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CASE NO.: Writ Petition (civil)  657 of 1995

PETITIONER: Research Foundation For Science Technology and Natural Resources Policy

RESPONDENT: Union of India & Anr.

DATE OF JUDGMENT: 05/01/2005

BENCH: Y.K. Sabharwal & S.H. Kapadia

JUDGMENT: JUDGMENT

[With SLP (C) No.16175 of 1997 and Civil Appeal No.7660 of 1997]

Y.K.Sabharwal, J

       Considering the alarming situation created by dumping of hazardous  waste, its generation and serious and irreversible damage as a result  thereof to the environment, flora and fauna, and also having regard to the  magnitude of the problem as a result of failure of the authorities to  appreciate the gravity of situation and the need for prompt measures being  taken to prevent serious and adverse consequences, a High Powered  Committee (HPC) was constituted by this Court with Prof.M.G.K. Menon as  its Chairman, in terms of order dated 30th October, 1997.  The Committee  comprised of experts from different disciplines and fields and was required  to examine all matters in depth relating to hazardous waste.         On consideration of the detailed reports submitted by the HPC  various directions have been issued by this Court from time to time.   Presently, we are concerned with the presence of hazardous waste oil in  133 containers lying at  Nhava Sheva Port as noticed by HPC.  On the  directions of this Court, the oil contained in the said 133 containers was  sent for laboratory test to determine whether same is hazardous waste oil  or not.  It has been found to be hazardous waste.         On consideration of report of HPC, the result of laboratory test and  entire material on record, this Court came to the prima facie conclusion  that importers illegally imported waste oil in 133 containers in the garb of  lubricating oil. In terms of the order dated 25th September, 2003, notices  were directed to be issued to 15 importers who imported the said  consignment as also to the Commissioner of Customs.  The importers  were directed to show cause why the consignment shall not be ordered to  be re-exported or destroyed at their cost.  Since, the Ministry of  Environment and Forests had spent a sum of Rs.6.35 lakhs on the  laboratory tests, the importers were also required to show cause why the  said amount be not recovered from them and why all of them shall not be  directed to make payment of compensation  on polluter pays principle and  other action taken against them.         The affidavits showing cause were filed by the importers.  During the  course of hearing, one of the contentions urged on behalf of the importers  was that in respect of consignments in question, adjudicating proceedings  were pending before Commissioner of Customs, Mumbai and this Court  may, therefore, defer the decision on the aspect of re-export or destruction  of the goods.  In the order dated 11th March, 2004, it was observed that for  the purpose of present proceedings, it is strictly not necessary to await the  final decision of adjudication proceedings but a report from the  Commissioner of Customs may assist the court in deciding the aspects  indicated in the order dated 25th September, 2003.  In this view, the  Commissioner of Customs was directed to sent a report to this Court on  the question whether the consignment in issue is waste oil within the

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meaning of the term ’waste oil’ as per Basel Convention or Hazardous  Waste Rules, 1989 as amended in the year 2000 and/or as amended in  the year 2003 also having regard to the relevant notifications issued on this  aspect.  The Commissioner of Customs was directed to give reasonable  opportunity to the importers to put forth their viewpoint before him while  examining the matter and was further directed to associate the Monitoring  Committee that was constituted in terms of orders dated 14th October,  2003 reported in 2003 (9) SCALE 303.  The question whether any further  testing is required to be done as claimed by the importers was left to be  decided by the Commissioner in consultation with the Monitoring  Committee.         Detailed reports have been filed by Commissioner of Customs  (Imports), Mumbai and the Monitoring Committee.  We have perused the  relevant material including those reports and have heard learned counsel  for the petitioner, learned Additional Solicitor General appearing for the  Ministry of Environment and Forests as also learned counsel appearing for  the Commissioner of Customs and other learned counsel representing the  importers.  It deserves to be noted that the question to be determined in  these proceedings is limited to the environment issue.  The issue is in  regard to the appropriate directions for dealing with the consignments in  question, having regard to the precautionary principle and polluter pays  principle.  The main question is whether directions shall be issued for the  destruction of the consignments with a view to protect the environment  and, if not, in what other manner the consignments may be dealt with.         The report of the Commissioner of Customs sets out a brief history  of the case, history of various Conventions and Laws formulated thereupon  from time to time, correlating the same to the various test findings.         The brief history, inter alia, states that :     

"In the month of August-September 2000, the  Central Intelligence Unit, New Custom House,  Mumbai developed intelligence that large  volumes of Furnace Oil were to be imported as  containerized cargo, at the Jawaharlal Nehru Port  at undervalued prices.  Accordingly the Central  Intelligence Unit maintained a discreet watch at  such consignments of Furnace Oil imported at JN  Port.  Emphasis was laid on Furnace oil stuffed in  containers, as the same was quite unusual.   Furnace Oil is basically imported in bulk on  account of its large volumetric requirements by  the industry and its relatively low value makes its  import as containerized cargo economically  unviable unless the value is suppressed, or some  other mis-declaration was restored to, to offset  the increased cost of packing and transportation  in containers.  True to the intelligence gathered, a  large number of consignments of Furnace oil,  packed in containers arrived at JN port in Aug- Sept and the same were detained for further  investigation.  In all these cases the declared  prices were in the range of US$ 90 to 125 per MT  as against the erstwhile international price of US$  150, when imported in bulk.

