Applications were filed by the brick kiln owners of Delhi for modification of the order in which the applicants had been directed to surrender the land without being paid any compensation. In the earlier order of the Supreme Curt in 1996, industries which were placed in category H, according to Delhi Master plan 1990 were required to close down and /or to be shifted out of Delhi within three years of the master plan coming into effect. In the Master Plan of 1990, brick kilns were not shown as a category H industry. But the Delhi pollution Control Committee in their report submitted to the Supreme Court on 1996 apprised the fact that 246 brick klin are operating in NCT of Delhi. While ordering closure and shifting of these industries in Delhi the Supreme Court in their earlier judgement had directed that the use of the land which would become available on account of shifting/relocation of brickkilns shall be permitted in terms of the order of 10th May, 1996. It was also stated that that brickkilns shall be given incentives and brickkiln should shift to fly ash technology. The court in their order held that with the closure of brickkilns or the change in use to fly ash technology, the owners of the land in which they are situated would not be under any obligation to surrender the land. To that extent the order of 26/11/96 got modified. The court also made it clear that this order will not apply to those brick klins owners who have availed this court order dated 26/11/96 and have benefitted in the same in the matter of relocation.

Comdr. Sureshwar D.Sinha and Ors v. Union of India nad Ors (2000 6 SCALE 146 Order of August 4, 2000)

The Supreme Court in their earlier order on Yamuna Pollution had asked the Ministry of Environment and Forests, New Delhi to apprise them the necessary steps taken by the Government on cleaning river Yamuna. In the affidavit the Deputy Secretary of MoEF stated that a committee constituted for this purpose has reiterated that 2005 may be treated as the cut off point for cleaning of Yamuna in Delhi. The court asked the Additional Solicitor General to explain the court on the next hearing as to why despite orders having been passed regarding cleaning of Yamuna will continue to be polluted till 2005. Interim report filed by the Committee constitute by the Court indicates that water harvesting is under way. Addition Solicitor General informed the court that check dams have been constructed and as a result that of there has been a positive impact and the water table at some places has gone up to 2 mts. He submitted that with regard to the water harvesting in certain blocks of Vasantkunj, the proposal of the committee was that there should be active participation of the residents and with this aim in view it is proposed that 50 percent of the expenses to be incurred in water harvesting, in those blocks should be contributed by the owners of each flats. The amount involved would come rupees1000 per flat. The court issued notices to the presidents of the respective welfare association to show cause why they should not direct the payment of the said amount by flat owners. The court also clarified that Delhi Development Authority is at perfect liberty to set up any other projects in any other area to clean river Yamuna

C. Kenchappa and Ors v. State of Karnatak and Ors 2000 AIR 2579

The Public Interest Litigation filed by the inhabitants of Hoodi, Pattandur, Nallurhalli, and Kundalhalli villages of K.R. Puram Hobli, Bangalore South Taluk questioned the validity of notification under section 3(1) of the Karnataka Industrial Area Development Act and Sought for a writ of certiorari for quashing the order made by the respondent in favour of certain industries. The petitioners contended before the Court, that part of the land notified for industrial purpose is Gomal land and other part falls under the category of green belt of compressive plan and residential area. They pointed out before the court that the Gomal land, if converted to residential area, the village will loose the land reserved for grazing their cattle and the same will cause hardship to the cattle. The prayer before the Court was the Gomal and the land reserved for residential purposes in the green belt area should not be allotted and acquired for non agricultural purposes including industrial purposes. The respondent in their objection filed before the Court stated that though these lands are Gomal lands, but the said land is not used as Gomal land as urbanization has spread in those areas and number of industries have come up in the are. They also told the court that they have power under various provisions of law to acquire such lands after complying with the requirement and they have complied with same. The company to whom the site was given also assured the court that they are going to establish a research and development project to be built as per GE's world class environmental health and safety standards employing atleast state of the art technology for waste handling and disposal. The court considering the importance of environment and ecology and rights of a citizen to have pollution free air and water and various decisions of the Supreme Court observed that in order to maintain ecological equilibrium and pollution free atmosphere in the villages, the authorities under KIADB Act are to leave 1 km as buffer zone from the outer periphery of the village in order to maintain a green area. The court without interfering with the acquired land for one industry, directed that whenever there is acquisition of land for industrial purpose or commercial purpose or no agricultural purpose, except residential areas, the concerned authorities must leave on km of the area from the village limit as a free zone or green area to maintain ecological equilibrium.

Goa Foundation and Ors. V. State of Goa and Others W.P. No. 102/1996 decided on 3rd and 4th July, 2000 (unreported)

The petitioner challenged the order of the Goa Govt. Approving demarcation of High Tide Line. The reason stated in the petition was such demarcation is not in consonance with the CRZ Notification, 1991. The petitioners contended that for several years the respondents have been following HTL demarcation which is as same under CRZ Notification 1991 as amended on 1994. Certain resort developers who have raised construction within the 200 meters zone had sought to raise dispute about the demarcation of HTL in and attempt to regularize their illegal constructions. The State Govt. without consulting the MoEF, Government of India has taken the assistance of surveyor General for demarcating HTL lines. But the surveyor General has demarcated on HTL for approximately 27 km of Goa State from Valsao to Cavelossim beach stretch in South Goa. The other part of Goa coast HTL demarcation was not done by surveyor General of India. The HTL drawn for the aforesaid stretch is at variance with HTL demarcation required under CRZ. There are now two different HTL lines for different areas of Goa only one of which meets the provisions of CRZ notification. The allegation of the petitioner is that the HTL drawn by surveyor General is on average 40-60 meters closer to sea. Developers have the advantage of constructing resorts closer to the sea and sand dunes in the 27 km stretch on account of this. The State Government has not authority to allow such construction by permitting those structures as there are two HTLs in the same state. It was also pointed before the court, that the power under the CRZ is available only to the demarcating authority to e appointed by Central Government and it is not the surveyor General of India. After perusing, the records and arguments of both the parties, the Panaji bench of High Court of Mumbai declared the order the State Government as null and void and made the prayers of the petitioners absolute.

M/s Chandmari Tea Co. and another v. State of Assam and others (AIR 2000 Gauhati 13 )

