing potential of the industry before granting consent from the
appellant-Board for setting up. Consequent to the directive, the State of Andhra
B Pradesh issued GO 192 dated 31.3.94 prohibiting location of industries within
10 KMs of the two reservoirs, Osman Sagar and Himayat Sagar, which caters
to the needs of drinking water to twin cities - Hyderabad and Secunderabad.
Respondent industry applied for consent from the appellant-Board for setting
up factory within 10 KMs in November 1995 through the Industries
Department of the State Government. The State recommended to the
C Government oflndia for grant of letter of intent in relaxation of 10 K.."1s, rule
subject to the respondent industry obtaining NOC from the appellant Board.
The Government of India granted the relaxation. Pursuant to GO 111 dated
8.3.96 issued by the Government reaffirming the 10 KMs, prohibition, the
Pollution Control Board rejected the application of the respondent industry.
D
The respondent industry obtained permission from the Gram Panchayat
for establishing a factory and from the District Collector for change of land
use from agricultural to non-agricultural and executed various civil works
in spite of the prohibition. The appellant Board rejected another application
of the respondent industry for setting up factory. The respondent industry
E then applied to the State Government seeking exemption from the 10 KMs,
rule contained in GO 111 dated 8.3.96 on the ground that it had invested huge
amounts to establish the industry and had almost completed the civil works
and had purchased and installed the machinery. The State by GO No. 153 dated
3.7.97 granted exemption from GO 111 to the respondent industry and
directed the appellant Board to prescribe conditions for treatment/disposal of
F aqueous/solid waste. Compelled by the direction of the State, the Appellant
Board passed an order dated 16. 7.97 directing the respondent industry to take
various precautions/safeguards as stated in the order.
The Society for Preser

## Text

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A.P. POLLUTION CONTROL BOARD-II
A
v.
PROF. M.V. NAYUDU (RETD.) AND ORS.
DECEMBER I, 2000
[M. JAGANNADHA RAO AND M.B. SHAH, JJ.]
B
Pollution laws :
Environment (Protection) Act, 1986- -Sections 2(b), 3(2), 5-- Water
(Prevention and Control of Pollution) Act, 1974- -Sections 2(e), 2(k), 17, 18, C
19, 25-.00 by State prohibiting setting up any industry within JO KM~ from
the banks of the two lakes, Osman Sagar and Himayat Sagar; which supplies
drinking water to twin cities, Hyderabad and Secunderabad--By a GO, State
Government subsequently granting an exemption to a single industry, which
is declared to be hazardous, tu be set up within the prohibited area- -Held, D
the GO granting exemption is without statutory backing and also wholly
arbitrary and violative of- Article 21- -Constitution of India.
Precautionary Principle- When to be applied-Held, permission to set
up hazardous industry should not be allowed on mere assurances as the
chance of an accident, within such close proximity of the reservoirs cannot E
be rut ed out.
Principle of Promissory Estoppel-Applicability of- Permission from
Gram Panchayat and Collector for the use of the land and grant of letter of
intent from the Government-Action of the industry contrary to the statute-·- F
Estoppe/ cannot be against a statute-Hence question of estoppel does not
arise.
Constitution of India- Article 21--Right to healthy environment as
part of right to life-Held, access to drinking water is fundamental to life and
there is a duty on the State under the Constitution to provide clean drinking G
water to its citizens.
Union of India issued a Notification in 1988 listing various hazardous
industries in different categories in exercise of its powers vested under the
Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention
249
H
250
SUPREME COURT REPORTS [2000] SCPP. 5 S.C.R.
A and Control of Pollution) Act, 1981, the Water (Prevention and Control of
Pollution) Cess Act, 1977 and the Environment Protection Act, 1986 a11d
directing the Pollution Control Boards of the States to keep in view the
pollution-causing potential of the industry before granting consent from the
appellant-Board for setting up. Consequent to the directive, the State of Andhra
B Pradesh issued GO 192 dated 31.3.94 prohibiting location of industries within
10 KMs of the two reservoirs, Osman Sagar and Himayat Sagar, which caters
to the needs of drinking water to twin cities - Hyderabad and Secunderabad.
