RESEARCH FOUNDATION FOR SCIENCE, TECHNOLOGY AND NATURAL RESOURCE POLICYversusUNION OF INDIA & ORS.

                   [2012] 6 S.C.R. 1039


     RESEARCH FOUNDATION FOR SCIENCE,                           A
  TECHNOLOGY AND NATURAL RESOURCE POLICY
                             v.
                 UNION OF INDIA & ORS.
                 I.A. Nos. 61 & 62 of 2012
                             ~                                  B
             Writ Petition (C) No. 657 of 1995
                       JULY 30, 2012
    [ALTAMAS KABIR AND J. CHELAMESWAR, JJ.]
                                                                c
    ENVIRONMENTAL LAW:
     Hazardous Wastes (Management and Handling) Rules,
1989- Writ petition challenging the Rules as unconstitutional
and seeking direction to ban import of HazardOU$ wastes in
                                                                 0
India and amendment of the Rules in conformity with the
BASEL Convention and Articles 21, 47 and 48A of the
                                                  '
Constitution - During pendency of the petition, applications
seeking permission of State Pollution Control Board and
State Maritime Board to allow a ship (which had entered E
territorial waters o( India) to beach for the purpose 'lJf
dismantling - In the meantime disposal of the writ petition
asserting the interim directions given in the writ petition from
time to time with regard to handling of hazardous wastes and
ship-breaking - Held: Since clearance has been given by
State Pollution Control Board, State Maritime Board and F
Atomic Energy Regulatory Board for the ship to beach for the
purpose of dismantling, it is presumed that the ship is free
from hazardous and toxic substances except the substances
which might be part of the superstructure of the ship and could
be exposed only at the time of its dismantling - Direction to G
the authorities to allow the ship to beach and permit
dismantling of the ship - Authorities concerned directed to
take steps for disposal of the toxic wastes discovered during
dismantling at the cost of the owner of the ship or its nominee/
                            1039                                H
    1040     SUPREME COURT REPORTS                [2012] 6 S.C.R.


A nominees - In all future cases of similar nature, the authorities
  concerned to strictly comply with the norms laid down in
  BASEL Convention or any other subsequent provisions
  adopted by the Central government - BASEL Convention.

B       CIVIL ORIGINAL JURISDICTION : I.A. Nos. 61 & 62 of
    2012.
                                    IN
        Writ Petition (Civil) No. 657 of 1995.

c       Under Article 32 of the Constitution of India.

       Ashok Bhan, T.S. Doabia, Raj Panjwani, Manjit Singh, Dr.
  Manish Singhvi, AAG, Sanjay Parikh, Sadhna Sandhu, B.K.
  Prasad, Hemantika Wahi, Jesal, Nandani Gupta, E.C.
  Agrawala, Vikas Bansal, Vibha Datta Makhija, Bijoy Kumar
D Jain, Manish K. Bishnoi, Sunita Sharma, Kiran Bhardwaj, S.S.
  Rawat, Asha G. Nair, D.S. Mahra, Vijendra Kumar, Shaikh
  Chand Saheb, Amit Kumar, P.S. Sudheer, Vijay Panjwani,
  Ranjan Mukherjee, S. Bhowmick, S.C. Ghosh, Garima Bose,
  Vivekta Singh, Kamal Mohan Gupta, Aditya Shamlal, Arijit
E Prasad, T.A. Khan. A.K. Sharma, lrshad Ahmad,
  Bhavanishankar V. Gadnis, A. Raghunath for the appearing
  parties.