Seven writ petitions were filed in the Assam High Court challenging the various notifications issued by the Govt. of Assam notifying extension of the territory of Burachapari Reserve Forest and Kaziranga National Park as per the schedule mentioned in those notifications. Some of the petitioners have also challenged the cancellation of grazing permits and prayed for a direction to provide for alternative pasture ground for grazing their cattle. The High Court clubbed all the all the writ petitions and disposed the matter through a common judgement as the facts and points of law involved in these cases were common. In one petition the petitioner challenged the notification issued by the regional forest officer, Bagori under by which the petitioners were asked not to proceed with the Tea Plantation in the area in question which was handed over to the Forest Department by the Revenue Department for the purpose of the movement of wildlife to take shelter in the adjacent hills during the rainy and floor season. The petitioner contended before the court that the petitioner company had been running the tea estate for sixty years and carrying on plantation and manufacturing of tea in the said Tea Estate. Out of total garden land of 2538 bighas, 2189 bighas are periodic patta land belonging to the petitioner and the remaining 349 bighas are government land in respect of which the company has been paying revenue since 1935. It is further contented that the settlement of the said land is under consideration by the Government. In 1977 about 37 bighas of land has been acquired by the government for the purpose of laying pipeline by Oil India Limited and tea bushes worth lakhs of rupees were destroyed. It seems from the facts of the case that the petitioner company had taken a huge amount of bank loan for the tea plantation. Under section 35 of the Wild Life Protection Act, 1972, the Government incorporated certain areas of Kanchanguri village measuring about 89.754 hectares into Kaziranga National Park. It is contented by the petitioner that the description given in the notification was confusing and incorrect. Though as per the same notification no portion of the garden land of the petitioner falls in the Kanchanguri village but references were made to certain areas crossing the boundary of the petitioners tea estate. The petitioner stated that no opportunity of hearing was given to him. Again the Secretary Forest Department issued a notification under section 35 of the Act where no reference was made as to the petitioners tea estate. Even the Government circular issued by the revenue department did not disturb the petitioner till the issuance of the impugned notification. In the mean time the petitioners claim for the settlement of land in question is pending. The petitioner further contended that the transfer of land in question from the Revenue Department to The Forest Department could not take place when the prayer for settlement of land was under consideration. The Collector and the Sub Deputy Collector of the concerned region had submitted a report in favour of the petitioner recommending the settlement of the aforesaid land in favour of the petitioner. In the second petition the petitioner was the President of a ME School of village Thutechapari Dist. Sonitpur. He challenged the notification issued by the Commissioner, North Assam division, directing him to showcause with all papers and documents as to why a right and title of the school in respect of the land in its occupation should not be declared illegal and should not be cancelled. The petitioner contended before the court that the land in question was allotted to the school by the Sub-Divisional Officer of Bishwanath Division and hence this notice by the respondent was illegal. In the third petition the petitioners were the Managing Committee members of two lower primary schools. They challenged the notice issued by the Commissioner, North Assam Division, regarding the land of the school. The petitioner were placed before the court the records of the lands which were allotted by the Government for the establishment of the schools. They contended that if the land were taken away under Section 20 of the Wildlife Act, 1972, the students, mostly belonging to schedule cast community will suffer immensely. In the fourth petition the petitioners has challenged the process of inclusion of two areas within the boundary of Kaziranga National Park. The petitioners stated that the village of the petitioner occupied the land in question by paying taxes and the lands were settled in their favour on annual patta basis by the Deputy Commissioner in the year 1967. The grievance of the petitioner was that the notification of the Government declared an area of approximately 40.50 hectares within the area of Kaziranga National Park under Section 35 of Act 1972 as reserve forest. Despite the villagers filing the representation against the notification, the forest department had attempted to evict the villagers. Against the eviction process, the petitioner preferred a petition before the court and the Division Bench of the court directed the institution of an enquiry as per the notification, and ordered that during the pendency of the enquiry the petitioner should not be evicted. The petitioner alleged that no enquiry had been conducted by any authority as it and the villagers are still under threat of being evicted from the land in question any time. In the fifth petition the petitioner challenged the notification issued by the respondent under section 26-A(i) of the 1972 Act declaring the Burachapri Reserve Forest to be wildlife sanctuary and also prayed for a direction restraining the respondents from evicting the members of the petitioner societies from the land in the respective individual possession. The petitioner was representing 2000 people who were engaged in the business of cattle rearing and supply of milk under professional graduates and had been living in the area for over 80 - 90 years with semi-permanent structure. The petitioner continued before the court that after conversion of Burachpari grazing reserve into reserve forest in 1975. The members of the petitioner society continued to remain in the reserve forest with the limited rights privileges and concessions they were issued grazing permits on payment fees. In the sixth petition the petitioner challenged the notification in which the government had ordered of cancellation of grazing permits In the seventh petition the petitioners stated that they had been rearing their cattle in chars and chaprasis by establishing cattle sheds. The Government of Assam Notification declared the char occupied by the petitioner to be included in the Kaziranga National Park. The petitioner prayed for the settlement of land under their occupation. The government contended before the court that in all the seven petitions false claims had been made their cases would not stand before the court. All the villagers had encroached the government land on one pretext or the other and asked for settlement of land in dispute. The court after going through the different sections of the Wildlife Protection Act, Land Acquisition Act and Forest Act and the Constitutional protection relating to protection of forest and wildlife of the country examined whether the declaration made by the government to convert the reserve forest into wildlife sanctuary was made without inviting claims and objections in compliance with the statutory provisions. The petitioners alleged before the court that the declaration made by the government was made surreptitiously, behind the back of the people in violation of the statuory principles and natural justice. The court after going thorough the records observed that while adding the areas in question to the national park-sanctuary, the government had followed the due process of law by inviting objections and claims and also decided to compensate them in accordance with law . The court directed the government to proceed adding the areas in question and complete the process of determination of rights and acquisition of land or rights as contemplated by the Act and dismissed the claims of the petitioners.

D.K. Joshi v. Chief Secretary, State of UP AIR 2000 SC 384

The petitioner, an inhabitant of Agra towns filed the writ petition alleging that the supply of drinking water in Agra was extremely polluted and it was unhealthy for human consumption. The petitioner also stated in the petition that despite several legislation conferring powers and duty on different agencies to combat pollution, these authorities had not exercised their powers as a result of which the citizens of Agra were suffering. This petition was filed in 1992 After the issuance of court notice, the concerned authorities had filed their affidavits. The court after a perusal of the affidavits found that some initiatives had been taken by the authorities in discharging the statuory obligations but they had not taken adequate steps to prevent and control pollution. NEERI was called upon to submit a report in which it indicated the long term measures which could be taken in relation to the supply of drinking water as well as sewerage and drainage system and disposal of solid waste in the city of Agra. The court had also passed several orders prior to these orders to the State Government of UP to take definite steps in the supply of drinking water, providing adequate sewerage and drainage system and providing measures for disposal of solid waste. The government submitted many reports in the court. As the case was pending before the Supreme Court for more than seven years the court found it necessary to issue certain directions and dispose the writ petition. The court directed the State Government to setup a monitoring committee under the Chairmanship of Commissioner of Agra Division. The monitoring committee would be authorized to take the help of any other person whom it considered necessary to implement the reports submitted by NEERI, expeditiously. The notification forming the committee would be issued by the State of U.P. within three months from the date of receipt of the Supreme Court order. The monitoring committee would also be entitled to examine the money that was being spent in each of the projects and ensure proper utilization of the money. The Court also stated in their order that if the committee felt that action was required to be taken by the State Government in respect of some officers or organizations of the State, the committee could can recommend the same to the Chief Secretary of U.P. who shall thereafter take appropriate action as required under law.

Bijayananda Patra and Ors vs. District Magistrate, Cuttack and ors (OJC No.3166, 4281 and 7608 of 1997)

Unreported Judgement' The Public Interest Litigation relates to noise pollute in different parts of State of Orissa caused due to use of high sounding explosive fire works and blaring sound producing devices and the effect of the resultant noise pollution. It was submitted on behalf of the State Pollution Control Board that the State of Orissa has Fire Works and Loud Speaker (Regulation) Act 1958 for the purpose of regulating display of explosive fire works and use of loud speaker. Section 3 of the Act prescribes the restricted zones and time period for use of loud speaker and display of explosive fireworks within permissible time and also provides that permission for the same had to be obtained for its use within the restricted use. Contravention of any of the provision of the Act invites penalty by way of imprisonment and fine. The enforcing authority under the said Act is the District Administration and the Pollution Control Board has no power to intervene in this matter. The High Court after discussing about the intention of the enactment of specific pollution control legislation observed that noise code regulating all aspects of noise pollution should be the immediate concerns of the Government. As the problem of noise pollution has already crossed the danger point and noise like a smog is threatening as a slow agent of death. The Court directed the State Government to take some measures in curbing the noise pollution. (i)The prescribed standards regarding noise by Government of India may be enforced strictly in letter and spirit. ii) Separate courts regrading noise pollution may be established. (iii)The cases should be decided within a prescribed time-limit.(iv)All District Magistrates and Sub-divisional Magistrates should be empowered to issue prohibitory orders under Section 144 of the Codes of Criminal Procedure, 1973 limiting the hours of loud speakers in religious places and for other social gatherings and functions. (v)The subject of environment protection may be made compulsory at school, college and University levels.(vi)The press and media should play a constructive role to highlight disastrous effects of noise pollution and its remedy. (vi)The District Administration and the State Pollution Control Board shall work out the modalities to prevent catastrophic effect of noise pollution by ensuring strict compliance with the statutory provisions, scanty though they are.(vii)Both Central Government and State Government should consider the desirability of having adequate legislative measures to prevent this fast growing menace which, though it appears to be 'silent' has in fact potentialities of producing a future generation of deaf persons. (ix)Permanent monitoring bodies should be appointed to make periodic review of the situation and suggest remedial measures. The composition of such a body has to be determined by the State and Central Government.