During the course of the investigation,  samples were sent to the departmental laboratory  for conducting tests.  The standard reference  parameters available pertained to those of Fuel  Oil under BIS 1593-1982.  Under these standards  certain characteristics like Acidity, Ash content,  Flash point, Kinematic viscosity, Sulphur content  and Water content for Fuel oils have been  prescribed by the Bureau of Indian Standards and  depending on the specifications the fuel oils get

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divided into four grades.  It is pertinent to note  that these standards do not define waste oil or  hazardous wastes.

Initial testing of samples, by the Custom  House Laboratory, drawn from some of the  consignments indicated that the goods were not  Furnace oil.  The Laboratory, however, could not  categorically state whether the samples were  used/waste oil, as they did not have the  standards/specifications of used/waste oil.   Inquiries made with I.O.C. and H.P.C.L also  revealed that though they could test and report  whether the oil was conforming to the standards  of Fuel/Furnace oil but they were not in a position  to state whether the same were used/waste oil.   As categorical test reports were not forthcoming it  was decided to get the samples tested and an  opinion obtained from the Central Revenue  Control Laboratory (CRCL), New Delhi.  Fourteen  samples, pertaining to Vidya Chemical  Corporation, PCS Petrochem, Shiv Priya  Overseas, Royal Implex, Eleven Star Escon and  Valley International, were accordingly forwarded  to CRCL for testing and their opinion on  24.08.2000.  The test results forwarded by the  CRCL in all the 14 samples indicated that none of  the samples tallied with the specifications of  Furnace Oil and all were off specification material  i.e. waste oil.  Thereafter the CIU seized all the  consignments involving 158 containers.  One  consignment comprising of 25 containers was  conditionally released on execution of Bank  Guarantee for the differential Duty.  Thus a total  of 133 containers were left. \005.. \005\005. \005\005 \005.. \005\005 \005.. \005\005.\005\005\005\005\005\005\005 \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005.. On 5.10.2001 the MPCB forwarded a final  report from the IIP to the Custom House wherein  it was stated that the halogen content tests were  done at the Shriram Institute of Industrial  Research (SIIR), New Delhi and the PCB content  tests were done at the National Institute of  Oceanography, Goa.  The report concluded that  all the 20 samples sent to the IIP were found to  be hazardous.  In all these cases, where SCNs  had earlier been issued, addendums were issued  afresh keeping in view the fact that since  hazardous wastes imported in violation of the  provisions of the Environment (Protection) Act,  1986 had to be re-exported or dealt with as  provided for in the Hazardous Wastes  (Management and Handling) Rules, 1988.   Personal hearings were held in several cases by  the Commissioner, Mumbai for adjudication of  these cases\005\005.."

In regard to Basel Convention, the report states as under :

"The Basel Convention on the Control of  Transboundary Movements of Hazardous Wastes  and their Disposal was adopted by the

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conference of the Plenipotentiaries on  22.03.1989.  Article I of the Convention, dealing  with the scope  of the convention, defined  ’Hazardous Wastes’ as follows: (a)     Wastes that belong to any category  contained in Annexure I, unless they do not  possess any of the characteristics  contained in Annexure III; and  (b)     Wastes that arte not covered under  paragraph (a) but are defined as or are  considered to be, hazardous wastes by the  domestic legislation of the party of export,  import or transit. In the Annexure I to the Convention,  referred to above at (a), dealing with categories of  wastes to be controlled, the following categories  of Wastes are pertinent to the subject matter:

(a)Y8   Waste mineral oils unfit for their  originally intended used (b)Y9   Waste oils/water, hydrocarbons/  waster mixtures, emulsions