Respondent industry applied for consent from the appellant-Board for setting
up factory within 10 KMs in November 1995 through the Industries
Department of the State Government. The State recommended to the
C Government oflndia for grant of letter of intent in relaxation of 10 K.."1s, rule
subject to the respondent industry obtaining NOC from the appellant Board.
The Government of India granted the relaxation. Pursuant to GO 111 dated
8.3.96 issued by the Government reaffirming the 10 KMs, prohibition, the
Pollution Control Board rejected the application of the respondent industry.
D
The respondent industry obtained permission from the Gram Panchayat
for establishing a factory and from the District Collector for change of land
use from agricultural to non-agricultural and executed various civil works
in spite of the prohibition. The appellant Board rejected another application
of the respondent industry for setting up factory. The respondent industry
E then applied to the State Government seeking exemption from the 10 KMs,
rule contained in GO 111 dated 8.3.96 on the ground that it had invested huge
amounts to establish the industry and had almost completed the civil works
and had purchased and installed the machinery. The State by GO No. 153 dated
3.7.97 granted exemption from GO 111 to the respondent industry and
directed the appellant Board to prescribe conditions for treatment/disposal of
F aqueous/solid waste. Compelled by the direction of the State, the Appellant
Board passed an order dated 16. 7.97 directing the respondent industry to take
various precautions/safeguards as stated in the order.
The Society for Preservation of Environment and Quality Life filed a
G Writ Petition for quashing the exemption order in GO 153 and obtained stay.
The appellant-Board refused to grant NOC as it was not desirable to locate
such an industry in the catchment area in view of GO 111. The respondent
industry filed an appeal under Section 28 of the Water Act, 1974 before the
appellant authority against the order of the appellant Board. The appellate
authority allowed the appeal and set aside the orders of the Board. A Public
H Interest Litigation petition was filed before the High Court for quashing the
AP POLLUTION CONJ ROL BOARD-II v. PROF MY. ~A YUDU
25 J
order of the appellate authority. The High Court upheld the orders of the A
appellate authority and directed the appellant Board to grant of NOC. Hence
these appeals by the Board.
This Court by order dated 27.1.99 sought an opinion from National
Environmental Appellate Authority on the likelihood of causing serious
pollution to the drinking water in the lakes by the respondent industry. This B
Court referred the question of adequacy of the precautions/safeguards
prescribed by the appellant Board by its order dated 16.7.97 to the University
Department of Chemical Technology, (Autonomous), Matunga, Bombay, headed
by Prof. D.N. Bhowmick with the assistance of the National Geophysical
Research Institute, Hyderabad (NGRI). All the three reports opined that the C
proposed industry is a hazardous industry likely to affect the catchment area
of the two lakes.
Allowing the appeals, the Court
HELD : 1.1. Section 3(2)(v) of the Environment (Protection) Act, 1986 D
permits restriction specifying "areas" in which industrial operations or
processes shall not be carried out or shall be carried out subject to certain
safeguards. The notification issued by the State Government in GO 11 l dated
8.3.96 falls within the first part i.e. where industries shall not be carried out.
This is a total prohibition within I 0 KMs, of the two reservoirs. When such E
a prohibition was in force, the State Government could not obviously grant
any exemption to a specified industry like the respondent industry, located
within the 'area'. Nor was it permissible for the State to direct the appellantBoard to prescribe conditions for grant of NOC. [266-C, D[
1.2. From the provisions of the Water (Prevention) and Control of F
Pollution) Act, 1974, it is clear that in view of sub-sections 2(e), 2(k) read
with Sections 17 and 18 of the Water Act, the fundamental objective of the
statute is to provide clean drinking water to the citizens. Having laid down
the policy prohibiting location of any industry within I 0 KMs, under GO 111
dated 8.3.1996, the State could not have granted exemption to the respondent G
industry, nor to any other industry, from any part of the main GO 11 l 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 H
252
SUPRI ME COURT REPORTS [2000] SUPP. 5 S.C.R.