Suo Motu v. Vatva Industries Association Ahmedabad and Others AIR 2000, GUJ 33

Suo Motu action was taken by a Division Bench on the basis of a note prepared by an Assistant Environmental Engineer of the Gujarat Pollution Control Board. The note was directly submitted to the High Court through the Board's Counsel, with a request to take action against the defaulting unites and issue necessary directions to the respondents to take steps to stop unauthorized movements/ disposal of waste by their member unit. Moreover, it was noted that during the visits and inspections Board officials observed huge quantities of hazardous waste being dumped near Ramol Village. Precedents were cited for court's actions in similar circumstances. Admitting the note as a petition The counsel for the Board was directed to investigate into the facts against the proprietor of the dumping site as well as the persons responsible for dumping the industrial wastes. The court also directed the defaulting industries to pay Rs. 20,000 each for the default committed by them. In the order the court observed that it was the function of the Board and its officers to take action under the Act when they noticed huge quantifies of hazardous waste dumped and they were not required under the statute to bring it to the notice of the High Court for seeking directions on the units to stop unauthorized movements and/or disposal of waste. Otherwise, such nefarious activities by the polluting units would continue unabated under the pretext of pendency of the matter before the court.

U.P. Pollution Control Board Vs. M/S Mohan Meakins Ltd., and Ors 2000(2) SCALE

The Special Leave Petition before the Supreme Court was related to trade effluents discharged by an industrial unit in river "Gomati", a tributary of Ganga. The basic question for consideration before the Supreme Court was to consider whether the session judge, Lucknow was in error in quashing the issuance of problems by the trial court.

The Supreme Court in on Municipal Corporation of Delhi v. Purushotham Das AIR 1983(1) SCC 9. Where it was pointed out that the active role played by the directors can make the directors of the company liable. The Court observed that when the sample trade effluents collected by the Pollution Control Board Officials from the drain just outside the plant inside the factory and from the irrigation plant revealed that the composition effluents were beyond the standard laid down for the purpose, there was no reason why the company would not be punished for violating section 24 of the Act. The directors of the company in this case are guilty of offence under section 43 of the Water Act. On the submission made by the Counsel for the Company to discharge the director's of the company on the ground of lapse of a long time, the Court observed that lapse of such long period cannot be a reason to absolve the respondents from the trial. The Court observed that the discharge of noxious polluting effluents to streams inflicts injury on the public health at large, and causes irreparable impairment on the aquatic organisms, and imposes deleterious effect on the life and health of animals. The Court said that it cannot deal with the prosecution of the offences under this Act in a casual routine matter. The Court in their order set aside the impugned judgment of the High Court and directed the lower court to proceed with the trial and dispose of the same as expeditiously as possible.

Centre for Social Justice [Jan Vikas] v. Union of India Special Civil Application 8529/99 Date of order 17/2/2000.

Centre for Social Justice [Jan Vikas] v. Union of India Special Civil Application 8529/99 Date of order 17/2/2000. The petitioner, a voluntary organization working in the area of environment filed a Public Interest Petition challenging the manner in which notifications issued by the Government of India under Environment Protection Act 1986 were not being complied with in matters relating to the grant of environmental clearance. The petition also challenged the environmental clearance given to the Dhuvaran Thermal Power project on the ground that the public hearing proceedings were ab initio void. In this respect, the petitioner asserted that notices for public hearing in respect of applications made by 20 units for environmental clearance, certificates were attended by the representatives of the petitioner's organization. It was found that the public hearing process was defective and not serving the purpose for which the public hearings were organized by the authorities. The petitioner prayed before the court, to enunciate correct principles regarding the scope of public hearing as provided in the aforesaid notification. The petitioner submitted before the court that the authorities were holding public hearing at district quarters and the victims of developmental activities were not in a position to attend the hearing. So the venue of the public hearing should be fixed either at the site of the proposed project or at the office of Gram Panchayats of the concerned village. It was alleged by the petitioner that the notification for public hearing was published in newspapers having comparatively less circulation but having official patronage. The petitioner also alleged that the executive summary required to be furnished by the project proponent was very often not available at the local level. Due to lack of access to information the local participation in the public hearing is minimal. The petitioner submitted that there was no quorum in a public hearing meet and sometimes there were no technical and qualified persons present on the panel. The minutes of the public hearing were either not recorded or not provided to the participants of public hearing. So the persons who had raised objections before the public hearing committee were not aware whether their objections had been recorded and considered. The petition also stated that since authorities did not communicate the grant of environmental clearance certificates to the objectors, the statutory right of preferring an appeal under National Environment Appellate Authority Act 1997 was illusory. The respondents in the reply stated that all the norms of public hearing had been complied with and no illegality or fault had been committed by the panel in respect of public hearing. The Court after going through the submissions made by both respondents and petitioner issued a series of directions to the State Government. The gist of the orders, the venue of the public hearing had to be easily accessible to the public.

1) The venue of the public hearing had to be made easily accessible to the public

2) The State Government had to ensure that the notice of the public hearing was publicized effectively through vernacular papers published locally as well as through the panchayats etc.

3) A minimum wait period of 30 days from the date of notice of the hearing was prescribed before holding the actual hearing. Direction to make available, summary of EIA reports in local language was also prescribed for the GPCB.

4) A compulsory quorum for the committee was prescribed which included half the members as well as the compulsory presence of the officers from the GPCB and the department of Environment and Forests and three Sr. citizens.

5) Ensuring that the minutes of the public hearing as sent to the Environmental Impact Agency or the MoEF was made available even if a nominal fees was charged for the same. It also issue direction to ensure the clearance certificate were made available to the public and to publish the gist of the same in Newspapers. The court also issue directions with respect to the method in which the GPCB could generate some revenue to cover the expenses. While the judgement reiterates the EIA Notification, some ambiguous aspects have been clarified.

Center for Social Justice [Janvikas] V. Union Of India. Spl. C. A, GJLR Vol. XLI (3) 2000, 1997
J. M. Shah and J. R. R Tripathi, JJ.

This petition under Art. 226 of the Constitution, the Center for Social Justice [a public trust registered under the Bombay Public Trusts Act, 1950 which is engaged in various activities relating to social justice and human rights since 1994] has challenged the manner in which notification issued by the Government of India under the Environment [Protection] Act, 1986, in the matter of grant of environmental clearance are not being complied with in letter and spirit. The petition also challenges the environmental clearance given by the state government to the Gujarat Electricity Board, Dhuvaran, Thermal Power Project, Anand on the ground that public hear petition. It is submitted that although the statutory provisions provide for public hearing, the manner in which the respondent-authorities are purporting to implement g, but it ing proceeding were ab initio void. The petitioner also prays for certain directions to the respondent authorities about the manner in which the public hearing should be conducted and public hearing should be made effective and meaningful so as to achieve the object of the EP Act, 1986.

It is on account of the difficulties faced by the petitioner-trust at the time of participating at such public hearing in respect of 20 units that the petitioner-trust has been constrained to file this petition. It is submitted that although the statutory provision provide for public hearing, the manner in which the respondent -authorities are purporting to implement the provisions is such that the public hearing does not becomes merely a formality and the entire idea of inviting local people to participate at the hearing is frustrated.

The court thus made the following observation:

1. Venue of Public Hearings:

The District Collector is the Convenor of the Committee, and as a matter of practice, the Collectors are holding such public hearings at the district head-quarters. Considering the distance between the district head-quarters and the site at which the project is going to be put up and considering the fact that the persons who are likely to be most affected by the environmental degradation are people belonging to the lower economic strata of the society, it would not be unreasonable to expect that the G.P.C.B. and the concerned authorities will hold the public hearings at places near the project site or the affected village. Even if, there cannot be any hard and fast rule about the venue of such meetings but it appears to us that looking to the comparatively less distance between the taluka head-quarters and the villages where such projects are being put up, it would be more convenient for the local people if such public hearings are held at least at the taluka head-quarters. This will also take care of the argument on behalf of the G.P.C.B that the project may cover more than one villages.

As regards the period of notice, it is submitted that the period of public notice regarding public hearing should be at least three months.

2. Publication and Intimation:

As regards the newspapers in which the public notice for such public hearings are to be published, the Rules specifically provide that the publication has to be made in atleast two newspapers having wide circulation in the area. The purpose of publication is obvious that the people likely to be affected must be informed about the public hearing at which they can raise their objections or make their suggestions. This purpose would not be served if the notice is published in any obscure newspaper.

Another facet of wider publication is that there are many semi-literate or even literature persons who may not read newspapers, but they may get information about the proposed project, if the public notice is sent by the G.P.C.B. to the concerned Gram Panchayat also, as the members of the Gram Panchayat would bring it to the notice of the local people.

