Case Summary: A.P. Pollution Control Board v. Prof. M.V. Nayudu & Ors.

Introduction

The decision of the Supreme Court of India in A.P. Pollution Control Board v. Prof. M.V. Nayudu & Ors.¹ is often described as a watershed case in relation to environmental jurisprudence in India. The case raised questions relating to the inquiry that courts must look to carry-out when balancing industrial development with protection of the environment (specifically taking into account that the resource in dispute was twin drinking water reservoirs) when natural resources are scarce. The case also had provided the court with the opportunity to consider suitably, the limits of court judgement regarding technical matters and referenced the need to provide specialized environmental tribunals.

The judgement combined some of cited and significant legal doctrines of Indian environmental law: the precautionary principle, the polluter pays principle, the doctrine of absolute liability, and the principle of intergenerational equity. Legal doctrines which had previously developed in other case law were now being directly utilized by the court, when assessing the demise of two drinking reservoir sources of drinking water which supplied millions of people in Hyderabad and Secunderabad.

The conclusion whereby the said ordinary courts could equally hold and however are ill-equipped in technical matters for dealing with extrinsic science claims, was perhaps the predicate for establishing the National Green Tribunal in 2010. Nayudu will not only be remembered for resolving the immediate problem in dispute, but will be remembered for the reform of environmental law which ensued through it lawyer’s work since that judgement.

Facts of the Case

The seventh respondent M/s Surana Oils & Derivatives Ltd., commenced the process to establish a vegetable oil industry in Peddashpur village of Andhra Pradesh. The location of the site was within 10 kms of the Himayat Sagar and Osman Sagar lakes, which were the reservoirs supplying drinking water for almost five million people in Hyderabad and Secunderabad.² 

In May 1988, the Ministry of Environment and Forests issued a notification declaring that vegetable oil industries are hazardous and hence belonging to a “Red” category.³ The Andhra Pradesh government issued GO Ms.192 (1994) and GO Ms. 111 (1996) after reports by expert committees recommended prohibition against polluting industries within 10 kilometers of both reservoirs.⁴

Despite these restrictions, in 1995, the respondent purchased land, submitted to the A.P. Pollution Control Board (APPCB) an application for a No Objection Certificate (NOC), and commenced civil works it had not received approval for. The Board stated the application could not be approved because the industry was hazardous in nature and had the potential to discharge dangerous waste, including nickel catalysts and sulphur dioxide as well as nitrogen oxides and oily discharge into the lakes.⁵

The respondent appealed under Section 28 of the Water (Prevention and Control of Pollution) Act, 1974, and the Appellate Authority reversed the Board’s decision and directed the grant of a NOC.⁶ The decision was challenged by the Society for the Preservation of Environment and Quality of Life (SPEQL) and other public interest bodies but the Andhra Pradesh High Court agreed with the Authority’s decision and directed that the Board grant consent. The APPCB was aggrieved and sought the Supreme Court’s jurisdiction under Article 136 of the Constitution.⁷

Issues for Determination

1. Was the respondent’s industry hazardous with regard to its products, effluents, and location?
2. Was the exemption to the original 10 km restriction around the reservoirs valid?
3. Did the Appellate Authority err in issuing the NOC, when it was operating under restrictions provided by the statute?
4. How would courts deal with highly technical and scientific questions of fact, particularly in environmental disputes?

Submissions by the Parties

Appellant to the Appellate Authority (APPCB)

• The industry was within the Red category of hazardous industries as outlined under the grievances notifications from the MOEF.⁸
• As the area was still within 10 km of drinking water reservoirs, the facility’s location ran counter to the State government orders.
• Establishing the plant posed a risk for releasing hazardous wastes – for example, nickel was classified as hazardous waste under the Hazardous Waste Rules, 1989, sulphur dioxide and nitrogen oxides from combustion of fuels.⁹
• Under Section 25(1) of the Water Act 1974, the respondent had to request prior consent to establish or operate but failed to comply.
• Because of the precautionary principle even a possibility of harm to the (water) sources was enough to justify a prohibition.

Respondent (Industry)

• Asserted that they had adopted the state of the art eco-friendly technology duly certified by The Indian Institute of Chemical Technology and that the technology was verified by affidavits from experts like Prof. M.Santappa of the Tamil Nadu Pollution Control Board held that no harmful effluents would come out of the process.10
• Said they incurred very large expenses already, equitable considerations should be taken into account.
• Said they can invoke promissory estoppel also because the other government authorities have imposed conditions and granted clearances; hence could bind the APPCB.11

Doctrines Applied and Discussed

1. The Precautionary Principle

The Court held that the precautionary principle is part of Indian law as the Vellore Citizens’ Welfare Forum v. Union of India12 recognized it. The precautionary principle states that when it is uncertain are the scientific evidence is as regards any ecologically harmful activities on the environment, the burden would lie on the industry to prove that it will not harm the environment.

The Court emphasized that where drinking water is concerned, one should err on the side of caution, and even a remote chance that it could harm drinking water must elicit precaution. To wait until there is proof of scientific certainty would mean irreparable harm could occur. Thus, the precautionary principle justifies the imposition of prohibitive conditions, even before one is certain that harm has occurred.

2. Polluter Pays Principle

The Court affirmed the polluter pays principle that requires industries to pay for prevention, control, and clean-up of pollution.¹³ It avoids passing the burden of environmental degradation onto the community or the government.

This principle has been clearly articulated in Indian Council for Enviro-Legal Action v. Union of India,¹⁴ where it was held that an industry must pay for both restoring the environment and compensating victims of pollution.