A violation of the Constitution of India. (266-E, F, GI
2.1. Exemption granted even to 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
B twin cities to whom drinking water is supplied from these lakes. Such an
order of exemption carelessly passed, ignoring the 'precautionary principle'
could be catastrophic. Therefore, the GO 153 dated 3. 7.97 granting exemption
must be held to be without statutory backing and also wholly arbitrary and
violative of Article 21. (266-H; 267-A, B]
c
2.2. In the light of the exhaustive scientific reports of the National
Environmental Appellate Authority, the Department of Chemical Technology,
Bombay University and the National Geophysical Research Institute, it cannot
be said that the two lakes will not be endangered. In respect of the drinking
water reservoirs, which cater to the needs of about 70 or 80 Iakhs population,
D the Court cannot rely upon a bare assurance that care will be taken in the
storage of serious hazardous materials. Nor can the Court rely on an
assurance that the hazardous substance would be effectively removed without
spillage. It is not humanly possible for any department to keep track whether
the pollutants are not spilled over. This is exactly where the 'precautionary
E principle' comes into play. The chance of an accident, within such close
proximity of the reservoirs cannot be ruled out, as pointed out in the Reports.
Thus, it is inferred that there is a very great risk that these highly hazardous
material could seep into the earth and reach the tanks, after passing through
the dolerite dykes. (271-C, D, F, G, HI
F
2.3. On the basis of the Scientific material obtained by this Court from
G
three highly reputed sources, this is certainly not a fit case for directing
grant of NOC by the Pollution Control Board. It is not also possible to hold
that the safeguards suggested by the appellant Board - pursuant to the
direction of the Government dated 3.7.97, will be adequate, in the light of the
Reports. In the facts of this case, the Board could not be directed to suggest
safeguards and there is every likelihood that safeguards could fail either due
to accident, as stated in the report, or due to human error. 1272-A-CI
3. The respondent industry ought not to have taken steps to obtain
approval of plans by the Gram Panchayat, nor for conversion of land use by
H the Collector, nor should it have proceeded with civil work and installation of
A.I'. POLL! "rION CC >NTROL BOARD-II 1·. PROF \1 V. NAYUDU
253
machinery. The action of the industry being contrary to the provisions of the A
Act, no equities can be claimed. The Appellate Authority erred in thinking
that because of the approval of plan by the Panchayat or conversion of land
use by the Collector or grant of letter of intent by the Central Government, a
case for applying principle of "promissory estoppel" applied to the facts of
this case. There could be no estoppel against the statute. The industry could B
not therefore seek an NOC after violating the policy decision of the
Government. [273-8, C, DI
4. Drinking water is of primary importance in any country. India is a
party to the Resolution of the UNO passed during the United Nations Water
Conference in 1977. Thus, the right to access to drinking water is C
fundamental to life and there is a duty on the State under Article 21 to provide
clean drinking water to its citizens. There is building up, in various countries,
a concept that right to healthy environment and to sustainable development
are fundamental human rights implicit in the right to 'life'. This Court was
the first to develop the concept of right to 'healthy environment' as part of the
right to "life" under Article 21 of our Constitution. This principle has now D
been adopted in various countries today. (255-C, D, G, H; 256-AI
Narmada Bachav Ando/an v. Union of India, [2000] 7 Scale 34 and
Bandhua Mukti Morcha v. Union of India, (1984] 3 SCC 161, referred to.
Portugal v. £.C. Council, 3 C.M.L.R. 331 (1997); Lopez Ostra v. Spain, E
303-C, Eur. Ct. H.R. (Ser.-A) (1994); Powell & Ravner v. U.K., 172 Eur. Ct.
H.R. (Ser.-A) Page 5 (1990); Yanomani Indians v. Brazil Inter-Amer, C.H.R.