3. Access to Documents:

While the G.P.C.B. is ready and willing to supply copies of the executive summary to the Non-Governmental organisations approaching the G.P.C.B. such reports are not being made available by the local offices designated in the notification on the ground that the access means only perusal and not the copy of the report. It is obvious that looking to the nature of the executive summary and the nature of the public hearings, it would not be sufficient for the local residents only to read the executive summary, even if it is in Gujarat. Copy of such summary must be made available to the persons who ask for such summary for which there may be a nominal charge, if at all required, so as to enable the local residents and the association existing in the filed of environment to participate at the public hearings.

Learned Counsel for the petitioner submits that the executive summary is prepared by the unit and since the unit is otherwise also required to submit the environmental impact assessment report to the G.P.C.B., the summary of environmental impact assessment report must also form a part of the executive summary as that is going to be a part of the discussion at the public hearing.

4. Quorum at the Public Hearings:

It is obvious that if a large number of members of the Committee are absent, the public hearing may become illusory. In the instant case, the notification prescribing the procedure for public hearing requires, inter alia, appointment of an officer of the G.P.C.B., an officer from the department of Environment and Forest, and three senior citizens of the area nominated by the District Collector. If all these persons are absent, the Committee will only consist of Government/Panchayat officers and the very purpose of nominating the former categories of persons on the Committee would be frustrated.

To put it differently, at least the officer of the G.P.C.B., the officer from the Department of Environment and Forest and at least one senior citizen nominated by the Collector will have to remain present in order to prevent the public hearing from being rendered invalid.

5. Nomination of persons to the Panel:

Another aspect which is required to be considered is that while nominating three senior citizens on the Committee, the Collector shall also consider that at least one of the three senior citizens (not necessarily above the age of 65 years) should have some credentials on the issues of environmental concerns.

6. Minutes of the Public Hearing:

Learned Counsel for the G.P.C.B. has stated that if and when any person approaches for copies of such minutes, such copies are being supplied.

It is not possible to make any hard and fast rule but the Committee must keep in mind the spirit of the notification for public hearing and particularly to the object for which the public hearing and particularly the object for which the public hearing is to be held.

7. Environmental Clearance Certificate:

Regarding the environment clearance certificate, it is obvious that if the persons who have participated at the public hearing or other persons who are aggrieved by action of any other authorities of the Central Government are desirous of filing an appeal before the National Environmental Appellate Authority Act, 1997, they would not be in a position to file such appeal, if the authorities do not make them aware that a particular unit is granted the environmental clearance certificate.

It is true that it is not for the Court to examine the merits or demerits of a policy laid down by regulation-making body, but in the instant case, the petitioner is not challenging the wisdom of any policy or the measures enacted by the rule making authority for implementing that policy. The grievance of the petitioner is that in spite of the fact that the rule making authority has laid down the policy and has provided the measures for implementing that policy, on account of the wooden-headed and arbitrary approach on the part of the implementing authority, the purpose of the public hearing is not being achieved, and that, therefore, the petitioner is not challenging either the notification issued by the Central Government or the resolution passed by the State Government for implementing that notification.

This Court does not propose to ask the Central Government or the State Government to amend any notification, but when the Court finds that while exercising the power conferred on it, if the implementing agency does not pay heed to the object for which the power is conferred, the Court can give appropriate directions to the authorities to act in accordance with the notification as interpreted by the Court in light of the submissions made at the hearing of the petition.

R.A. Goel v. Union of India and Others AIR 2000 P& H 320

The Haryana Chamber of Commerce and Industry through its Chairman made a complaint to the Commissioner and Secretary to the Government of Haryana Departments of Industries and Environment complaining against the non-compliance of the Government policy by the Board. The grievance made therein, was, even thought he Government had decided that no NOC would be required to be obtained by a small scale industrial unit except by 17 categories of highly polluting industries identified by the Government of India and 19 categories of highly polluting industries identified by the Board and despite an earlier decision of the Board to the same effect, the regional offices of the Board were issuing notices to various small scale industrial units to obtain consent under the Water Act and under S.21 of the Air (Prevention and Control of Pollution) Act, 1981. This is inspite of those units neither falling in the 17 types of highly polluting industries nor in the 19 types of polluting industries as identified by the Board.

The Chamber requested the State Government to issue instructions to the Board to implement the Government orders and the Government industrial policy and save the small scale industrial units from harassment being caused by this whimsical action of the Board and a copy of this complaint was forwarded to the Board for its comments. To this the Member Secretary of the Board informed the State Government that they had no right to issue such administrative orders as no such orders could be issued in infringement of the Water Act and the Air Act and also the Environment Protection Act. Consequently recommendation was sent by Commissioner of Industries for supersession of Board.

Against this recommendation, for supersession of the board, this case came up fore hearing.

The court held that a detailed perusal of the files of the two departments of the Government leaves no room for doubt that the action of the State Government in superseding the Board was not actuated by any mala fide intentions but was governed purely by the interest of the State for promoting its industrial growth.

Thus the order of supersession passed by the State Government would not be illegal. It was with a view to attract small scale industries and to give impetus to them that the Government at its highest level had decided not to ask for NOCs from them except from the 36 highly polluting industries identified by the Government of India and the Board. The conduct of the Board in insisting for such NOCs from all the industries was against Government policy, which was bound to adversely affect industrial growth in the State. This was leading to discontent in the industry and numerous complaints against the Board were being received by the Government. The Government was, thus, justified in forming an opinion that circumstances existed which necessitated supersession of the Board.

The State Government on examination of the material available with it came to the conclusion that circumstances existed which render it necessary in public interest to supersede the Board, the court observed, it is not necessary to issue any show cause notice either to the Board or to any member thereof.

The Parliament has by necessary implication excluded the principles of natural justice when the Board is to be superseded in public interest for reasons.

As regards the allegations of mala fides made by the petitioner against respondent No. 5- Smt. Sushma Swaraj, the then Union Minister of Information and Broadcasting, the court held that, to say the least, are wholly baseless and misconceived.

Narmada Bachao Andolan v. Union of India & Others SC 319 of 1994, 18 Oct. 2000
[2000] 4 Law Reports of India
Dr. A. S Anand CJI, SP Bharucha and BN Kirpal, JJ.

Constitution of India

Fundamental rights - Decision to build dam taken in pursuance to which land acquired --- whether fundamental rights of oustees violated---- whether forcible displacement of tribals from their land violative of their fundamental rights--constitution of India Art. 21 --- Inter State Water Disputes Act 1956.

Constitution of India

Judiciary - Supreme Court --- Jurisdiction--whether courts, in exercise of their jurisdiction, can transgress into field of policy decision.

Environment protection and Control

Decision to build dam taken - In 1987 ministry of Environment and Forest according environmental clearance to build dam subject to certain conditions - whether environment clearance granted in 1987 without proper application of mind.

Limitation of Actions

Laches--- whether petitioner agitating against dam since 1986 guilty of laches in approaching the court in 1994--whether laches applicable to public interest litigation --- whether in cases of petitions termed as PIL ordinary principles applicable to litigation will not apply

Public Interest Litigation

Decision to build dam taken in pursuance of agreement arrived at between Sates of M. P and Gujarat ---- M. P not ratifying agrrement and matter referred to Tribunal --- Tribunal giving award, giving State of Gujarat right to construct dam upto height of 455 ft---whether issue decided by tribunal binding on states--

Water

Dams--Decision to build dams--- construction of dams commencing in 1987--- whether project in national interest.

The petitioner is an anti-dam organisation in existence since 1986 but has chosen to challenge the clearance given in 1987 by filling a writ petition in 1994. The petitioner which had been agitating against the dam since 1986 is guilty of laches in not approaching the court at an earlier point of time.

The petitioners have been agitating against the construction of the dam since 1986, before environmental clearance was given and construction started. It has, over the years, chosen different paths to oppose the dam. Having failed in the attempt to stall the project the petitioner has resorted to court proceedings by filing this writ petition long after the environmental clearance was given and construction started. The pleas relating to height of the dam and the extent of submergence, environment studies and clearance, hydrology, seismicity and other issues, except implementation of relief and rehabilitation.

The court justified, having entertained this petition with a view to satisfy itself that there has been proper implementation of the relief and rehabilitation measures at least to the extent they have been ordered by the tribunal's award. In short it was only the concern of this court for the protection of the fundamental rights of the oustees under Art. 21 of the Constitution of India which led to the entertaining of this petition.