(c)Y10  Waste substances and articles  contained or contaminated with  polychlorinated biphenyls (PCBs)  and/or polychlorinated terphenyls  (PCTs) and/or polybrominated  biphenyls (PBBs) Annex III gives the list of Hazardous  Characteristics such as Explosive, Flammable  liquids, Flammable solids, Substances or wastes  liable to spontaneous combustion, Substances or  wastes which in contact with water emit  flammable gases, Oxidizing, Organic Peroxides,  Poisonous, Infectious substances, Corrosives,  Liberation of toxic gases in contact with air or  water, Toxic (Delayed or Chronic), Ecotoxic. The wastes are further specifically covered  under Annex VIII in List A which states that  ’Wastes contained in this Annex are  characterized as hazardous under Article I,  paragraph 1(a), of this Convention, and their  designation on this Annex does not preclude the  use of Annex III to demonstrate that a waste is  not hazardous.’  In this List A specific attention is  drawn towards the category A3 which deals with  ’Wastes containing principally organic  constituents, which may contain metals and  inorganic materials.’  Sub-division A 3020 of this  category deals with ’Waste mineral oils unfit for  their originally intended use.’ It is nobody’s case that the material  imported is not mineral oil or of mineral origin.  In  other words the category of Wastes to be  concentrated upon is A 3020 as it specifically  deals with mineral oils.  After identifying the exact  category of the material it remains to be seen  whether the imported material possesses any of  the characteristics as mentioned in Annex III to  the Convention.  All the test reports obtained from  the Indian Institute of Petroleum, Dehradun,  indicate that the materials have PCB. In respect of the impact of the presence of  PCBs on the waste oil, reference is made to the

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’Technical Guidelines on Hazardous Waste:  Waste Oils from Petroleum Origins and Sources  (Y8)’ issued by the Basel Convention.  Paragraph  10, outlining the characteristics of PCBs is  reproduced for reference \026 Particular concern  centers on a family of substances known as  polychlorinated biphenyls (PCBs) which combine  excellent insulation and heat transfer  characteristics, with high stability and non- inflammability.  However they are environmentally  extremely persistent and bio-accumulative, toxic  (and a suspected carcinogen), and if burned  under unsuitable conditions, will give rise to toxic  products of combustion including dioxins and  dibenzofurans\005.. Paragraph 30 indicates that  several countries have brought about Legislation  to define the concentration of the PCB below  which no concern need be felt and that 50 ppm is  the fairly established limit. All these definitions and various clauses in  the Convention indicate that the contents of the  convention cannot be seen in isolation to the  follow-up laws framed in this regard by the  individual member countries.  The contents of the  Convention are only in the form of guidelines to  the member nations and the final question of  whether the material is Hazardous Waste or not  cannot be answered on the basis of the contents  of the Convention alone.   With reference to the  presence of PCBs in waste oils, the National  Laws framed need to be examined to  categorically state whether the subject cargo is  hazardous or not.  The contention of all the  importers that their material had not violated  the 50 ppm limit prescribed in the Basel  Convention and were thus not Hazardous  Waste has not strength if the same are not  examined in the light of the Laws framed by  the Country in the process of aligning with the  recommendations of the Convention as the  contents of the Convention are by themselves  not any Law that could be implemented (to be  discussed later)."

       The report makes a detailed reference to The Hazardous Wastes  (Management and Handling) Rules, 1989 as introduced in 1989 and  amendments effected in January 2000 and in the year 2003.  In regard to  amendments made in January 2000 whereafter the imports were made,  the report notices as under :         "For the purpose of import, Rule 3(i) (c)  defined Hazardous Waste as those listed in List  ’A’ and ’B’  of Schedule-3 (Part A) if they  possessed any of the hazardous characteristics  listed in Part-B of Schedule.         List A of Schedule 3 is a reflection of List A  as Annex III of the Basel Convention and the  hazardous wastes appearing in this list of  Schedule 3 are restricted and cannot be allowed  to be imported into the country without DGFT  Licence.  In this list attention is drawn to the entry  ’Waste mineral oils unfit for their originally  intended use’ against Basel No A 3020.  Such  Waste mineral Oils would be characterized as  hazardous if they possess any of the  Characteristics enumerated in Part B of Schedule

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3.  The presence of PCB contents in Waste  mineral oils renders the material carcinogenic, bio  accumulative and ecotoxic.  Therefore, any  consignment of Waste mineral Oil having PCB  would be rendered Hazardous." (Emphasis supplied).

       Thus, from the rules, it is clear and evident that the presence of PCB  contents in any consignment of waste mineral oil would render such oil as  hazardous waste. On the aforesaid basis, most of the consignments have been found  to be hazardous waste.  The only consignment imported by Eleven Star  Esscon was found not to be hazardous but off specification fit for re- refining.  In respect of one container of Oil imported by Royal Implex  though the samples were not sent to the IIP for further analysis in respect  of Organic halides and PCB determination, the report concluded that it  would not be advisable to conduct those tests at that late stage as the  prolonged storage may have deteriorated material further and on the basis  of the test results available it was obvious that the material was not fit for  re-refining.   The report of the Commissioner of Customs has characterized the  goods as hazardous waste.  The conclusions arrived at by Commissioner  of Customs are as under: "The erstwhile Law therefore had enough  provisions to determine whether any given  sample of Fuel Oil had hazardous characteristics  or not.  And based on the directions inherent in  these Laws, it has been conclusively proved that  all the subject 133 containers of Furnace oil  contain Hazardous Waste Oil.  It is also  abundantly clear that this conclusion was arrived  at under the provision of the Law prevalent at that  time.  The importers had therefore imported  Hazardous Wastes in complete and flagrant  violation of the Law.  I, therefore, hold and  conclude that the goods, viz. Furnace oil imported  and contained in the said 133 containers are  hazardous."