7615 OEA/Ser.L.V./11/66 Doc. 10 rev. 1, (1985); Minors Opasa v. Department
of Environment and Natural Resources, 33 I.L.M. 173 (1994); Fundepub/ico
v. Mayer of Bugalagrande and Ors., [Constitutional Court of Columbia F
(17.6.92) and Wildlife Society of Southern Africa & Ors., v. Minister of
Environmental Affairs and Tourism of the Republic of South Africa and Ors., dt.
27.6.1996 (1996] 9 BCLR 1221 (Tk), (1996) SACLR LEXIS 30, referred to.
"Right to Healthy Environment" - Vol. 25 - (2000) Columbia Journal
of Environmental law by John Lee (P. 283), referred to.
G
5. Inasmuch as most of the statutes dealing with Environment are by
Parliament, the Law Commission could kindly consider the question of review
of the environmental laws and the need for constitution of Environmental
Courts with experts in environmental law, in addition to judicial members, in
the light of experience in other countries. (274-E, Fl
H
254
SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.
A
6. The State of Andhra Pradesh is directed to identify the industries
located within 10 K.M. radius of the two lakes and to take action in
consultation with the A.P. Pollution Control Board to prevent pollution to the
drinking water in the two reservoirs. The States and the Board shall not permit
any polluting industries within the IO KMs. radius. A report shall be
B submitted to this Court by the State of Andhra Pradesh in this behalf within
four months, in regard to the pollution or pollution potential of industries, if
any, existing within I 0 KMs. of the lakes. (275-A, BJ
c
D
A.P. Pollution Control Board (I) v. Prof M. V. Nayudu, (1999] 2 SCC
718, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 368-3 71 of
1999.
From the Judgment and Order dated 1.5.98 of the Andhra Pradesh High
Court in W.P. Nos. 17832, 16969, 18681/97 and 2215of1998.
WITH
Civil Appeal Nos. 372 and 373 of 1999.
R.N. Trivedi, Additional Solicitor Genera!, Nikhil Nayyar, Urmila Sirur,
E P.S. Narasimha, P. Sridhar, V.G. Pragasam, A. Subba Rao, Anil Kumar Tandale,
K. Ram Kumar, Ms. Sandhya Goswami, N . Ganpathy, H.K. Puri, Mahabir
Singh, Ms. Hemantika Wahi and Ms. Anu Sawhney for the appearing parties.
The Judgment of the Court was delivered by
M. JAGANNADHA RAO, J. On an earlier occasion, in this very case,
F this Court in A.P. Pollution Control Board (!) v. Prof M. V. Nayudu, [1999]
2 sec 718 (dated 27.1.I 999) referred to the 'precautionary principle' and the
new rule of 'burden of proof' in the matter of environmental pollution. This
Court in that judgment emphasised the need for scientific inputs before
adjudicating complicated issues of pollution to environment. The said approach
G of this Court was based upon contemporary trend in the adjudication of
environmental matters in various countries and was not intended to restrict
the powers of this Court under Article 21 of the Constitution of India to
safeguard environment from pollution.
Our efforts to get at the best scientific evidence on the issues involved
H in the case, have yielded satisfactory results in the sense that we have today
\
j
A.P. POLLUTION CONTROL BOARD-II v. PROF M V. NAYUDU [M.J RAO, JI 25)
greater confidence about the correctness of our conclusions and further that A
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
(Mis. 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 B
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."
c
Thus, the right to access to drinking water is fundamental to life and there D
is a duty on the State under Article 21 to provide clean drinking water to its
citizens.
Adverting to the above right declared in the aforesaid Resolution, in
Narmada Bachao Ando/an v. Union of India, (2000) 7 Scale 34 (at p.124),
Kirpal J observed:
E
"Water is the basic need for the survival of human beings and is
part of right of life and human rights as enshrined in Article 21 of the
Constitution of India ..... "
There is therefore need to take into account the right to a healthy p
environment along with the right to sustainable development and
balance them.
Competing human rights to healthy environment and sustainable
development:
There is building up, in various countries, a concept that right to
healthy environment and to sustainable development are fundamental human
rights implicit in the right to 'life'.
Our Supreme Court was one of the first Courts to develop the concept
G
of right to 'healthy environment' as part of the right to "life" und~r Article H
256
SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.