        The Order of the Court was delivered by
F
                             ORDER

        ALTAMAS KABIR, J. 1. On 6th July, 2012, Writ Petition
  (Civil) No.657 of 1995 filed by the Research Foundation for
  Science, Technology and Natural Resources Policy was
G disposed of by this Court. I.A. No.61 of 2012 which had been
  filed by Mis Best Oasis Ltd. on 9th May, 2012, and I.A. No.62
  of 2012 filed by Gopal Krishna on 18th June, 2012, were heard
  separately since in the said applications relief was prayed for
  in respect of a specific ship named "Oriental Nicety" (formerly
H known as Exxon Valdez), which had entered into Indian territorial
 RESEARCH FOUNDATION FOR SCIENCE v. UNION1041
        OF INDIA [ALTAMAS KABIR, J.]
                                             .
waters and had sought the permission of the Gujarat Pollution           A
Control Board and the Gujarat Maritime Board to allow the ship
to beach for the purpose of dismantling. Such relief would, of
course, be subject to compliance with all the formalities as
required by the judgments and orders passed by this Court on
14th October, 2003, 6th September, 2007 and 11th September,             B
2007 in the Writ Petition. The Applicant, M/s Best Oasis Ltd.
is the purchaser of the said ship.
     2. Another prayer was for a direction to the above-
mentioned Authorities and the Atomic Energy Regulatory Board
to inspect the ship and to permit it to enter into Indian territorial   C
waters and allow it to anchor in Indian waters, which has been
rendered redundant, since, as submitted by Ms. Hemantika
Wahi, learned Standing Counsel for the State of Gujarat, the
said stages have already been completed and the ships is
anchored outside Alang Port.                                            D
      3. After the application had been filed, the Union of India
in its Ministry of Environment and Forests, and the Gujarat
Maritime Board, were directed to file their respective responses
thereto.
                                                                        E
     4. Appearing on behalf of the Union of India in its Ministry
of Environment and Forests, Mr. Ashok Bhan, learned Senior
Advocate, submitted that an affidavit had been affirmed by Shri
M. Subbarao, Director, Ministry of Environment and Forests,
in which it had been disclosed that a Technical Expert
                                                                        F
Committee (TEC) had been appointed pursuant to the
directions contained in the order dated 6th September, 2007,
passed by this Court in the Writ Petition, The said Committee
Report dealt in great detail with the hazards associated with
the ship breaking industry, occupational and health issues,
social welfare activities of workers, occupational hazards              G
associated with breaking of different categories of ships of
special concern, handling of hazardous material and the role
and resppnsibilities of various defaulters. Mr. Bhan submitted
that the said Report also focused on ships of spec:al concern
in assessment of hazardous wastes and potentially hazardous             H
    1042     SUPREME COURT REPORTS                   [2012] 6 S.C.R.


A materials. It was urged that a definite procedure for anchoring,
  beaching and breaking of ships had been laid down in the
  Report of the Committee which is applicable to ship-breaking
  activities in all the coastal States of India. In fact, it was pointed
  out by Mr. Bhan that the procedures recommended by the
B Committee were already in force and in terms of the order
  dated 6th September, 2007, the Report of the Committee is
  to remain in force until a comprehensive Report, incorporating
  the recommendations of the Committee, was formulated. In
  addition, Mr. Bhan submitted .that in compliance with this Court's
c order dated 14th October, 2003, the Union of India, in its
  Ministry of Steel, has constituted an Inter-Ministerial Standing
  Monitoring Committee to periodically review the status of
  implementation of the recommendations of the Technical Expert
  Committee.
D      5. Mr. Bhan submitted that the provisions of the Basel
  Convention relating to the disposal of hazardous wastes are
  being strictly followed and as far as the present ship is
  concerned, it was for the Gujarat Maritime Board, which is the
  concerned local authority to take a decision for anchoring and
E subsequent beaching and dismantling of the ship, in strict
  compliance with the directions contained in the order passed
  by this Court on 6th September, 2001.
       6. Mr. Bhan also referred to an affidavit affirmed on behalf
  of the Ministry of Shipping, in which it was stated that for
F permitting a vessel to anchor, inspection is to be carried out
  by the State Maritime Board in consultation with the State
   Pollution Control Board and Customs Department. In the
  affidavit, it has been specifically averred that an inspection of
  the vessel had been carried out by the Gujarat Maritime Board
G and it was found that the ship had been converted from an oil
  tanker to a bulk carrier in 2008 and there was no sign of any
  hazardous/toxic substance on board. It was also stated in the
  affidavit that_the Board had given its "no objection" for beaching
  of the ship and the Ministry of Shipping, therefore, had no say
H in the matter.
 RESEARCH FOUNDATION FOR SCIENCE v. UNION 1043
        OF INDIA [ALTAMAS KABIR, J.]