Any issue which has been decided by the tribunal would, in law, be binding on the respective states. Once the award is binding on the states, it will not be open to a third party like the petitioner to challenge the correctness thereof. In terms of the award, the State of Gujarat has a right to construct a dam upto the height of 455 ft and, at the same time, the oustees have a right to demand relief and resettlement as directed in the award.

The ILO Convention 107 stipulated that tribal population shall not be removed from their lands without their free consent from their habitual territories except in accordance with national laws and regulations for reasons relating to national security or in the interest of national economic development. The said article clearly suggested that when the removal of the tribal population is necessary as an exceptional measure, they shall be provided with land of quality at least equal to that of the land previously occupied by them and they shall be fully compensated for any resulting loss or injury.

From various documents referred to it is more than evident that the Government of India was deeply concerned with the environmental aspects of the Narmada Sagar and Sardar Sarovar Project. In as much as there was some difference of opinion between the Ministries of Water Resources and Environment and Forests with regard to the grant of environmental clearance, the matter was referred to the Prime Minister. Therefore, series of discussions took place in the Prime Minister's Secretariat and the concern of the Prime Minister with regard to the environment and desire to safeguard the interest of the tribals resulted in some time being taken. The Prime Minister gave environmental clearance on 13 April 1987 and formal letter was issued thereafter on 24 June 1987.

It is not possible, in view of the aforesaid state of affairs, for the court to accept the contention of the petitioner that the environmental clearance of the project was given without application of mind.

Though, there was some slippage in Madhya Pradesh, however, overall works by and large were on schedule. This clearly showed that the monitoring of the catchment treatment plan was being done by the Environmental Sub-group quite effectively.

It is thus seen that there is in place an elaborate network of authorities which have to see to the execution and implementation of the project in terms of the award. All aspects of the project are supervised and there is a Review Committee which can review any decision of the Narmada Control Authority and each of three rehabilitating states have set up an independent Grievances Redressal Authority to take care that the relief and rehabiltiation measures are properly implemented and the grievances, if any, of the oustees are redressed.

The court further held that it is satisfied, as more than adequate steps are being taken by the State of Gujarat not only to implement the award of the tribunal to the extent it grants relief to the oustees but the effort is to substantially improve thereon and, therefore, continued monitoring by this court may not be necessary. The rehabilitation package contained in the award of the tribunal as improved further by the State of Gujarat and the other states prima facie shows that the land required to be allotted to the tribals is likely to be equal, if not better, than what they had owned.

The allegation that the said project was not in the national or public interest is not correct seeing the need of water for a burgeoning population which is most critical and important. Keeping in view the need to augment water supply, it is necessary that water storage capacities have to be increased adequately in order to ward off the difficulties in the event of monsoon failure as well as to meet the demand during dry season.

The displacement of the tribals and other persons would not per se result in the violation of their fundamental or other rights. The effect is to see that on their rehabilitation at new locations they are better off than what they were. At the rehabilitation sites, they will have more better amenities than which they enjoyed in their tribal hamlets. The gradual assimilation in the main stream of the society will lead to betterment and progress.

The courts, in the exercise of their jurisdiction, held will not transgress into the field of policy decision. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution. Even then any challenge to such a policy decision must be before the execution of the project is undertaken. Any delay in the execution of the project means over run in costs and the decision to undertake a project, if challenged after the execution has commenced, should be thrown out at the very threshold on the ground of laches if the petitioner had the knowledge of such a decision and could have approached the court at that time. Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them.

In a democratic set up, it is for the elected government to decide what project should be undertaken for the benefit of the people. Once such a decision had been taken that unless and until it can be proved or shown that there is a blatant illegality in undertaking the project or in its execution, the court ought not to interfere with the execution of the project.

While issuing directions and disposing of this case, two conditions have to be kept in mind, (i)the completion of project at the earliest and (ii)ensuring compliance with conditions on which clearance of the project was given including completion of relief and rehabilitation work and taking of a meliorative and compensatory measures for environmental protection in compliance with the scheme framed by the Government thereby protecting the rights under Art. 21 of the Constitution. Keeping these principles in view, the court issued the following directions.

(1) Construction of the dam will continue as per the award of the tribunal

(2) As the relief and rehabilitation sub-group has cleared the construction up to 90 meters, the same can be undertaken immediately. Further raising of the height will be only pari passu with the implementation of the relief and rehabilitation and on the clearance by the Relief and Rehabilitation Sub-group after consulting the three Grievances Redressal Authorities.

(3) The Environment Sub-group will consider and give, at each stage of the construction of the dam, environment clearance before further construction beyond 90 meters can be undertaken.

The permission to raise the dam height beyond 90 meters will be given by the Narmada Control Authority, from time to time, after it obtains the above mentioned clearances from the Relief and Rehabilitation Sub-group and the Environment Sub-group.

The States of Madhya Pradesh, Maharashtra and Gujarat are directed to implement the award and give relief and rehabilitation to the oustees in terms of the packages offered by them and these States shall comply with any direction in this regard which is given either by the NCA or the Review Committee or the Grievances Redressal Authorities.

Even though there has been substantial compliance with the conditions imposed under the environmental clearance the NCA and the Environment Sub-group will continue to monitor and ensure that all steps are taken not only to protect but to restore and improve the environment.

The NCA will within four weeks from today draw up an action plan in relation to further construction and the relief and rehabilitation work to be undertaken. Such an action plan will fix a time frame so as to ensure relief and rehabilitation pari passu with the increase in the height of the dam.

The Review Committee shall meet whenever required to do so in the event of there being any un-resolved dispute on an issue which is before the NCA. In any event the Review Committee shall meet at lest once in three months so as to oversee the progress of construction of the dam and implementation of the R & R programmes.

If for any reason serious differences in implementation of the award arise and the same cannot be resolved in the Review Committee, the Committee may refer the same to the Prime Minister whose decision, in respect thereof, shall be final and binding on all concerned.

(9) The Grievances Redressal Authorities will be at liberty, in case the needs arises, to issue appropriate directions to the respective states for due implementation of the R & R programmes and in case of non-implementation of its directions, the GRAs will be at liberty to approach the Review Committee for appropriate orders.

Every endeavour shall be made to see that the project is completed as expeditiously as possible.

The court held, When such projects are undertaken and hundreds of crores of public money is spent, individual or organisations in the garb of PIL cannot be permitted to challenge the policy decision taken after a lapse of time. It is against national interest and contrary to the established principles of law that decisions to undertake development projects are permitted to be challenged after a number of years during which period public money has been spent in the execution of the project.

All India Mobile Zoo Owners and Animal Welfare Association v. Union of India AIR 2000 Delhi 449

The petitioner prayed the Court to issue a writ of mandamus directing the Wild Life Warden under the Wild Life Protection Act 1972, for adequate compensation of Rs. 15 to 20 lacs inthe event of the closure of the zoo, as order by the Warden under the Act. The Petitioner's challenge for recognition of their Mobile Zoos under sec. 28(H) of the Wild Life Act. As they had failed, they were left with no other alternative but to surrender the animals before the Wild Life Warden for which they seek instruction from the Court for compensation. The Court after hearing both the parites, held that the petitioners were entitled to compensation as regards animals, the posession and holding of which was not illegal under the Act of 1972, but were surrendered tot he authorites. But as to the holding of animals which was illegal and expressly prohibited under the Act, no such compenstion need to be paid, nor any ex gratia payment could be made, as the petitioners were holding the animals without the permission of the authorities.