3. Absolute Liability

The Court also relied upon the doctrine of absolute liability found in M.C. Mehta v. Union of India (the Oleum Gas Leak case).¹⁵ Where a hazardous industry causes damage, the strict liability imposed does not depend on whether there was negligence on the part of the are hazardous strict liability. 

In this instance, though the respondent employed excellent technology in producing a product, he was dealing with hazardous materials and the Court imposed absolute liability without questioning to the technology.

4. Inter-generational equity. 

The Court followed the principle of inter-generational equity and held that the natural resources of India, with relevant to the issue of water in this case, will equal and are being held in trust for the next generations. This principle’s foundations were already relied upon by the Court in State of Himachal Pradesh v. Ganesh Wood Products.¹⁶

Articles 48-A and 51A(g) of the Constitution reinforce the obligation of the State and citizens to protect and improve the environment. If hazardous industries are allowed to operate adjacent to reservoirs, it would forever harm the right of both present and future generations to access clean water.

Judgment of the Supreme Court

The Supreme Court (S.B. Majmudar and M. Jagannadha Rao, JJ) issued their judgment on 27 January 1999:

1. The Court overturned the order of the High Court and held that the APPCB was justified in refusing to grant the NOC.¹⁷
2. The 10 km restriction was held to be a legitimate precaution, and exemptions from the restriction were held to be unsustainable.
3. The Court directed that the matter be referred to the National Environmental Appellate Authority (NEAA) under the 1997 Act for comprehensive technical evaluation. Until further examination, the respondent was prohibited from commencing operations at the proposed site.¹⁸
4. The Court encouraged the establishment of specialised environmental courts/tribunals with judges and experts to decide complicated scientific issues.¹⁹

Significance and examination

1. Expansion of Article 21

The court, emphasized that the prohibition on deprivation of life found in article 21, also includes the right to eat or drink water in a clean condition or in a pollution free environment. The court relied on Subhash Kumar v. State of Bihar20 for this interpretation as the court stated that a right to life includes a right to enjoy pollution free water and air.

2. Preference for the protection of the Environment

The court found in the past two decisions, whilst stating, the respondent had not been indecent; that the right to health and the safety of millions could not be replaced by an argument of investment into a regional industry based on the precedent of risk assessment.

3. Courts Recognition of Scientific Limitations in Courts

The court quickly acknowledged that in reality generalist courts were ill-equipped to assess scientific evidence. The court relied on comparisons from the United Kingdom and the United States in recognising the need for the science to be assessed for evidential reliability. This recognition provided the epistemological base for trial in establishing specialist tribunals, eventually realised in the National Green Tribunal (2010).

4. Consolidation of Environmental Doctrines

The decision provided important consolidation of the four distinct doctrines of Indian environmental law; precautionary principle, polluter pays, absolute liability, and inter-generational equity. The development of Indian environmental jurisprudence rests upon these four doctrines today. 

5. Institutional Reform

By advocating for specialist tribunals, the court was able to not only conclude the matter, but to also direct the future of environmental law adjudication in India.

Conclusion

A.P. Pollution Control Board v. M.V. Nayudu is one of the most significant decisions in Indian environmental law, reshaping the relationship between development as a societal goal and the goals of ecology in Indian society. Thus it made clear that economic goals that are associated with development cannot replace with the right to clean water and a clean environment. 

The application of the precautionary principle, polluter-pays, absolute liability and intergenerational equity by the Court gave constitutional life to these doctrines. Its recognition of the limits of judicial intervention in matters requiring technical expertise embraced form a much-needed basis for institutional reform, such as the National Green Tribunal. 

Finally, this case shows that environmental law pertains to protecting not only nature, but that nature is an integral part of fundamental human rights, for which justice must be afforded for the benefit of generations yet to come, and as such a practice that regards such a time as next.

References

1. A.P. Pollution Control Board v. Prof. M.V. Nayudu & Ors. (1999) 2 SCC 718, AIR 1999 SC 812.
2. Case facts discussed in Harsh Khatri, ‘Case Comment: A.P. Pollution Control Board v. Prof. M.V. Nayudu’ (2022) Jus Corpus Law Journal 63
3. Ministry of Environment and Forests Notification No. J.20011/15/88-IA (27 September 1988).
4. Government of Andhra Pradesh, GO Ms. 192 (31 March 1994); GO Ms. 111 (8 March 1996).
5. APPCB, Rejection Order, cited in Nayudu (n 1).
6. Water (Prevention and Control of Pollution) Act 1974, s 28.
7. Constitution of India 1950, art 136.
8. Nayudu (n 1) 722.
9. Hazardous Waste (Management and Handling) Rules 1989.
10. Affidavit of Prof. M. Santappa, cited in Case Analysis, Law Foyer (2023) .
11. Case analysis in Anushri Joshii, ‘Andhra Pradesh Pollution Control Board v. Prof. M.V. Nayudu’ (Legal Service India, 2022) .
12. Vellore Citizens’ Welfare Forum v. Union of India AIR 1996 SC 2715.
13. Nayudu (n 1) 739.
14. Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC 212.
15. M.C. Mehta v. Union of India (Oleum Gas Leak) 1987 SCR (1) 819.
16. State of Himachal Pradesh v. Ganesh Wood Products (1995) 6 SCC 363.
17. Nayudu (n 1) 744.
18. National Environmental Appellate Authority Act 1997, s 11.
19. Nayudu (n 1) 745.
20. Subhash Kumar v. State of Bihar (1991) 1 SCC 598.