The respondents were conducting a tire reconditioning unit. The building was situated in a residential area and very close to the residential house of petitioner. The petitioner approached the Sub Divisional Magistrate for an order to stop the functioning of the Unit.
She contended that a large number of tires were melted in a very high temperature. Sulpher, Rubber and other chemicals were used without any precautionary measure and it caused serious health hazards to the members of the family of the petitioner.
The Environmental Engineer of the Kerala Pollution Control Board submitted a report after inspection the unit stating that the directions given by the Pollution Control Board were not implemented by the respondents and consent as provided under the Air Act was refused by the respondents. The only solution to solve the problem was to shift the Unit to a suitable place.
The Sub Divisional Magistrate passed an absolute order under Section 133 of the Code of Criminal Procedure to stop the functioning of the unit. It held that even after giving ample opportunities respondents failed to adduce evidence or to prove that satisfactory Air Pollution Control measures as stipulated by the Pollution Control Board were taken.
Respondents challenged that order before the Sessions Court. The Sessions Court held that it was for the petitioner to adduce evidence in support of the claim that there was nuisance, and set aside the order of the Sub Divisional Magistrate.
This petition was filed challenging that order. The Petitioner contended that the onus of proof was on the respondents to show that the functioning of the Unit did not cause any air pollution or nuisance and the burden was wrongly cast on the petitioner.
The court quoted A.P. Pollution Control Board v. Prof M.V. Nayudu (1999) 2 SCC 718 holding the following:
“It is to be noticed that while the inadequacies of science have led to the Precautionary Principle, the said Precautionary Principle in its turns, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injurious effect of the actions proposed, -- is placed on those who want to change the status quo. This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the change would be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore it is necessary that the party attempting to preserve the status quo by maintaining a less polluted state should not carry the burden of proof and the party, who wants to alter it, must bear this burden.”
The court was of the view that the Precautionary Principle suggested that where there was an identifiable risk of serious or irreversible harm, including extinction of species, widespread toxic pollution in major threats to essential ecological process, it may be appropriate to place the burden of proof on the person or entity proposing the activity that was potentially harmful to the environment. So also the required standard was the risk of harm to the environment or to human health.
It concluded that when the respondents were functioning a unit which was alleged to be functioning without complying the conditions provided under the Air Pollution Act and that too even after rejection of the consent sought for under the Air Act, the burden was definitely on the respondents to establish that the functioning of the unit was not causing any nuisance. The finding of the Sessions Court was set aside.