Noticing that the entire cargo had been imported without proper  licence and its movement to the Country is illegal, reference has been  made in the report to Rule 15(2) which provides that (i) the waste in  question shall be shipped back within thirty days either to the exporter or to  the exporting country or (ii) shall be disposed of within thirty days from the  date of off-loading subject to inability to comply with sub-rule 2(i), in  accordance with the procedure laid down by the State Pollution Control  Board or Committee in consultation with Central Pollution Control Board. In regard to the possibility of re-export of the cargo, reference has  been made to Article 9(2)(a) of the Basel Convention which provides that  in the case of illegal traffic as a result of conduct on the part of the  exporter, the state of export shall ensure that the waste in question is  taken back by the exporter within 30 days from the time the state of export  was informed.  It has been stated that even though there are provisions,  both in international Conventions, like Basel Convention, and in our  national laws, a holistic view needs to be taken in view of the prevailing  circumstances.  The exporters of the cargo may not take the cargo after 4  years.  Besides a whole range of time consuming protocol measures may  be involved.  The re-export of cargo at this point of time and under the  conditions in which the cargo was lying has been ruled out also stating that  issues like transportation charges and the ownership and acceptability of  the cargo at the destination point may be highly vexed and difficult to  surmount.  In this backdrop, the possibility of disposal locally as a one-time  measure was examined. Regarding the disposal of the imported hazardous waste, the report

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states that certain drastic one-time measures are required to be taken.   Both the modes of disposal, i.e. by subjecting the waste to re-cycling and  alternatively by incinerating it, were examined.  It has been suggested that  overlooking the PCB presence up to 50 ppm, if the waste oil conformed to  the other specifications mentioned in schedule 6, then such consignments  may be considered for recycling.  These consignments could be  adjudicated and released to the importers only under the condition that  they would get the material recycled, under the control and supervision of  the Central Pollution Control Board authorities, in Units registered with  MOEF and having consent/authorization from by the State Pollution  Control Board.  Further suggestion is that consignments not conforming to  the specifications of Schedule 6 and/or having PCB in excess of 50 ppm  may be subjected to incineration at the importer’s cost at the Hazardous  Incinerator under supervision of the State Pollution Control Board.  In  cases where the cargo is required to be incinerated, besides cleaning the  pollution caused due to leakages, the suggestions is that the importer may  also be directed to bear the cost of transportation to the incineration site,  its handling there and its incineration costs till final disposal.   Further, the report recommends that the importers may be directed  to pay all the testing charges incurred by MPCB (Rs.6.5 lakhs) and  Customs (Rs.7.5 lakhs approximately) from the initial stage and till final  disposal of goods.  It also notices that the two importers did not appear for  personal hearing despite several reminders.  All the 15 importers have  been divided into five different categories.         In category one, there are 10 importers in respect whereof  recommendations is for recycling or incineration.  One importer \026Indochem  has been placed in category two in which though sample passed other  tests, but presence of PCB rendered the goods hazardous.  The  recommendation is for release of goods to the importer.  The sample of  Royal Impex has higher lead content and not fit for recycling.  Sample was  not tested for PCB contents.  Placing it in category three, recommendation  is that request for re-export may be considered by this Court.  The import  of Eleven Star Esscon has been placed in category four.  These goods  have been confiscated absolutely.  The goods have heavy metal  concentrations but within recycling limits and do not have organic holds  and PCBs.  Recycling has been recommended.  The two importers who  were proceeded exports have been placed in category five and  recommendation is that action on above lines be taken.   The attention of this Court has been drawn to the condition of the  waste oil stock lying in the Customs area pointing out that many of the  drums have exploded and the contents are spread in the area which is  definitely a fire hazard and is also causing grave damage to the  environment.   The report further points out that in addition to the 133 containers,  another group of imports by various parties comprising of an additional 170  containers, which had been imported after the import of 133 containers,  are also lodged with the Custodians in the same area and are more or less  in the same condition.  It has also been pointed out that the importers of  these 170 containers have not filed any import clearance documents with  the Customs so far.         The aforesaid report of Commissioner of Customs has been  considered by the Monitoring Committee.  The Monitoring Committee has  recommended disposal of all consignments except one by incineration in  consultation with two Pollution Control Boards mentioned in its report.  It  has noticed that adequate facilities are not available even with registered  refiners for re-refining oil containing PCBs.  Notice has also been taken of  the fact that the Director, IIP, Dehradun has mentioned that since all 133  containers have been lying at Mumbai Port since 2000, the oil would have  undergone considerable degradation in last four years.  Another important  factor that has been taken into consideration is about the cost of re-refining  being exorbitant and, therefore, it was not economically feasible to re- refine the oil in question.              In respect of consignments of category one, learned counsel for  importers sought to contend that PCBs were within the limits prescribed by  the Basel Convention and also that the same were of small quantity, it

