By Sneha Rasam ~ KES Law College, Mumbai University.
Drinking water is of primary importance to all living beings. The United Nations resolution in the Water Conference, 1977 stated, “All people, regardless of their stage of development and their social and economic status, have the right to access the same amount of drinking water and their basic needs.” The concepts of right to wholesome environment and sustainable development have come to be recognised as fundamental human rights that are implicit in the right to life.
Water pollution is a major issue in India. A study conducted by the World Health Organization (WHO) in 1992 reported that out of India’s 3,119 towns and cities, only 209 have partial sewage treatment facilities, and only eight have full wastewater treatment facilities. A 1995 report claimed that 114 Indian cities were dumping untreated sewage and partially cremated bodies directly into the Ganges. The lack of toilets and sanitation facilities causes open defecation in rural areas of India, which is a significant source of surface water pollution.
Facts of the Case
The respondent industry decided to set up a vegetable oil factory in the village of Peddashpur in the state of Andhra Pradesh for which the seventh respondent (M/s. Surana Oils & Derivatives (India) Ltd.) bought the land. The land was within a radius of 10 Kms from two major reservoirs that provided drinking water for approximately five million people. The Ministry of Forest and Environment, Government of India, notified a list of hazardous industries, which included the industry producing vegetable oil, in the exercise of its power vested under the Water (Prevention and Control of Pollution) Act, 1974 and other Acts. The Central Government notification stated that an industry that wished to set up a factory had to seek consent from the respective Pollution Control Board for which a ‘No Objection Certificate’ (hereinafter referred to as NOC) was to be issued ensuring that the industry does not cause any harm or pollution to the environment.
As per the directions of the Union Government, the state of Andhra Pradesh issued a notification and prohibited industries from setting up factories within 10 Kms from the reservoirs. The industry applied for a NOC in November 1995 to the appellant Board in the state of Andhra Pradesh. The state of Andhra Pradesh’s wrote to the Government of India seeking relaxation to the 10 Km rule. The Government of India responded by stating that the industry should get a NOC from the Environment Authority of the State Government.
The Pollution Control Board in state of Andhra Pradesh rejected the application upholding the 10 K.M. rule and stated that the industry came under the ‘Red List’. Even though the Board rejected the application, the respondents obtained permission from the Gram Panchayat for establishing the factory. Although the Commissioner of Industries suggested the industry to choose an alternative site, the industry obtained permission to change the nature of land use from agricultural to non-agricultural land and subsequently proceeded with their work. Thereafter, the industry applied to the appellate Board under section 25 of the Water Act for a NOC from the Board. The appellate Board observed that the Nickel Catalysts and other the pollutants were likely to get discharged directly or indirectly into the lake and hence, rejected the application. The industry approached the State Government once again, seeking an exemption to the 10 K.M. rule, on the ground that it had invested huge capital in establishing the industry. The State Government granted an exemption and directed the industry to have proper waste treatment mechanisms in place. This exemption was challenged by the Society of Preservation of Environment and Quality Life (SPEQL), which obtained a stay order from the Court and the NOC granted to the industry was quashed.
The industry once again appealed under section 28 of the Water Act before the Appellate Authority (constituted under the National Environmental Appellate Authority Act, 1997) along with an affidavit issued by Prof. M. Santappa who was the scientific officer of Tamil Nadu Pollution Board in their favour. The appellate authority set aside the orders of the Board and directed the Board to issue NOC to the appellant. The findings of the appellate Board stated that the ‘Red List’ made by the Government of India was only applicable to the industries that were set up in the Doon Valley.
Subsequently, a PIL was filed for quashing the previous order of the appellate authority. The High Court dismissed the writ petition upholding the decision of the appellate authority and directed the grant of NOC to the appellant. The same was challenged before the Supreme Court in this case.