Green Decisions- 1999

P.Navin Kumar & Ors v. Bombay Municipal Corporation & Ors [1999 (3) LRI 57]

M.C. Mehta v. Union of India and Ors 1999 [1999(4) SCALE 196]

M.C. MEHTA V. UNION OF INDIA AND ORS Re: Airport Authority of India Ltd. JT 1999 5 SC 18

Wg. Cdr Utpal Barbara & Ors v. State of Assam & Ors (AIR 1999 Gau 78)

The Goa Foundation & Anr v. The Conservator of Forest; Forest Department, Panaji, Goa & Ors. (AIR 1999 Bombay 177)

Mukul Roy vs State of Ors(1999(1) CHN 585)

M.C. Mehta vs Union of India and Ors (Interim Order)(Order dated April 16th, 1999, April 29th 99 and order dated May 13th, 99)

Narmada Bachao Andolan v. Union of India and Others AIR 1999 SC 3345

K. Ramkrishnan and Anr v. State of Kerala and Other AIR 1999 Kerala 385

State of Manipur and Ors v. Chandam Manihar Singh (1999) 7 SCC 503

A.P. Pollution Control Board, Appellant, Prof. M. V. Nayudu (Retd.) and Others etc., Respondents - AIR 1999 SC 912

The Claridges Corbertt Hideaway, Zero Garjia and another v. State of U.P and others (AIR 1999 Allahabad 382)

P.Navin Kumar & Ors v. Bombay Municipal Corporation & Ors [1999 (3) LRI 57]

The petitioners, Indian Heritage Society and others filed a Public Interest Litigation in Bombay High Court praying for an order to set aside all permissions granted by the Municipal Corporation of Greater Bombay and Municipal Commissioner for the construction of new toilet blocks and the demolition of old toilet blocks near the Gateway of India. The High Court dismissed the case stating that it is not a fit case for interference under Article 226 of the Constitution as toilet block is a must for human being at a place which is visited by large number of persons. The Court said that this facility would prevent nuisance because there could be unauthorized use of open spaces around the Gateway of India. In the appeal before the Supreme Court the petitioner did not challenge the construction of the new toilet block or relief for demolition of old toilet block. The main grievance of the petitioners was the observations made by the High Court relating the Coastal Regulation Zone. The High Court had made an observation that the area near the Gateway of India is fully developed up to the shoreline and it is within the Municipal limits of Greater Mumbai. It is already built up and it has been provided with drainage and approach roads and other infrastructural facilities and hence cannot fall within the ambit of CRZ II. The High Court had also observed that in view of Clause 1 of CRZ II it is clear that the building cannot be permitted to the seaward side of the existing roads and proposed Coastal Zone Management Plan. So the construction of toilet block on existing road is not in violation of CRZ II norms. In their order, High Court had also made it clear that once an area is covered under CRZ II it could not fall within the ambit of CRZ I or CRZ III. The Supreme Court as regards the impugned High Court Judgement that the entire city of Bombay would fall within CRZ II held that the observations of the High Court were not warranted. It left the matter for the consideration of notification to the State of Maharastra as it did not find any conflict with regard to substantial laws of CRZ in this petition.

M.C. Mehta v. Union of India and Ors 1999 [1999(4) SCALE 196]

The petitioner filed a public interest litigation in the year 1984 alleging that the foundries, chemical/hazardous industries and the refinery at Mathura are the major sources of damage to the Taj, priceless national monument of India. The Sulphur Dioxide emitted by Mathura refinery and industries when combined with oxygen - with the aid of moisture in the atmosphere forms Sulphuric Acid called Acid rain which has a corroding effect on the gleaning white marble. It was also stated in the petition that industrial/refinery emission brick kilns, vehicular traffic and generator-sets are primarily responsible for polluting the ambient air around Taj Trapezium. The court in their order after 13 years in 1997 held that the emissions generated by coke/coal consuming industries are air pollutant and damage effect on Taj. So the relocation of the industries in the Taj Trapezium is to resorted to only if the natural gas which has been brought at the doorstep of as a substitute for coke/coal. As the Gas Authority of India has already invited the industry to apply for natural gas connection, the industries which are not in a position to obtain gas connections for any reason shall stop functioning with the aid of coke and coal in this area and may relocate them by approaching corporation/government for alternative plots. The court also made several directions in this regard for the protection of the Taj area.

Pursuant to this order the Gas Authority of India Limited filed an application before the Supreme Court to extend the schedule for supply of gas to industries in Zone I of Agra city in such a manner that in respect of cupola - based industries supply of gas by GAIL coincides with the readiness of the consumer industries to draw Gas and to direct non - cupola based industries in Zone I to draw gas latest by September 1999. The application also prayed for a direction to the Secretary PWD Government of U.P. and Secretory/Director General Government of India, Ministry of Surface Transport to grant the permission for underpinning the gas pipeline to the Tumunal Road Bridge within four weeks so that GAIL may be able to the schedule for supply of Gas to Zone II and Zone II laid by the 30th May 98 order of the Supreme Court. As there were 168 industries operating in this area and out of which 115 entered into agreement with GAIL for supply of natural gas the court observed that there is no justification for the other 53 industries to function in this area. It was placed before the court record that the rest are waiting for the technology to be developed by the National Metallurgical Laboratory. The court in their earlier order on May 12th 1999 had issued notice to 79 industries in Zone I requiring them to show cause why they were not availing the facility to be supplied by GAIL so the main question before the court was whether 79 coke/coal industries which are continuously using coke/coal to be allowed to pollute the air in and around Taj Trapezium. The court keeping in mind the NEERI and or Varadarajan report and affidavit filed by the industries directed 53 iron boundaries to be closed forthwith unless they have shifted. The court could not also find any reason for the non-cupola industries for not accepting the natural gas from GAIL and ordered for the closure of the same.

M.C. MEHTA V. UNION OF INDIA AND ORS ( Re: Airport Authority of India Ltd. ) JT 1999 5 SC 18

Hot mix plants; which were treated as hazardous industries were closed with effect from 1997 in pursuance of an order of the Supreme Court. The Airport Authority of India at the Indira Gandhi International Airport, New Delhi filed an application for permission to install hot mix plants in the vicinity of the airport for a period of one year for resurfacing of the runways for the safe landing and take off of air crafts and for smooth handling of aircraft traffic. The application also stated that the resurfacing of the runways was last done in the year 1990-91, while surfacing of the secondary runway was carried out in 1993. It was further stated that due to the constant use of these runways by the ever increasing traffic both domestic and international tracks have developed in the runways due to which certain runways were showing sign of distress, all of which required immediate resurfacing. Owing to an extraordinary exceptional and special circumstances it was prayed before the court to permit the setting up a not mix plant. The Airport Authority also set out a set of undertakings inform of an affidavit to be followed by them.

The important undertakings are ; (1)the hot mix plants shall be at least two kilometers away from populace and residential areas; (2)the hot mix plants shall be fitted with pollution control devices of international standard and shall meet all the requirement prescribed by the Central Pollution Control Board; (3) the hot mix plants shall be used only for the purpose of preparing premix material for resurfacing of runways and not for other purpose. The petitioner placed several documents containing the bad effect of installation of hot mix plants in these areas. The court after going through the submission made by the petitioner and applicant ordered for installation of hot mix plant in the I.G. Airport. The reasoning given by the court was resurfacing of Air Port Runways is a work of national importance and the Air Port Authority of India has already called for global tenders for the job in question in which one of the eligibility criteria is that the firm must possess an adequate capacity environment friendly not mix plant; electronically computerized paver finisher pneumatic and conventional rollers and tools and tackles.

Wg. Cdr Utpal Barbara & Ors v. State of Assam & Ors (AIR 1999 Gau 78)

This case was filed under Art. 226 of the Constitution of India for issuance of an appropriate writ to quash the order of the Additional District Magistrate banning the use of polythene bags throughout the District of Karnrup in Assam. The petitioners in this case were the proprietors of factories for manufacturing and supply of polythene bags. They alleged that the order of the Additional District Magistrate under section 144 of the Code of Criminal Procedure had curtailed their fundamental right to carry on trade and business. In the petition they also contended that they had obtained licences/no objection certificates from the Gauhati Municipal Corporation, District Industries and the Central and State Pollution Control Board. The main issue before the court was whether the Additional District Magistrate had exceeded his jurisdiction under section 144, Cr.P.C. in passing the impugned order banning the use of polythene bags. The Gauhati High Court in its order held that unregulated and indiscriminate use of the polythene bag and its impact on environmental degradation could not be a ground for invoking S. 144, Cr.P.C. by imposing total ban on its use. The single judge bench also made it clear that if the district administration or the State Government considered that a total ban of polythene bag use was required, they could impose it by taking resort to appropriate legislations. The court also categorically pointed out that in the above mentioned facts S.144 Cr.P.C. could be used for a short period but not in perpetuity.