A 21 of our Constitution. See Bandhua Mukti Morcha v. Union of India, [ 1984]
3 SCC 161. This principle has now been adopted in various countries today.
In today's emerging jurisprudence, environmental rights which
encompass a group of collective rights are described as "third generation"
B rights. The "first generation" rights are generally political rights such as those
found in the International Convention on Civil & Political Rights while "second
generation" rights are social and economic rights as found in the International
Covenant on Economic, Social and Cultural Rights. ''Right to Healthy
Environment". (See Vol.25) 2000 Columbia Journal of Environmental Law by
John Lee P.283, at pp.293-294 fn.29)
c
The right to sustainable development has been declared by the UN
General Assembly to be an inalienable human right ( Declaration on the Right
to Development) (1986). The 1992 Rio Conference declared that Human beings
are at the centre of concerns for sustainable development. Human beings are
entitled to a healthy and productive life in harmony with nature. (Principle I).
D In order to achieve "sustainable development, environmental protection shall
constitute an integral part of development process and cannot be considered
in isolation of it". The 1997 Earth Summit meeting of I 00 nations in New York
reflected the above principles. The European Court of Justice, emphasised in
Portugal v. E. C. Council, the need to promote sustainable development while
E taking inio account the environment. (3 C.M.L.R.331) (I 997) (ibid Columbia
Journal of Environmental Law, p. 283.
In Lopez Ostra v. 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
F private and family life. Under Article 8 of the European Convention, everyone
1s guaranteed the right to respect for his private and family life. ( See also,
Powell & Rayner v. U.K., (172 Eur. Ct H.R. (Ser. A, p.5) (1990). The lnterAmerican Commission on Human Rights has found a similar linkage (Yanomani
Indians v. Brazil) ( Inter-Amer.C.H.R. 7615 OEA/Ser.L.V/11/66 Doc. JO rev. I
G (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 v. Department of Environment and
H Natural Resources (33, l.L.M. 173) (1994 ). The judgment was based on 'inter1
A. P POLLUTION CON1 ROL BOARD-II v. PROF M. V. NA YUDU [M.l RAO, J .] 257
generational responsibility'. In Fundepublico v. Mayor of Bugalagrande & A
Ors., the Constitutional Court of Columbia ( 17 .6.1992) held in favour of the
right to healthy environment as a fundamental human right and treated the
right as part of customary international law. The Court permitted popular
action mechanism. The Supreme Court of South Africa, in a recent case in
Wildlife Society of Southern Africa & Ors. v. Minister of Environmental
affairs and Tourism of the Republic of South Africa and Ors., (Dt.27.6.1996) B
(1996) 9 BCLR 1221 (Tk); 1996 SACLR LEXIS 30) dealt with the right to
healthy environment. About 60 nations since 1990 have recognised in their
constitutions a right to a healthy environment as a corollary duty to defend
the environment. ( Columbia Journal of Environmental Law, ibid PP.318-319).
Thus, the concept of a healthy environment as a part of the fundamental
right to life, developed by our Supreme Court, is finding acceptance in various
countries side by side with the right to development.
Events afier 27.1.99 judgment:
We shall now refer to the events subsequent to our order dated 27.1.99.
They are as follows:
c
D
The question is whether in the event of the seventh respondent being
permitted to establish its industry within 10 Kms. of the lakes -notwithstanding E
the Government's policy to the contrary and the refusal of the appellant Board
to grant NOC - there is likelihood of serious pollution to the drinking water
in these lakes. This Court in its judgment dated 27 .1.99 referred the said
question to the National Environmental Appellate Authority ( constituted
under the National Environmental Appellate Authority Act, 1997) for its
opinion. The said authority visited the site of the industry at Peddashpur F
village near Hyderabad and submitted a detailed and exhaustive report to this
Court, after receiving oral and documentary evidence. The Report went against
the seventh respondent industry. The industry filed objections to the said
Report.