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being minimal and negligible and, therefore, the recommendation of the  Monitoring Committee for destruction of oil by incineration does not  deserve to be accepted.  Reference was also made to Technical  Guidelines on Hazardous Waste: Waste Oils From Petroleum Origins and  Sources [(Y8) Basel Convention] to contend that the presence of PCBs  and waste oil as a secondary fuel upto 50 PPM was fairly acceptable in  respect of marketing and use.  On this basis and with reference to the test  report, it was contended that since the PCB in the consignments in  question being minimal and negligible, there was no contravention of the  Basel Convention.  It was contended that as per recommendations of  Commissioner of Customs re-refining was possible but the Monitoring  Committee has only recommended destruction by incineration without any  legal basis. The Monitoring Committee comprises of experts in the field.  It has  recommended destruction of the consignment by incineration.  The PCBs  may be within permissible limit insofar as parameters of Basel Convention  are concerned but, at the same time, it has to be kept in view that  parameters fixed by the Basel Convention are only guidelines and the  individual countries can provide different criterion in their national law to lay  down the limits of concentration of PCBs so as to label it as hazardous  waste.  Even European Community is considering to reduce PCBs  concentration from 50 PPM to 20 PPM to make it consistent with the limits  on oils being used as fuel.  Be that as it may, insofar as our country is  concerned, the provision is that the presence of PCBs shall be of non- detectable level.  The national law laying stricter condition has to prevail.   The Commissioner of Customs, on detailed examination, has concluded  that the import was in complete and flagrant violation of law.  The import is  of hazardous waste.  In the garb of furnace oil, hazardous waste has been  imported.  Further, many of the drums have exploded and the contents  spread in the area which besides being a fire hazard is also causing grave  damage to the environments.  PCBs are environmentally extremely  persistent and bio-accumulative, toxic (and a suspected carcinogen), and if  burnt under unsuitable conditions, will give rise to toxic products of  combustion including dioxins and dibenzofurans.  Great care is required in  assessing and selecting disposal options for such oils. The CPCB which is  implementing the Registration Scheme for actual users of hazardous  wastes including used/waste oil, is of the opinion that adequate facilities  are not available even with registered refiners for re-refining oil containing  PCBs.  That apart, oil regeneration technologies depend to some degree  of quality of waste oil.  Regeneration process involves the application of  reasonably sophisticated technology and require care and expertise in  their operation.  The illegally imported oils remained on the Port for four  years and would have undergone considerable degradation during this  period.  Nothing tangible has been shown so as to take a view different  than the one recommended by the Monitoring Committee. Learned counsel appearing for Royal Impex contended that in the  consignment imported by it only Ash contents were more as per the test  report on record and, therefore, the consignment may be released to the  importer.  It was also contended that the sample was not sent to IIP for  further test in respect of organic halides and PCB determination.  The  report, however, states that it may not be feasible to conduct those tests  now as prolonged storage may have deteriorated the material further.   According to the report of the Commissioner of Customs on the basis of  the test results available, the material was not fit for recycling.  Our  attention was drawn by learned counsel for the importer to the test report  of New Custom House Laboratory which only shows that ash contents  were more and contention urged was that the conclusion arrived by the  Commissioner of Customs that the material was off specification and on  account of higher lead contents, it was not fit for recycling is without any  basis.  It was contended that the test report of Central Revenue Control  Laboratory (CRCL) was not on record and on that basis, submission made  is that the conclusion that the samples were tested at CRCL which showed  that lead contents exceeded the limits prescribed for re-refining was wholly  untenable.  On directions of this Court, learned counsel for the  Commissioner of Customs has filed before us a copy of the report of CRCL

