|REPORTABLE |
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I.A. NOS.61 & 62 OF 2012
IN
WRIT PETITION (C) No.657 of 1995
1 RESEARCH FOUNDATION FOR SCIENCE, … PETITIONER
2 TECHNOLOGY AND NATURAL RESOURCE
3 POLICY
VS.
2 UNION OF INDIA & ORS. …
RESPONDENTS
O R D E R
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 disposed of by this Court. I.A. No.61 of 2012 which had been filed by
M/s 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 known as Exxon Valdez), which had entered into
Indian territorial waters and had sought the permission of the Gujarat
Pollution 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, 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 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.
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.
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 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
associated with breaking of different categories of ships of special
concern, handling of hazardous material and the role and responsibilities
of various defaulters. Mr. Bhan submitted that the said Report also focused
on ships of special concern in assessment of hazardous wastes and
potentially hazardous 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 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 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.
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 subsequent beaching and dismantling of the ship, in
strict compliance with the directions contained in the order passed by this
Court on 6th September, 2007.
6. Mr. Bhan also referred to an affidavit affirmed on behalf of the
Ministry of Shipping, in which it was stated that for 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 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 in the matter.
7. Appearing for the Gujarat Pollution Control Board, Gandhinagar, Ms.
Hemantika Wahi submitted that in keeping with the directions contained 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, 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
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 code came into
force, the 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 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 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 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
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 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.
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 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. 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 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.
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
territorial waters, which was dependent upon the availability of landfill
facilities, as also facilities for beaching. Mr. Parikh submitted that it
is only after completion of the aforesaid requirements, that the ship could
be allowed 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 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 to dismantle the ship should
not be permitted, without definite 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 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.
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
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 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 the ship. The reports
have been submitted on the basis of actual inspection carried out on board
by the above-mentioned 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.
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 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 steps for their disposal at the cost of the owner of
the vessel, M/s Best Oasis Ltd., or its 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 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.
14. There will be no order as to costs.
………………………………………………………J.
(ALTAMAS KABIR)
………………………………………………………J.
(J. CHELAMESWAR)
New Delhi
Dated: 30th July, 2012.