When the matter was thereafter heard, the seventh respondent industry
relied upon an order passed by the appellant-Board on 16.7.97, suggesting
that if certain safeguards were provided by the industry to prevent pollution,
NOC could be granted. The said order had to be passed at one stage by the
Board because of the direction of the Government of Andhra Andhra contained
in an order granting exemption from the I 0 KM rule.
G
H
258
SUPREME COURT REPORTS (2000) SUPP. 5 S.C.R.
A
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
B 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
C Institute, Hyderabad (hereinafter called the 'NGRI').
D
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 ofNGRI- had gone against the 7th respondent
- industry, it again filed objections thereto.
We then finally heard learned Additional Solicitor General of India, Sri
R.N. Trivedi for the appellant Board and of Sri P.S. Narasimha for the writ
petitioner (respondent I) who supported the appellant and Sri A. Subba Rao,
learned counsel for the 7th respondent- industry. Thus, we have now the
E Report of the National Environmental Appellate Authority, the Report of Dr.
Bhowmick, (Bombay) and the Report of the National Geophysical Research
Institute, (NGRI) Hy4erabad.
Basic facts leading to the grant of exemption:
F
We may now refer to certain basic facts. The Ministry of Forests and
Environment, Union oflndia issued a Notification dated 27.9.88 listing various
industries as hazardous and included them in a 'Red' list. Item 37 of the said
list of hazardous industries is the industry which produces 'Vegetable oils
including solvent extracted oils'. The above notification was expressly stated
G to be issued by the Government of India in exercise of its powers vested
under the Water (Prevention and Control of Pollution) Act, 1974, the Air
(Prevention and Control of Pollution) Act, 1981 and the Water (Prevention
and Control of Pollution) Cess Act 1977 and the Environment (Protection)
Act, 1986, directing that whenever any industry sought consent from the
Pollution Control Boards, the said Boards, "while processing the consent
H application, should decide, keeping in view the pollution - causing potential
AP POLLCTION CONTROL BOARD-II v. PROF MV NA YUDU [Ml RAO, J.) 259
of the industry, as to which category the industry belongs."
A
Consequent to the directive of the Union Government the State of
Andhra Pradesh initially issued notification in GO 192 dated 31.3.94 (Municipal
Administration). Therein, the State Government relied upon the interim report
of an Expert Committee of the Hyderabad Metropolitan Water Supply and
Sewerage Board, called HMWSSB), and prohibited industries being located B
within 10 K.M. of the two reservoirs.
ln spite of the prohibition contained in GO 192 dated 31.3.94 prohibiting
industries within I 0 KM. of the reservoirs, the seventh respondent industry
purchased land of 12 acres on 26.9.95 in Peddashpur village situated on the
outskirts of Hyderabad, within I 0 KM of the reservoirs. Initially, the industry C
applied for consent from the appellant Board in November 1995, through the
Industries Department of the State Government. The State of 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 I 0 K.M. rule, subject
to the industry obtaining NOC from the appellant Board. On 9.1.96, Government D
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 E
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 F
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. It then proceeded to execute
various civil works in spite of the I 0 k.m. prohibition rule.
Thereafter, the Industry proceeded further with construction of civil G
works and then applied to the appellant Board on 7.4.97 under Section 25 of
the Water Act for permission to establish the factory. One of the bye-products
mentioned in the said application was:
"Glycerine, spent bleaching earth and carbon and spent nickel
catalysts".
H
260
SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.
A
On 1.6.97, the appellant Board wrote to the Commissioner oflndustries
that the industry would be generating 'nickel' catalyst and other pollutants
which could find their way to the lakes either directly or indirectly. Even the
solid waste such as activated carbon bleaching earth and sodium sulphate
might find entry during rainy season from the storage yard resulting in
B polluting to lakes.
c
In spite of the said opinion of the appellant Board, the Commissioner
of industries, in his letter dated 6.6.97 stated that there would be no liquid
effluent or acidic fumes and that the limited aqueous effluent was totally biodegradable and the solid wastes were disposable,
On 25.6.97, the appellant Board once again rejected the application,of
the industry inasmuch as the said industry was in the 'Red' list annexed to
the Notification dated 1.2.89 of the Ministry of Forests & Environment,
Government of India.
