IMPACT OF GO 111

1. GO 111: 1.1       The Municipal Administration and Urban Development (I1) Department, Government of Andhra Pradesh (“MAUD”) had passed GO Ms. No. 111, M.A. dated March 8, 1996 amending GO Ms. No. 192, M.A dated March 31, 1994 (“GO 111”). 1.2       GO 111 prohibits (a) polluting industries, major hotels, residential colonies or other establishments that generate pollution in the catchment area of the lakes upto 10 kms. from full tank level of the lakes as per the list set out in Annexure – I of GO 111 [3(i) of GO 111], (b) polluting industries within 10 Kms., radius (in both upstream and downstream side of the lakes) to prevent acidification of lakes due to air pollution [3(e) of GO 111], and (c) location of industries in the prohibited zone [3(f) of GO 111]. However, an exception to residential developments in residential use zone has been carved out. 1.3       GO 111 does not restrict its applicability only to “polluting industries”, but also applies to other pollution generating establishments such as major hotels, residential colonies or other establishments that generate pollution in the catchment of the lakes upto 10 kms. from full tank level of the lakes as per the specified areas.

2.          Pollution:

2.1       GO 111 does not define the term “pollution”. Section 2 (e) of the Water (Prevention and Control of Pollution) Act, 1974 (‘Water Act’) defines the term “pollution” to mean “such contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may or is likely to, create a nuisance or render such water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of aquatic organisms”. 3.           

Polluting Industries:

3.1       In exercise of its powers under the (a) Environment (Protection) Act, 1986, (b) Water (Prevention and Control of Pollution) Act, 1974 and (c) Air (Prevention and Control of Pollution) Act, 1981, the Ministry of Forests and Environment, Government of India issued a notification dated September 27, 1988 classifying the industries in ‘Red’, ‘Orange’ and ‘Green’ categories. The ‘Red’ category being the most polluting and the ‘Green’ category being lesser polluting. The said order prescribed that when an industry seeks consent from the Pollution Control Board, as required by the above Acts, the Pollution Control board while processing the consent application should decide, keeping in view the pollution causing potential of the industry, as to which category the industry would fall and what environmental safeguards should be determined.

4.               Proposed Amendment to GO 111:

4.1       The MAUD vide memo bearing Ref. No. 261/1/2006 dated July 16, 2007 published the draft of a revised notification (the “Notification”) for regulating developments in the downstream area falling within 10 km distance from the full tank level of Osmansagar and Himayatsagar lakes and invited objections from the public in respect thereof. However, the said Notification is yet to be notified / published. 4.2         The said Notification has been challenged and the proceedings in respect thereof are currently pending before the High Court of Andhra Pradesh. It may be noted that the High Court of Andhra Pradesh, vide its order dated April 15, 2010 passed in Writ Petition bearing WP No. 9386 of 2007 filed by one S. Jeevananda Reddy, rejected the interim application filed by the Government of Andhra Pradesh seeking permission of the Court to amend GO 111.

5.          Relevant Judgments:

5.1       In the case of A. P. Pollution Control Board Versus Prof. M. V. Naidu and Ors[1], the Supreme Court of India, while referring the issue of whether the industry falling within the 10 kms. radius specified in GO 111 is a hazardous one and likely to affect the sensitive catchment area resulting in pollution of the Himayat Sagar and Osman Sagar lakes to the Appellate Authority under the National Environment Appellate Authority Act, 1997, observed that in the 11th Principle of the U.N. General Assembly Resolution on World Charter for Nature, 1982, the emphasis shifted to the ‘Precautionary Principle’. The  Supreme Court noted that “the precautionary principle  suggests that where there is an identifiable risk of serious or irreversible harm, ………………., it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful o the environment.” That in environment pollution matters, the burden of proof was on the industry to establish that there would be no danger of pollution to the two reservoirs even if the industry was established within 10 kms. radius of the said reservoirs.

5.2       In the case of A. P. Pollution Control Board II Versus Prof. M. V. Naidu and Ors[2], the Supreme Court of India examined the issue whether the exemption granted by the State Government under GO Ms. 111 was valid. The  Supreme Court observed that under Section 3 (2) (v) of the Environment (Protection) Act, 1986, restrictions specifying "areas" in which industrial operations or processes shall not be carried out or shall be carried out subject to certain safeguards could be imposed by the State Government. It also observed that GO 111 falls within the first part of such restriction i.e. where industrial operations shall not be carried out and that there is a total prohibition within 10 kms. of the two reservoirs. The Hon’ble Supreme Court held that “When such a prohibition was in force, the State Government could not obviously grant any exemption to a specified industry like the seventh respondent, located within the 'area'. Nor was it permissible for the State to direct the appellant-Board to prescribe conditions for grant of NOC”.

The Hon’ble Supreme Court also held that while the State Government has the power to restrict the applicability of the Water Act, it did not have the power to “grant exemption to a particular industry within the area prohibited for location of polluting industries. Exercise of such a power in favour of a particular industry must be treated as arbitrary and contrary to public interest and in violation of the right to clean water under Article 21 of the Constitution of India.” The Hon’ble Supreme Court also observed that “ ….. reasoning given by us does not mean that exemption can be given to all industries within a particular radius of the reservoirs unmindful of the possible danger of pollution to the lakes. In fact, exemption granted even to a single major hazardous industry may itself be sufficient to make the water in the reservoirs totally unsafe for drinking water purposes. Government could not pass such orders of exemption having dangerous potential, unmindful of the fate of lakhs of citizens of the twin cities to whom drinking water is supplied from these lakes. Such an order of exemption carelessly passed, ignoring the 'precautionary principle', could be catastrophic.