      7. Appearing for the Gujarat Pollution Control Board,          A
Gandhinagar, Ms. Hemantika Wahi submitted that in keeping
with the directions conta.ined in the order passed by this Court
on 6th September, 2007, an Inter-Ministerial Committee and
Standing Monitoring Committee to review the status of
implementation of the directions of this Court from time to time,    B
had been constituted. However, as a matter of precaution, the
Gujarat Pollution Control Board had not recommended that
permission be granted to the vessel in question to anchor, until
further orders were passed by this Court in the pending Writ
Petition. Ms. Wahi submitted that in the order dated 6th             c
September, 2007, this Court had recommended the formulation
of a comprehensive code to govern the procedure to be
adopted to allow ships to enter into Indian territorial waters and
to beach at any of the ports in India for the purpose of
dismantling. However, till such coqe came into force, the            D
officials of the Gujarat Maritime Board, the concerned State
Pollution Control Board, officials of the Customs Department,
National Institute of Occupational Health and the Atomic Energy
Regulatory Board, could oversee the arrangements. Ms. Wahi
submitted that the application for recommendation for anchoring
could be decided in view of the aforesaid order dated 6th            E
September, 2007, and the TEC Report which had been
accepted by this Court vide the said order, with liberty to file a
response to the application at a later stage, if required.

     8. Ms. Wahi then referred to the affidavit affirmed on behalf   F
of the Gujarat Maritime Board by Capt. Sudhir Chadha, Port
Officer, Ship Recycling Yard, in the Gujarat Maritime Board at
Alang. Ms. Wahi .submitted that in terms of the directions given
on 25th June, 2012, on the application of M/s Best Oasis Ltd.,
the Gujarat Maritime Board instructed the company to bring the       G
vessel to the Port area of Alang for inspection. Ms. Wahi
submitted that when the vessel arrived outside the Port area
of Alang on 30th June, 2012, officers of all concerned
departments, including the Gujarat Maritime Board, the Gujarat
Pollution Control Board, Customs Department, Explosives              H
    1044     SUPREME COURT REPORTS                   [2012] 6 S.C.R.


A Department, Atomic Energy Regulatory Board, went on board
  the ship to inspect and ascertain that there was no ,hazardous/
  toxic substance on it. Ms·. Wahi submitted that upon inspection,
  nothing hazardous or toxic was discovered on the vessel, which
  was found to be in conformity with the documents submitted for
B desk review. The Gujarat Maritime Board, therefore, certified
  that the ship was fit for breaking/dismantling and beaching
  permission would be given after following the procedure laid
  down by TEC and approved by this Court in its order dated 6th
  September, 2007.
c      9. The recommendations of the Gujarat Maritime Board
  and the Gujarat Pollution Control Board to allow the vessel to
  beach at Alang was hotly contested by Mr. Sanjay Parikh,
  learned Advocate appearing for the Petitioner, Research
  Foundation for Science, Technology and Natural Resources
D Policy. Mr. Parikh urged that while disposing of the Writ Petition
  on 6th July, 2012, this Court had directed the Union of India and
  the Respondents concerned to follow the procedure which had
  been laid down in the Basel Convention in the· matter of ship-
  breaking, which often generated large quantities of toxic waste.
E Mr. Parikh submitted that none of the safeguards which had
  been put in place by the Basel Convention had been complied
  with or followed in permitting the Oriental Nicety to enter into
  Indian territorial waters. Mr. Parikh submitted that under the
  Basel Convention, the country of export of the ship was
F required to inform the country of import of the movement of the
  ship in question and that it was non-hazardous and non-toxic.
  Mr. Parikh submitted that in the instant case such intimation was
  neither given nor was the ship certified to be free from
  hazardous and toxic substances.
G
         10. It was also urged that the owners of the vessel were
    required to obtain clearance from the Government of India to
    bring the ship into Indian ferritorial waters, which was dependent
    upon the availability of landfill facilities, as also facilities for
    beaching. Mr. Parikh submitted that it is only after completion
H
 RESEARCH FOUNDATION FOR SCIENCE v. UNION 1045
        OF INDIA [ALTAMAS KABIR, J.]