D
Confronted with the above problems, the industry approached the State
Government on 24.6.96 seeking exemption from the 10 k.m. rule contained in
G0.111 dated 8.3.96 on the ground that it had invested huge amounts to
establish the industry and that it had almost completed the civil works, and
had purchased machinery and installed the same. The State Government, in
spite of the prohibitory directions issued by it earlier, issued GO. 153 dated
E 3.7.97 granting exemption from GO 111 dated 8.3.96 on the ground that the
Government of India had issued letter of intent on 9.1.96, that the Commissioner
of Industries, in his letter dated 6.6.97 opined that there would be no liquid
effluents and that the solid wastes would be disposable. Government then
granted exemption stating as follows:
F
"The Government had considered the matter in its entirety and feel
that if proper control over treatment of aqueous and solid wastes is
exercised, then there can be no objection to setting up of the industry
under reference at the proposed site".
G 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
H modifying GO 153 dated 3.7.97 and clarifying that the exemption granted did
AP. POLLUTION CONTROL BOARD-111•. PROF M.V. NA YU DU [M.J. RAO, J.I 26 J
not relate to para (I) of GO 111 but related only to para 3(f)), that para being A
the one which related to the I 0 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
B
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 C
dated 8.3.96. It also referred to the fact that earlier the Board had already
rejected the NOC on 24.5.96 at the pre-scrutiny level.
Aggrieved by the order of rejection dated 30.7.97 of the appellant
Board, the seventh-respondent industry filed appeal under Section 28 of the
Water Act, 1974 before the appellate authority. For the first time, in the said D
appeal, it filed an affidavit of Prof. M. Santappa, ( a former Vice Chancellor)
who was the then Scientific Officer of the Tamil Nadu Pollution Control Board.
The said opinion was in favour of the industry.
By order dated 5.1.98, the appellate authority (presided over by a retired
Judge of the A.P. High Court) allowed the appeal and set aside the orders of E
the Board. It held that the categorisation into 'Red' as made by the Government
of India on l .2.89 was applicable only to the industries set up in the Doon
valley. It relied on the affidavit of Prof. M. Santappa to the affect that the
industry had adopted the latest technology which was eco-friendly and that
the Chairman of the Board of Directors of the industry was Dr. Siddhu,
formerly Director General of CSIR, that the technology was obtained by the F
industry from the Indian Institute of Chemical Technology, Hyderabad (IICT)
which issued a certificate that the industry will not discharge any acidic
effluents and solid wastes, and that they could be collected in M.S. Drums
mechanically. The appellate authority referred to Dr. Santappa's report which
stated that none of the bye products would fall on ground and that the G
conditions laid down by the Technical Committee of the appellant Board on
16.7.97 would be fulfilled. There would be no liquid effluents or acidic fumes
as certified by !ICT. The nearest spread would be 8.5 Kms. There was no
possibility of seepage into the reservoirs. The appellate authority also held
that principle of 'promissory estoppel' applied inasmuch as permission for
change of land-use was given and permission to erect factory was also given. H
262
SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.
A It was brought to the notice of the said appellate authority that under the
Water Act, long before the State Government issued the prohibiting notification,
there was an earlier categorisation dated 27.9.88 made by the Government of
India showing 'Vanaspati Hydegenerated vegetable oils for industrial purposes'
in the red category. Even so, the appellate authority allowed the appeal of the
B 7th respondent filed under Section 28 of the Water (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
ofSPEQL (WP. 16969/97 already referred to) and the W.P. 11803/98 filed by
C the respondent-industry seeking mandamus <1gainst the appellant Board for
grant of NOC, were all disposed of by the High Court on 1.5.98, upholding
the orders of the ~ppelfate authority and directing grant of NOC by the
appellant.
The 'present appeals have arisen out of the said judgment. We first
D 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 UniversityDepartment of Chemical Technology, Bombay and the latter submitted its
E Report dated 16.8.2000 together with Report of National Geophysical Research
Institute, Hyderabad of June, 2000.
