TaxTMI 
TaxTMI 
2005 (1) TMI 746
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....r Singh, Shivangi Anil Shrivastav, R.A. Perumal, S. Vallinayagam, Janaranjan Das, Swetaketu Mishra, Moushumi Gahlot, Dharmendra Kumar Sinha, Kamlendra Mishra, Rajeev Kumar Dubey, Rashmi Singh, A. Mariarputham, Aruna Mathur, D.N. Goburdhan, Pinky Anand, Geeta Luthra, Krishna Sharma, Riku Sarma, Sushila Ram, Nikhil Nayyar, L.N. Joshi, Hemantika Wahi, Gopal Singh, K.B. Rohtagi, Manik Karanjawala, Pramod Swarup, Pradeep Misra, R.V. Ratnam, Urmila Sirur, S.A. Syed, Rakesh K. Sharma, Mukesh K. Giri, Radha Shyam Jena, Sanjay R. Hegde, Javed Mahmud Rao, K.K. Gupta and Jayant Bhushan, Advs JUDGMENT Y.K. Sabharwal, J. 1. 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 compr....
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....er 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. 5. 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 proceedin....
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....t 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 Esscon 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....
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...., 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 c....
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....e 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)." 7. 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, *he 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 minera....
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....f 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. 12. 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 ....
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....ndation 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. 16. 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. 17. 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 wit....
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....abel 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....
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....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. 22. 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....
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....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. 27. The polluter pays principle basically means that the producer of 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. 28. The observations in Deepak Nitrite Ltd. v. State of Gujarat and Ors. (2....
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....and Ors. [1987]1SCR819 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 modem 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 fee....
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.... 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. 31. The polluter pays principle was applied in Indian Council for Enviro-Legal Action and Ors. v. Union of India and Ors. [1996]2SCR503 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. 32. In Vellore Citizens' Welfare Forum v. Union of India and Ors. AIR1996SC2715 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 environmen....
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....he 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 v. Union of India and Anr. AIR1997SC1203 } The Basel Convention, it cannot be doubted, effectuates the fundamental rights guaranteed und....