5.3       Further, in the case of Forum for a better Hyderabad (Confederation of Voluntary Organizations of Hyderabad) Versus Government of A.P., represented by its Chief Secretary and Others[3], one of the issues to be determined was whether the proposed international airport being established at Hyderabad (“Hyderabad Airport”) could be considered to be a “polluting industry”. In this regard, it may be noted that the funnel zone of the Hyderabad Airport fell within 10 km distance from the full tank level of Osmansagar and Himayatsagar lakes. The Hon’ble High Court held that the ‘Hyderabad Airport' is not a "polluting industry". The Court further observed that the initial plans of the Airport were rejected by the Technical Committee and subsequently the plans were drastically revised such that all the activities that caused appreciable pollution were shifted beyond the 10 kms. limit from the catchment of the specified areas. The Hon’ble High Court also observed that “it is clear that the respondents are alive to the requirements of law and the clearance was issued by the Government of India after verifying compliance with the "precautionary principle" laid down by the Supreme Court in A.P. Pollution Control Board II v. M.V. Naidu………………..the very fact that the technical committee directed revision of plans and approved the plan only after it was revised in accordance with their directives demonstrates that adequate care has been taken by all concerned.”

5.4         A writ petition bearing WP No. 9386 of 2007 (Dr. S  Jeevananda Reddy Versus Chief Secretary , Hyderabad and Others) has been filed before the High Court of Andhra Pradesh with a prayer to ‘declare the action of the respondents in not taking steps to protect the catchment area and the area around Himayat Sagar and Osman Sagar lakes upto 10 KMs from full tank level from encroachments and constructions, development in tune with letter and spirit of the GO 111 and the judgment of Hon'ble Supreme Court as unconstitutional and consequently direct the respondents to cancel all the approvals given in violation of the GO 111 and which obstruct the water flow or cause air or water pollution and pass such order or orders.’ A miscellaneous petition bearing WPMP No. 11975 of 2007 was filed in the aforesaid writ petition praying therein to ‘direct the respondents to stop all the development activity including construction works, road laying etc. within 10 KM radius of the Osmansagar and Himayath Sagar lakes’. The High Court of Andhra Pradesh passed a status quo order vide its order dated November 20, 2012.

5.5        The National Green Tribunal (“NGT”), Principal Bench, New Delhi vide its order dated December 19, 2018 passed in original application bearing OA No. 531 of 2018 (earlier OA No. 64 of 2016 (SZ)) filed by the Human Rights and Consumer Protection Cell Trust against the State of Telangana and the Regulatory Authorities inter alia observed that, (a) in accordance with the order passed by NGT, Southern Zone, Chennai vide its order dated December 15, 2016, the Government constituted a High Power Committee for conducting a comprehensive study on various aspects relating to GO 111 including the impact of the existing developments in the 84 notified villages near the two lakes, and importance of GO 111, considering the present scenario and future developments of Hyderabad, and the High Power Committee was to submit a report, accordingly, (b) the High Power Committee caused inordinate delay in submitting the report to NGT. The NGT, Principal Bench, New Delhi while disposing the aforesaid application vide its aforesaid order dated December 19, 2018, gave direction to (i) the State respondents / Government to submit the report prepared by the High Power Committee within six (6) months from the date of issuance of the said order (i.e. December 19, 2018), and (ii) prohibit all other constructions / activities falling within the areas prohibited in GO 111, until such decision is taken by the Government, and is duly notified.

6.         Sketch Map:

6.1       The sketch map prepared by the Telangana State Pollution Control Board clearly identifies the (a) 84 villages as set out Annexure – 1 to GO 111, and (b) the area covered within the 10 kms radius of the two lakes Himayat Sagar and Osman Sagar.

7.         Conclusion:

In view of the above, while GO 111 prohibits (a) polluting industries, major hotels, residential colonies or other establishments that generate pollution in the catchment area of the lakes upto 10 kms. from full tank level of the lakes as per the list set out in Annexure – I of GO 111, (b) polluting industries within 10 Kms., radius (in both upstream and downstream side of the lakes) to prevent acidification of lakes due to air pollution; and (c) location of industries in the prohibited zone, the answer to the issues pertaining to (a) impact of the existing developments in the 84 notified villages near the two lakes, and (b) importance of GO 111, considering the present scenario and future developments of Hyderabad, will depend on the report to be submitted by the High Power Committee appointed by the State Government, and the decision which is taken by the State Government, based on such report. As per the NGT order, till such decision is taken and is notified by the State Government, all constructions / activities falling within the areas prohibited in GO 111 shall continue to be prohibited.

The views and opinions expressed in this article belong solely to the author and do not reflect the position of Tatva Legal Hyderabad.

[1] (1999) 2 SCC 718

[2] [2000]Supp5SCR249

[3] 2004(1) ALT500