Summary of Arguments
The petitioners represented by the Additional Solicitor General, Sri R.N. Trivedi referred to Section 25(1) of the Water Act and submitted that it was for the respondent industry to establish that there would be no water pollution. The Court observed that Sri Trivedi was right in contending that the respondent industry ought not to have taken approval from the Gram Panchayat, nor should have applied for the conversion of land use. The act of the industry was contrary to the provisions of the Water Act, and hence, no equities could be claimed. The Court also observed that the Appellate Authority erred in thinking that the approval of the plan by the Panchayat, or conversion of land use by the Collector or grant of letter of intent by the Central Government was a case for applying the principle of “promissory estoppel”. The industry could not, therefore, seek a NOC after violating the policy decision of the Government.
The respondents submitted that in an earlier judgement the Court held that the principle of promissory estoppel applied to the appellate authority on the ground that once a permission for change of land use was granted, the appellant Board could not refuse NOC. The counsel for the seventh respondent referred to the existence of several industries within the 10 Km radius of the two reservoirs, which caused considerable pollution.
- Reference to Reports
The three expert bodies, which are
a) The National Environmental Appellate Authority, New Delhi
b) The University Department of Chemical Technology (Autonomous), Matunga, Bombay
c) The National Geophysical Research Institute, Tarnaka, Hyderabad submitted their reports to the appellant Board of the State of Andhra Pradesh.
The reports observed that granting the NOC in favour of the industry was arbitrary as it violated several statutes. In addition to this, it was observed that the permission granted to the industries in the Red List was hazardous to water reservoirs and had dangerous implications on the public health and safety of those dependent on the drinking water from the reservoirs. The report also stated that a mere assurance with respect to care and caution would not be sufficient, as there was a likeliness of occurrence of accidents.
The Court held that the authorities could not grant a NOC to set up industries within 10 K.M. and set aside the judgement delivered by the High Court. The Court directed the Government of Andhra Pradesh to identify other industries within 10 Km of the reservoirs and take appropriate action to prevent pollution to the drinking water in these two reservoirs. The Court held that the Board shall not permit any polluting industry within 10 Km area and asked them to submit a report within four months with respect to the industries existing within 10 Km of reservoirs that potentially caused pollution. The Court also observed that the principle of promissory estoppels did not apply to the present case.
The Court recommended the Law Commission of India to consider a review of the environmental laws existing in the country. The Court also recommended the need for establishing environmental courts consisting of experts in environmental law and members of the Judiciary.
Analysis and Conclusion
Human beings are entitled to a healthy and productive life in harmony with nature. The right to sustainable development is declared as an inalienable human right in the Declaration on the Right to Development, 1986 by the UN General Assembly. The 1992 Rio Conference declared, “Human beings are at the centre of concerns for sustainable development.” Thus, access to drinking water is an essential element for life, and it is the duty of the state under Article 21 to provide clean drinking water to its citizens. In Narmada Bachao Andolan vs Union of India, Kirpal J observed, “Water is the basic need for the survival of human beings and is part of the right of life and human rights as enshrined in Article 21 of the Constitution of India.”
The right to a healthy environment, along with the right to sustainable development, must be balanced. As observed by the Supreme Court in this case, there is a need to set up environmental courts in order to ensure speedy disposal of environment litigations. It is also necessary to take measures that will help reduce environmental degradation to create specific criteria for such hazardous industries.
 Global Recycling, India’s Sewage Treatment Policy: Between Dysfunctionality and Multi-Billion Dollar Opportunity, (2020). https://globalrecycling.info/archives/3814#:~:text=In%201992%2C%20a%20World’s%20Health,directly%20into%20the%20Ganges%20River
 PTI, National Geographic Society to launch expedition to study plastic pollution in Ganga, Outlook, (May 6, 2019). https://www.outlookindia.com/newsscroll/national-geographic-society-to-launch-expedition-to-study-plastic-pollution-in-ganga/1529645
 WHO, “Progress on drinking water and sanitation: Joint Monitoring Programme”, WHO/UNICEF Joint Monitoring Report, (2012). https://www.who.int/water_sanitation_health/monitoring/jmp2012/fast_facts/en/
 W.P. 16969/97
  5 SCR 249