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which shows the lead MG/LIT being 2824.87.  This high percentage of lead  was against the prescribed used oil specification for re-refining being 100  PPM.  Further, from the reply dated 7th May, 2004 sent to the show cause  notice dated 13th April, 2004, the importer did not ask for testing of oil to  determine PCB contents.  On the other hand, the stand in the said reply is  that if sample is tested after passage of four years, the nature of oil would  have changed considerably and the oil may have certain impurities and,  therefore, the testing of oil will not be an accurate method to ascertain the  genuineness of the oil at the time it was imported.  Even before us, the  submission is not that the sample should now be sent for testing.  We do  not think that at this stage, the consignment can be allowed to be re- exported though agreed to by the Monitoring Committee.  It also cannot be  allowed to be recycled.  The oil deserves to be incinerated.         In respect of import effected by Eleven Star Esscon, heavy metal  concentrations are within recycling limits.  It does not have organic halides  and PCBs.  Recommendation of the Commissioner of Customs is for its  recycling.  The Monitoring Committee has, however, recommended its  incineration possibly in view of its deterioration for about four years when  the consignment was lying at the Port.  The consignment has been  confiscated absolutely.   It is now the Government’s property.  Learned  counsel for the importer Eleven Star Esscon has not challenged the  confiscation and has rather contended that his client has no intention to  challenge the same.  In view of the finding that the heavy metals are within  recycling limits, there were no organic halides and the PCBs and the  consignment has been found to be fit for recycling, we feel that the  recycling deserves to be permitted as recommended by Commissioner of  Customs but the same shall be done under the supervision of the  Monitoring Committee.  Having so permitted, we may note that the cost of  recycling may be very exorbitant and it may not be economically viable.  If  recycling is not considered advisable by the Government, the consignment  shall have to be destroyed by incineration in the same manner as other  consignments.  The decision whether the Government desires the  consignment to be recycled shall be taken within a period of four weeks  failing which the consignment shall be destroyed by incineration along with  other consignments.  The cost of incineration shall be paid by the  Government.         According to the Monitoring Committee, the cost of incineration will  be at the rate of Rs.12/- per kilo which also include the cost of transport to  be paid by the importers in advance. The liability of the importers to pay the amounts to be spent for  destroying the goods in question cannot be doubted on applicability of  precautionary principle and polluter pays principle.  These principles are  part of the environmental law of India.  There is constitutional mandate to  protect and improve the environment.  In order to fulfill the constitutional  mandate various legislations have been enacted with attempt to solve the  problem of environmental degradation.           In respect of the precautionary principle, Rio Declaration (Principle  No.15) provides that where there are threats of serious or irreversible  damage, lack of full scientific certainty shall not be used as reason for  postponing cost effective measures to prevent environmental degradation.   This principle generally describes an approach to the protection of the  environment or human health based around precaution even where there  is no clear evidence of harm or risk of harm from an activity or substance.   It is a part of principle of sustainable development, it provides for taking  protection against specific environmental hazards by avoiding or reducing  environmental risks before specific harms are experienced.   Having regard to the aforesaid principle, the import of waste oil  containing PCBs of detectable limit has been banned in India.  The fact  that PCBs content in the consignments was only marginal or minimal and  under Basel Convention its permissible limit is 50 PPM, is of no  consequence.  Judging by Indian conditions, our law has provided the limit  of PCBs which if of detectable limits, the import is not allowed.  The  national law has to apply and shelter cannot be taken under guidelines of  Basel Convention.         The polluter pays principle basically means that the producer of