The Goa Foundation & Anr v. The Conservator of Forest; Forest Department, Panaji, Goa & Ors. (AIR 1999 Bombay 177)

A public interest litigation was filed by the Goa Foundation challenging the permission granted by the Conservator of Forests contrary to the Forest (Conservation) Act 1980 for carrying our certain developmental activities in the forest area of village Penha.de Frana of Bartez Taluka of Goa. According to the petitioner, the land in question was a forest land and non forest activity therein was not permissible unless prior permission was taken from the Central Government under the Forest Conservation Act 1980. The petitioner alleged that alterations were made in the survey record for facilitating the residential complex work in the area of 11.275 sq metres. The Court looked into the rival contentions made by the Forest Department by scrutinizing the past record of the land. It also verified the Forest Department instructions for application of Forest (Conservation) Act 1980 to private forest. Tracing the history of the said land the court observed that the construction activity in these areas was for a non-forest purpose and as no approval had been taken from the Central Government in this regard the developmental activity carried out in the area had to be stopped.

Mukul Roy vs State of Ors (1999(1) CHN 585)

The petitioner, the General Secretary of All India Trinamul Congress filed this writ petition praying for cancellation of the election programme in two districts of Darjeeling or to reschedule the Madhyamik and Higher Secondary Examination (as the same was scheduled at the time of election) and alternatively for making suitable relaxation of the ban on use of loud speakers and microphones during the examination period for facilitating the election campaign. It was argued by the petitioner that as the election process had already commenced there was no scope for deferring the election. The respondents also contended that the examinations could not be rescheduled. So the Court was left with the option of considering the co-existence of both the programmes keeping in mind the impact of sound pollution on the environment. In the light of the above mentioned circumstances the Court ordered a total ban on the use of microphones in any residential or mixed residential area and within half a kilometre of such area where the examination was due. It also made clear that microphones fitted with sound limiters could however be used for the purpose of election propaganda outside such area only from 5 p.m. to 7 p.m but maintaining a sound limit not exceeding 45 dB and not affecting the silence zone.

M.C. Mehta vs Union of India and Ors (Interim Order)(Order dated April 16th, 1999, April 29th 99 and order dated May 13th, 99)

Keeping in mind the vehicular pollution in Delhi in the next millennium, a Public Interest Litigation was filed by Mr. M.C. Mehta in the Supreme Court of India seeking various relief's from the court to curb the vehicular traffic in Delhi. On 7th January 1998 a committee had been constituted under the Chairmanship of Sri Bhure Lal known as "Environment Pollution (Prevention and Control) Authority for the National Capital Region and a direction was issued by the apex court to submit a report about the action taken by the committee for controlling vehicular pollution and matters connected therewith. As per its order, dated April 16th, the Court perused the report submitted by the said committee (of April 1, '99). According to the report private (non commercial vehicle comprise 90% of the Nitrogen Oxide (NOx) and respirable particulate matter (RSPM) from vehicular exhaust over Delhi is due to diesel emission. It was estimated that chronic exposure to such toxic air contaminant would lead to 300 additional cases of lung cancer per year. The petitioner has prayed before the court to suspend the registration of diesel vehicles in Delhi until further orders are passed by the court as the automobile industries sought time for examining the proposal made by others with regard to Euro norms. When the matter came up for hearing on April 29th considering the suggestions made by Bhure Lal Committee, Amicus Curie and automobile manufacturers the court forced the Indian Automobile Industries to confirm to the Euro II and Euro III norms. The court in its order directed all private (non commercial) vehicles which conforms to Euro II norm to be registered in the NCR without, restriction. All private (non commercial) vehicles shall conform to Euro I norm by 1st June, 1999. The same type of vehicle shall conforms to Euro II norms to 1st April 2000. This direction will be applicable to diesel and petrol driven cars (private non commercial vehicle). To facilitate registration the court further observed the registering authority may register the vehicle concerned on a certificate of the manufacture duly authenticated by the authorized officer certifying that the vehicle concerned confirm to Euro I/Euro II norms. In its 13th May order the court clarified that restriction imposed on April 29th order would not apply to registration of vehicles which are fitted with Compressed Natural Gas (CNG) kits and ply on CNG only. It is also clarified in this order that Euro I norm for the purpose has been notified by the Government of India through a Notification dated 28.8.97.

Narmada Bachao Andolan v. Union of India and Others AIR 1999 SC 3345

This petition was filed by the state of Gujarat bringing to the notice of the court the reactions of Narmada Bachao Andolan activists in connection with the interim order of the apex court permitting the increase of the height of the Dam to RL 85 metres. The attention of the court was drawn to an article and a book written Ms. Arundhati Roy and interview of Ms. Medha Pathkar appeared in the Hindustan Times. The court after looking into the press releases, the article and certain portions of the book "The Greater Common Good " observed that Prima facie it appears that there is a deliberate attempt to undermine the dignity of the court and to influence the court of justice. The court opined that the litigant must realise that courts cannot be forced by pressure tactics to decide pending cases in the manner in which the concerned party desires. It will be a negation of rule of law if the courts were to act under such pressure. After perusing the book written by Ms. Arundhati Roy who is not a party to proceedings pending in the Court relating to Sardar Sarovar Dam the Court observed that the judicial process and institution cannot be permitted to be scandalised or subjected to contumacious violation in such a degenerating manner in which it has been done by her; It is obvious that she decided to use her literally fame by misinforming the public and projecting in a totally incorrect manner how the proceedings relating to resettlement and rehabilitation had shaped in this court and distorted various directions given by the court during the last five years. Freedom of speech and expression does not include freedom to distort the order of the courts and present incomplete and one side picture deliberately which has the tendency to scandalise the court. The court expressed its unhappiness over the act of the NBA leaders but did not proceed on taking any action against them as it felt that the courts shoulder are broad enough to shrug off their comments and the focus of the court should not shift from resettlement and rehabilitation of the Narmada outsees.

Ramkrishnan and Anr v. State of Kerala and Other AIR 1999 Kerala 385

The write petition was filed in seeking directions from the court to declare that smoking of tobacco in any form, whether in the form of cigarette beedies or otherwise in public places is illegal unconstitutional and violative of Art 21 of the constitution of India. The petitioner also prayed for direction to the respondents to take appropriate and immediate measures to prosecute and punish all persons guilty of smoking in public places. It was placed before the court that epidemiologic and experimental evidence has identified cigarette smoking as the primary cause of living cancer and chronic obstructive pulmonary diseases (COPD). It is also the primary cause of chronic bronchitis and emphysema. Passive smokers also gets the diseases that are caused by smoking. The court looked into the various laws relating to this subject as embodied in Section 268, 278 of IPC Rule 227 (1) d and 227(5) and 22(A) of Kerala Motor Vehicles rule, Section 133 Cr.P.C and Constitutional Provisions. In its judgement the court after giving a brief outline of the importance of protection o environment directed the District Collectors of all the Districts of the State of Kerala who are suo motu impleaded as Additional respondents 39 to 52 to promulgate an order under Section 1339a) Cr.P.C. prohibiting public smoking within one month from today and fiect the 3rd respondent Director General of Police, Thiruvanthapuram, to issue instructions to his subordinates to take appropriate and immediate measures to prosecute all persons found smoking in public places treating the said act as satisfying the definition of "public nuisance" as defined under Section 268 IPC, in the manner indicated in this judgement by filing a complaint before the competent Magistrate and direct all other respondents to take appropriate action by way of display of 'Smoking Prohibited' boards etc., in their respective offices or campuses.

It also issued direction to Addl. Respondents 39 to 52 to issue appropriate directions to the respective R.T.Os to strictly enforce the provisions contained in Rule 227(1) (d) and 227 (5) of the Kerala Motor Vehicles Rules, 1989.

The court observed tobacco smoking in public places falls within the mischief of the penal provisions relating to "public nuisance" as contained in the Indian Penal Code and also the definition of "air pollution" as contained in the statues dealing with the protection and preservation of the environment, in particular the Air (Prevention and Control of Pollution) Act, 1981.

The respondents, repositories of wide statutory powers and enjoined by the statute and Rules to enforce the penal provisions therein are duty bound to require that the invidious practice of smoking in public places, a positive nuisance, is discouraged and offenders visited with prosecution and penalty as mandated by law. Accordingly, the respondents are liable to be compelled by positive directions from this Court to act and take measures to abate the nuisance of public smoking in accordance with law. Directions in the above lines are hereby issued.