The following points arise for consideration:-
(I) Whether, in view of Sub-section 2(b), 3(2) and 5 of the Environment
F (Protection) Act, 1986 and the notification issued by the Central Government
on 27 .9 .88 and the further notification issued by the State Government on
31.3.94 and 8.3.96 as delegate of the Central Government, totally prohibiting
location of following industries in an 'area', it was permissible for the State
Government to issue an exemption on 3.7.97 for an individual hazardous
G industry within the area, even if it be by way of asking the industry to provide
safeguards?
(2) Whether, in view of Sub-sections 2(e), 2(k), 17, 18 and 19 of the
Water (Prevention and Control of Pollution) Act, 1974, ifthe State Government
had issued notification totally prohibiting polluting industries in the area, and
H if the State Pollution Board had rejected the request for location of a polluting
A.P. POLLUTION CONTROL BOARD-II 1•. PROF MV. NAYUDU [M.J. RAO. J.] 263
industry within the area, it was permissible for the Government to grant A
exemption for a single industry within the prohibited area?
(3) Whether in the light of the Reports of (a) the National Environment
Appellate Authority, New Delhi, (b) the University Department of Chemical
Technology, Bombay and (c) the National Geophysical Research Institute,
. Hyderabad, the 7th respondent industry could claim exemption from the 10 B
KM. prohibition and whether such an exemption could have been granted?
(4) Whether in spite of the prohibition contained in Section 25 of the
Water (Prevention & Control of Pollution ) Act, 1974 that industries should
riot be established without consent of the appellant-Board, the seventh
respondent could have proceeded with establishing the industry and could C
plead equities or rely on the principle of promissory estoppel?
(5) On the question of establishment of 'Environmental Courts', to what
extent, the States and Union Territories have taken steps to have environmental
scientists/experts in the various environmental tribunal or appellate bodies, as D
directed in the earlier judgment?
(6) To what relief?
Points I and 2:
It is necessary first to refer to the following provision of the Environment E
(Protection) Act, 1986. Under Section 2(b), 'environmental pollution' means
any solid, liquid or gaseous substance present in such concentration may be,
or tend to be, injurious to environment. Section 2(e) defines 'hazardous
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 F
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. Subclause (2) permits measures to be taken ( see clause (v)) by imposing
"restriction of areas in which industries, operations or processes or G
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 H
264
SUPREME COURT REPORTS [2000] SUPP. 5 S.C.R.
A Section 5 clarifies that the said power to issue directions includes the power
to direct:
B
"(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 (~inistry of
Forests and Environment) was issued expressly in exercise of powers of the
Central Government under the Environment (Protection) Act, 1986 the Water
C (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and
Control of Pollution) Act, 1981. It stated that industries were being classified
in lists 'Red, Orange and Green' and that "when an industry seeks consent
from the Pollution Control Board, as required by the above Acts, the Board
which processing the consent application should decide, keeping in view the
D pollution causing potential of the industry, as to which category, the
'environmental safeguards' should be determined". This is a general
notification. Item 37 in the red list refers to an industry producing 'vegetable
oils including solvent extracted oil'. No doubt, the subsequent notification
dated 1.2.1989 as pointed out by the appellate authority under Section 28
related to red category industries for the Doon Valley and was issued under
E Section 3(2)(v) of the Environment (Protection) Act, 1986 and Rule 5(3 )( d) of
the Environment (Protection) Rules, 1986 for the purpose of restricting industrial
units in Doon Valley. Even assuming that notification dated 1.2.99 did not
apply to Andhra Pradesh, the notification dated 27.9.88 and the State
Government's notification in GO 111 dated 8.3.96 are sufficient for the present
F purposes.
As pointed out in para 2( c) of the Rejoinder affidavit of the appellantBoard, the power to issue directions under Section 5 of the Environment
(Protection) Act, 1986 and its Environment (Protection) Rules, 1986 were
amended in 1988 (S.O. 152-E) were delegated to the State of Andhra Pradesh
G in 1988 in S.O. 152-E.