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goods or other items should be responsible for the cost of preventing or  dealing with any pollution that the process causes.  This includes  environmental cost as well as direct cost to the people or property, it also  covers cost incurred in avoiding pollution and not just those related to  remedying any damage.  It will include full environmental cost and not just  those which are immediately tangible.  The principle also does not mean  that the polluter can pollute and pay for it.  The nature and extent of cost  and the circumstances in which the principle will apply may differ from  case to case.   The observations in Deepak Nitrite Ltd. v. State of Gujarat and  Others [(2004) 6 SCC 402] that ’mere violation of the law in not observing  the norms would result in degradation of environment would not be correct’  is evidently confined to the facts of that case.  In the said case the fact that  the industrial units had not conformed with the standards prescribed by the  pollution control board was not in dispute but there was no finding that the  said circumstance had caused damage to environment.  The decision also  cannot be said to have laid down a proposition that in absence of actual  degradation of environment by the offending activities, the payment for  repair on application of the polluter pays principle cannot be ordered.  The  said case is not relevant for considering the cases like the present one  where offending activities has the potential of degrading the environment.   In any case, in the present case, the point simply is about the payments to  be made for the expenditure to be incurred for the destruction of imported  hazardous waste and amount spent for conducting tests for determining  whether it is such a waste or not.  The law prescribes that on the detection  of PCBs in the furnace or lubricating oil, the same would come within the  definition of hazardous waste.  Apart from polluter pays principle, support  can also be had from principle 16 of the Rio Declaration, which provides  that national authorities should endeavour to promote the internalisation  of  environmental costs and the use of economic  instruments, taking into  account the approach that the polluter should, in principle, bear the cost of  pollution, with due regard to the public interests and without distorting  international trade and investment.   Further, learned counsel for the petitioner strenuously contended  that the exemplary and/or penal damages shall also be levied on the  offending importers.  In a given case, it may be possible to levy such  damages depending as well upon the nature and extent of offending  activity, the nature of offending party, the intention behind such activity but  in the present case in absence of clear finding on these aspects, it is  unnecessary to examine this aspect in depth.  It is, however, to be borne in  mind that in India the liability to pay compensation to affected persons is  strict and absolute and the rule laid down in Rylands v. Fletcher has been  held to be not applicable.         In M.C.Mehta and  Anr. v. Union of India and Others [ (1987) 1  SCC 395]  a Constitution Bench has held that the rule in Rylands v.  Fletcher  laid down the principle of liability that if a person who brings on  to his land and collects and keeps there anything likely to do harm and  such thing escapes and does damage to another, he is liable to  compensate for the damage caused.  This rule applies only to non-natural  user of the land and it does not apply to things naturally on the land or  where the escape is due to an act of God and an act of a stranger or the  default of the person injured or where the thing which escapes is present  by the consent of the person injured or in certain cases where there is a  statutory authority.  This rule evolved in the 19th century at a time when all  the developments of science and technology had not taken place cannot   afford any guidance in evolving any standard of liability consistent with the  constitutional norms and the needs of the present day economy and social  structure.  In a modern industrial  society with highly developed scientific  knowledge and technology where hazardous or inherently dangerous  industries are necessary to be carried on as part of the developmental  programme, Court should not feel inhibited by this rule merely because the  new law does not recognize the rule of strict and absolute liability in case  of an enterprise engaged in hazardous and dangerous activity.  Law has to  grow in order to satisfy the needs of the fast-changing society and keep  abreast with the economic developments taking place in the country.  Law

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cannot afford to remain static.  The Court cannot allow judicial thinking to  be constricted by reference to the law as it prevails in England or in any  other foreign country.  Though the Court should be prepared to receive  light from whatever source it comes but it has to build up its own  jurisprudence.  It has to evolve new principles and lay down new norms  which would adequately deal with the new problems which arise in a highly  industrialized economy.  If it is found that it is necessary to construct a new  principle of liability to deal with an unusual situation which has arisen and  which is likely to arise in future on account of hazardous or inherently  dangerous industries which are concomitant to an industrial economy, the  Court should not hesitate to evolve such principle of liability because it has  not been so done in England.    An enterprise which is engaged in a  hazardous or inherently dangerous industry which poses a potential threat  to the health and safety of the persons working in the factory and residing  in the surrounding areas owes an absolute and non-delegable duty to the  community to ensure that no harm results to anyone.  The enterprise must  be held to be under an obligation to provide that the hazardous or  inherently dangerous activity in which it is engaged must be conducted  with the highest standards of safety and if any harm results to anyone on  account of an accident in the operation of such activity resulting, for  example, in escape of toxic gas the enterprise is strictly and absolutely  liable to compensate all those who are affected by the accident as a part of  the social cost for carrying on such activity, regardless of whether it is  carried on carefully or not.  Such liability is not subject to any of the  exceptions which operate vis-‘-vis the tortuous principle of strict liability  under the rule in Rylands v. Fletcher.  If the enterprise is permitted to  carry on a hazardous or inherently dangerous activity for its profit, the law  must presume that such permission is conditional on the enterprise  absorbing the cost of any accident arising on account of such activity as an  appropriate items of its overheads.  The enterprise alone has the resource  to discover and guard against hazards or dangers and to provide warning  against potential hazards.         The polluter pays principle was applied in Indian Council for  Enviro-Legal Action and Others v. Union of India and Others [(1996) 3  SCC 212]  to fasten liability for defraying the costs of remedial measures.   The task of determining the amount required for carrying out the remedial  measures, its recovery/realization and the task of undertaking the remedial  measures was placed in this case upon the Central Government.  In the  present case the approximate expenditure to be incurred for destroying the  hazardous waste has been mentioned in report.         In Vellore Citizens’ Welfare Forum v. Union of India and Others  [(1996) 5 SCC 647] the precautionary principles and polluter pays principle  were held to be part of the environmental law of the country.  It was held  that the polluter pays principle means that the absolute liability for harm to  the environment extends not only to compensate the victims of pollution  but also the cost of restoring the environmental degradation.  Remediation  of the damaged environment is part of the process of sustainable  development.         In this very case, i.e., Research Foundation For Science  Technology National Resource Policy v. Union of India & Anr. [2003  (9) SCALE 303] while examining the precautionary principle and polluter  pays principle, the legal principles noticed in brief were :- "The legal position regarding applicability of the  precautionary principle and polluter pays principle  which are part of the concept of sustainable  development in our country is now well settled.  In  Vellore Citizens’ Welfare Forum v. Union of  India & Ors. [(1996) 5 SCC 647], a three Judge  Bench of this Court, after referring to the  principles evolved in various international  conferences and to the concept of "sustainable  development", inter alia, held that the  precautionary principle and polluter pays principle  have now emerged and govern the law in our  country, as is clear from Articles 47, 48-A and 51-