Finally the court observed that the continued omission and inaction on the part of the respondents to comply with the constitutional mandate to protect life and to recognize the inviolability of dignity of man and their refusal to countenance the baneful consequences of smoking on the public at large has resulted in extreme hardship and injury to the citizens and amounts to a negation of their constitutional guarantee of decent living as provided under Article 21 of the Constitution of India.

Media print and electronic will take note of this judgement and caution the public about penal consequences of violation of the ban on public smoking.

State of Manipur and Ors v. Chandam Manihar Singh (1999) 7 SCC 503

This special leave petition relates to the appointment and removal of Manipur State Pollution Control Board Chairman. The respondent Chairman Manipur Pollution Control Board was appointed on 16/10/99 to fill the vacancy resulting from the resignation of the erstwhile Chairman. By a notification dated 26/5/97, the Board was reconstituted by the Governor and the Board. Thereafter the Board was reconstituted by the Governor two times. Sometime thereafter certain allegations were made against the respondent under section 6(1) g of the water (prevention and control of pollution act seeking his disqualification on the ground that he had abused his position and his continuance as chairman would be detrimental to the interest of general public. A show cause notice was issued and after considering his reply the Governor directed the respondent to be removed from the office as chairman of the Board. The respondent then filed a writ petition before the High Court of Assam challenging the order the Governor.. The High Court set aside the removal order of the Governor. The State appealed to a Division Bench but could not succeed in altering the Single Bench Order. Before the Supreme Court the appellant state contended that,

(i)the High Court was wrong in acting like a court of appeal and deciding on merits that the respondent had not abused his power (ii)the High Court was wrong in supposing that the term of the Pollution Control Board Chairman of 3 years was to run from the date of his order of nomination dated 16/10/99. To substantiate the two arguments the appellant also placed before the court that the respondent was given reasonable opportunity to meet the charges mentioned against him as mentioned in the show cause notice. The court did not accept this contention of the State and opined that the grievance of the state had become of academic. Regarding the second contention the court took into account the fact that the term of office of a member would be three years from the date of the notification. He would also be entitled to continue to hold office beyond his permitted time till his successor enters upon his office. The law in this regard lays down that a casual vacancy in a Board shall be filled by a fresh nomination and the person nominated to fill the vacancy shall hold the office only for the remainder of the term for which the member in whose place he was nominated to hold office. In the present case the earlier chairman was appointed on 5/5/1995 and resigned on 10/7/96 and the respondent was appointed in his place. Therefore as per the law the unexpired term of his tenure as a substituted nominee chairman would have continued only upto 4/5/1998. The Supreme Court also stated that wherever there is a vacancy which is filled up, the state authorities seem to be reconstituting the entire board when new members or new Chairman inducted. As per law the State Board shall be a body corporate with the name specified in the State Government having perpetual succession and common seat. So even though the State Government has authority to reconstitute the Board from time to time only because some casual vacancy occurs it may not strictly be necessary for the authorities to undertake the exercise of reconstituting the entire board nor could be the said reconstitution be directed to continue until further orders, as the tenure of the other members of the reconstituted board will be governed by subsection (1) of section 4. The court accepted the contention of the State that the High Court was in error in taking view that the tenure of the respondent could have some beyond 4/5/98. As the respondent; at the time of passing of the order of Supreme Court had only less than a month to continue as the Chairman the Court ordered that after his term, it will be open to the appellant authorities to fill up the vacancy of the Chairman in accordance with law.

A.P. Pollution Control Board, Appellant, Prof. M. V. Nayudu (Retd.) and Others etc., Respondents AIR 1999 SC 912

M/s. Surana Oils and Devivatives (India) Ltd., a Public Limited Company, was incorporated with the objective of setting up an industry for production of Castor Oil derivatives. It applied to the Andhra Pradesh Pollution Control Board for grant of ( No Objection Certificate) NOC. The application was rejected by the A. P. PCB. In the ground that M/s. Surana was a polluting industry and that it was not desirable to locate it in the catchment area of the Himayat Sagar Lake. Aggrieved by the rejection, the company appealed to the appellate authority under S. 28, Water Act. The appeal was allowed and the Pollution Control Board was directed to give its consent subject to any conditions it chose to impose. The company then filed a Writ Petition before the High Court for a direction to the Pollution Control Board to implement the Order of the appellate authority under the Water Act. The High Court allowed the Writ Petition . The A.P.P.C.B appealed to the Supreme Court.

In the course of its judgement, the court touched upon the following points;

1) the problems of complex technology vis-a-vis environment courts/ tribunals

2) the uncertain nature of scientific opinions

3) the precautionary principle and the new burden of proof

4) the deficiencies in the judicial and technical inputs in the appellate system under existing environmental laws.

5) the scope for the Supreme Court or the High Courts to refer environmental matters to the National Environmental Appellate Authority,1997 for investigation and opinion.

a) On the problems faced by Environment Courts/Tribunals due to complex science and technology, the court observed that the difficulty faced by environmental courts in dealing with highly technological or scientific data appeared to be a global phenomenon. Lord Woolf's lecture reported in 1992. J. Environmental Law Vol.4, No.1, P1 was quoted by the court. The Courts' ability to handle complex science rich cases has recently been called into question, with widespread allegations that the judicial system is increasingly unable to manage and adjudicate science and technology issues. Critics have objected that Judges cannot make appropriate decisions because they lack technical training, that the jurors do not comprehend the complexity of the evidence they are supposed to analyse, and that the expert witnesses on whom the system relies are mercenaries whose biased testimony frequently produces erroneous and inconsistent determinations. If these claims go unanswered, or are not dealt with, confidence in the judiciary will be undermined as the public becomes convinced that the Courts as now constituted are incapable of correctly resolving some of the more pressing legal issues of our day.

b) The Court observed that uncertainty of scientific opinions had created serious problems for the courts. While scientists could refine, modify discard variable or models when more information became available, Courts had to make choices based on existing scientific knowledge. The 'uncertainty' of scientific proof and its changing frontiers from time to time has led to great changes in environmental concepts during the period between the Stockholm conference of 1972 and the Rio Conference of 1992.

c) The court then referred to the formulation of the precautionary principle and the new burden of Proof. Elaborating upon the dictum in Vellore Citizen's Welfare Forum v. Union of India (1996) 5 SCC 647, the Court observed that the inadequacies of science is the real basis that had led to the precautionary principle of 1982. It is based on the theory that is better to err on the side of caution and prevent environmental harm which may indeed become irreversible.

The Principle of precaution involves the anticipation of environmental harm and taking measures to avoid it or to choose the least environmentally harmful activity. It is based on scientific uncertainty. Environmental protection should not only aim at protecting health property and economic interest but also protect the environment for its own sake. Precautionary duties must not only be triggered by the suspicion of concrete danger but also by (justified) concern or risk potential.

The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including for example, extinction of species, widespread toxic pollution, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment.

It is also explained that if the environmental risks being run by regulatory inaction are in some way "uncertain but non-negligible", then regulatory action is justified. This will lead to the question as to what is the non-negligible risk'. In such a situation, the burden of proof is to be placed on those attempting to alter the status quo. They are to discharge this burden by showing the absence of a "reasonable ecological or medical concern". That is the required standard of proof. The result would be that if insufficient evidence is presented by them to alleviate concern about the level of uncertainty, then the presumption should operate in favour of environmental protection.

d) The Court then surveyed the judicial and technical inputs in environmental appellate authorities/tribunals fell short of a combination of judicial and scientific needs. Things are not quite satisfactory and there is an urgent need to make appropriate amendments so as to ensure that at all times, the appellate authorities or tribunals consist of Judicial and also Technical personnel well versed in environmental laws. Such defects in the constitution of these bodies can certainly undermine the very purpose of those legislations.

The Court opined that the Government of India should bring about appropriate amendments in the environmental statutes, Rules and Notification to ensure that in all environmental courts, Tribunals and appellate authorities there is always a Judge of the rank of a High Court Judge or a Supreme Court Judge -sitting or retired- and a scientist or a group of scientists of high ranking and experience so as to help a proper and fair adjudication of disputes relating to environment and pollution.

The Court held that there is also immediate need that in all the States and Union Territories, the appellate authorities under Section 28 of the Water (Prevention of Pollution ) Act, 1974 and Section 31 of the Air (prevention of Pollution) Act, 1981 or other rules there is always a Judge of the High Court, sitting or retired and a Scientist or group of scientists of high ranking and experience, to help in the adjudication of disputes relating to environ