of the aforesaid requirements, that the ship could be allowed      A
entry into Indian territorial waters and to beach at any of the
ship-breaking yards at any of the Ports designated for such
purpose. Mr. Parikh submitted that in the absence of proper
compliance with the norms laid down in the Basel Convention,
the vessel ought not to have been permitted to enter into Indian   B
territorial waters or the Port area at Alang by the Gujarat
Pollution Control Board and the Gujarat Maritime Board. Mr.
Parikh further submitted that now the vessel had been permitted
to enter the Alang Ship-breaking Yard, further steps t.o
dismantle the ship should not be permitted, without definite       c
steps being taken to ensure that there were no hazardous
substances on board the ship or that the ship itself was not a
hazardous object.

     11. Mr. Parikh further submitted that if during the
dismantling of the ship any toxic or hazardous materials were      D
found on board the ship or was found to be an integral part of
the ship, adequate precautionary measures should be taken
immediately to neutralize the same either by incineration or by
creating adequate landfills for disposal of such waste.
                                                                 E
      12. We have carefully considered the submissions made
-on behalf of the respective parties in the light of the
 submissions made on behalf of Applicant, M/s Best Oasis Ltd.,
 the owner of the vessel in question, that huge demurrage
 charges are being incurred by the ship owner each day. We F
 are of the view that once clearance has been given by the State
 Pollution Control Board, State Maritime Board as well as the .
 Atomic Energy Regulatory Board for the vessel to beach for the
 purpose of dismantling, it has to be presumed that the ship is
 free from all hazardous or toxic substances, except for such G
 substances such as asbestos, thermocol or electronic
 equipment, which may be a part of the ship's superstructure and
 can be exposed only at the time of actual dismantling of t~e
 ship. The reports have been submitted on the basis of actual
 inspection carried out on board by the above-mentioned
                                                                 H
     1046     SUPREME COURT REPORTS                 [2012) 6 S.C.R.


A     authorities, which also include the Customs authorities. The
      Atomic Energy Regulatory Board has come up with
      suggestions regarding the removal of certain items of the ship
      during its dismantling. The suggestions are reasonable and look
    . to balance the equities between the parties.
B
        13. We, therefore, dispose of the two IAs which we have
  taken up for hearing and direct the concerned authorities to
  allow the ship in question to beach and to permit the ship owner
  to proceed with the dismantling of the ship, after complying with
  all the requirements of the Gujarat Maritime Board, the Gujarat
C Pollution Control Board and Atomic Energy Regulatory Board.
  It is made clear that if any toxic wastes embedded in the ship
  structure are discovered during its dismantling, the concerned
  authorities shall take immediate step~ for their disposal at the
  cost of the owner of the vessel, Mis Best Oasis Ltd., or its
D nominee or nominees.

       14. Before parting with the matter, we would like to
  emphasize that in all future cases of a similar nature, the
  concerned authorities shall strictly comply with the norms laid
E down in the Basel Convention or any other subsequent
  provisions that may be adopted by the Central Government in
  aid of a clean and pollution free maritime environment, before
  permitting entry of any vessel suspected to be carrying toxic
  and hazardous material into Indian territorial waters.
F         14. There will be no order as to costs.

     K.K.T.                                         I.As disposed of.