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A (g) of our Constitution and that, in fact, in the  various environmental statutes including the  Environment (Protection0 Act, 1986, these  concepts are already implied.   These principles  have been held to have become part of our law.   Further, it was observed in Vellore Citizens’  Welfare Forum’s case that these 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.   Reference may also be made to the decision in  the case of A.P. Pollution Control Board Vs.  Prof. M.V. Nayudu (Retd.) and Ors. [(1996) 5  SCC 718] where, after referring to the principles  noticed in Vellore Citizens’ Welfare Forum’s  Case, the same have been explained in more  detail with a view to enable the Courts and the  Tribunals or environmental authorities to properly  apply the said principles in the matters which  come before them.  In this decision, it has also  been observed that the principle of good  governance is an accepted principle of  international and domestic laws.  It comprises of  the rule of law, effective State institutions,  transparency and accountability and public  affairs, respect for human rights and the  meaningful participation of citizens in the political  process of their countries and in the decisions  affecting their lives.  Reference has also been  made to Article 7 of the draft approved by the  working group of the International Law  Commission in 1996 on "Prevention of Trans- boundary Damage from Hazardous Activities" to  include the need for the State to take necessary  "legislative, administrative and other actions" to  implement the duty of prevention of  environmental harm.  Environmental concerns  have been placed at same pedestal as human  rights concerns, both being traced to Article 21 of  the Constitution of India.  It is the duty of this  Court to render justice by taking all aspects into  consideration.  It has also been observed that  with a view to ensure that there is neither danger  to the environment nor to the ecology and, at the  same time, ensuring sustainable development,  the Court can refer scientific and technical  aspects for an investigation and opinion to expert  bodies.  The provisions of a covenant which  elucidate and go to effectuate the fundamental  rights guaranteed by our Constitution, can be  relied upon by Courts as facets of those  fundamental rights and hence enforceable as  such {see People’s Union for Civil Liberties Vs.  Union of India & Anr. [(1997) 3 SCC 433]}.  The  Basel Convention, it cannot be doubted,  effectuates the fundamental rights guaranteed  under Article 21.  The rights to information and  community participation for protection of  environment and human health is also a right  which flows from Article 21.  The Government and  authorities have, thus to motivate the public  participation.  These well-shrined principles have  been kept in view by us while examining and  determining various aspect and facets of the  problems in issue and the permissible remedies."

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The aforenoted precautionary principles are fully applicable to the  facts and circumstances of the case and we have no manner of doubt that  the only appropriate course to protect environments is to direct the  destruction of the consignments by incineration in terms discussed above  and as recommended by the Monitoring Committee.         It seems that by disposal of the oil under the supervision of  Monitoring Committee at the incinerators which have adequate facilities to  destroy the oil at a required temperature, there would be no impact on  environments.         In regard to 170 containers referred to in the report of the  Commissioner of Customs which are also lodged in the same premises in  more or less same condition, the Monitoring Committee has noted that  these containers have not been claimed by the importers.  The details of  the importers of these consignments are not on record.  Before we issue  directions in respect of these 170 containers, it would be necessary to  have on record the details of these imports.  The concerned authorities,  i.e., Jawaharlal Nehru Port or Mumbai Port and all other concerned  Departments are directed to furnish to the Monitoring Committee within  four weeks up to date information as to the import of the 170 containers,  how the consignment was dealt with right from the date of the arrival till  date.  The Monitoring Committee shall file a report along with its  recommendations and on consideration thereof, necessary directions in  regard to 170 containers would be issued.         The aforesaid 133 containers are directed to be expeditiously  destroyed by incineration as per the recommendations of the Monitoring  Committee and under its supervision subject to and in terms of this order.   The cost of incineration shall be deposited by the importers with the  Monitoring Committee within four weeks.  The Monitoring Committee will  ensure the timely destruction of the oil at the incinerators mentioned in its  report.  After the destruction of the oil in question, a compliance report  shall be filed by the Monitoring Committee.  All concerned are directed to  render full assistance and cooperation to the Monitoring Committee.  In  regard to the consignment of Eleven Star Esscon, in case option for  recycling is exercised by the Government, the recycling would be done  under the supervision of the Monitoring Committee.  If the request for  recycling is not received by the Monitoring Committee within four weeks,  the said consignment would also be destroyed in the same manner as the  other consignments.