Green Decisions: Summary of some Important Judgments

For More details contact
Bhat Sairam
'Research Officer'
bhatsairam@mailcity.com

INTRODUCTION

The judiciary has viewed the human rights on one hand and the environmental protection on the other hand as the two faces of the same coin. The judiciary as a guardian of fundamental right has protected the right of each individual in relation to environment under Art. 21 of the constitution.

Majority of the cases covered in the case book are public interest litigations relating to air pollution, water pollution, cess, hazardous waste, mining, sound pollution and so on.

Though the Water (prevention and control of pollution)Act, 1974 was passed for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, and the Air (prevention and control of pollution) Act, 1981 was passed for the prevention, control and abatement of air pollution, the judiciary has given a very important and valuable directions to the appropriate authorities for the purpose of preservation and protection of environment.

An attempt has been made in this section to analyse how some of the judgement have contributed to the enrichment of environmental jurisprudence. This section analyses the contribution of Judges to the jurisprudence of Environmental Law and to the development of international environmental law. The analysis seeks not only to deal with the specific content of each judgement but also to draw a broader picture of views of the Judges towards protection and development of environment and related laws.

Municipal Council Ratlam v Vardhichand and ors. AIR 1980 SC 1622

LK Koolwal v State of Rajasthan and ors AIR 1988 Raj.2

Tehri Bandh Virodhi Sangharsh Samiti and State of UP and ors. 1990 (2) SCALE 1003

Goa Foundation v Konkan Railways Corporation AIR 1992 Bom. 471

M. C Mehta v State of Orissa AIR 1992 Ori 225

Society for Protection of Silent Valley v Union of India [unreported [UP Nos 2949 and 3025 of 1979 of Kerala High Court]

B. L Wadhera v Union of India AIR 1996 SC 2969

Bangalore Medical Trust v B. S Muddappa AIR 1991 SC 1902

Rampal v State of Rajasthan AIR 1981 Raj. 121

Indian Council for Enviro-Legal Action v Union of India AIR 1996 SC 1446

Narmada Bachao v. Union of India AIR 2000 SC 3751

Church of God [Full Gospel] in India v. KKR Majestic Colony Welfare Association AIR 2000 SC 2773

T. N Godavarman Thirumulpad v Union of India AIR 2000 SC 1636

M. C Mehta v Union Of India AIR 1997 SC 734

S. Jagannath v Union of India [1997] 2 SCC 87

Subhash Kumar v State of Bihar AIR 1991 SC 420

 

1. Municipal Council Ratlam v Vardhichand and ors. AIR 1980 SC 1622

The residents of a locality within the limits of Ratlam Municipality, tormented by stench and stink by open drains and public excretions by nearby slum dwellers moved the Sub-Divisional Magistrate under Sec. 133 CrPC to require the Municipality to construct drain pipes with the flow of water to wash the filth and stop the stench towards the members of the Public. The Municipality pleaded paucity of funds as the chief cause of disability to carry out its duties.

The Magistrate gave directions to the Municipality to draft a plan within six months for removing nuisance. The High Court approved the order of the Magistrate, to which the Municipality further appealed to the Supreme Court.

The issue was whether a Court can compel a statutory body to carry out its duties to the community by constructing sanitation facilities?

The Supreme Court through J. Krishna Iyer, upheld the order of the High Court and directed the Municipality to take immediate action within its statutory powers to construct sufficient number of public latrines, provide water supply and scavenging services, to construct drains, cesspools and to provide basic amenities to he public.

The Court also accepted the use of sec. 133 CrPC for removal of public nuisance. A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability.



LK Koolwal v State of Rajasthan and ors AIR 1988 Raj.2

A writ petition was filed by the petitioner asking the court to issue directions to the state to perform its obligatory duties. The petitioner invoked Fundamental Rights and the Directives Principles of State Policy and brought to the fore the acute sanitation problem in Jaipur which, it claimed as hazardous to the life of the citizens of Jaipur.

The Court observed that maintenance of health, preservation of sanitation and environment falls within the purview of Art. 21 of the Constitution as it adversely affect the life of the citizen and it amounts to slow poisoning and reducing the life of the citizen because o the hazards created of not checked.

The Court held that the Municipality had a statutory duty to remove the dirt, filth etc from the city within a period of six months and clear the city of Jaipur from the date of this judgment. A committee was constituted to inspect the implementation of the judgment.

Tehri Bandh Virodhi Sangharsh Samiti and State of UP and ors. 1990 (2) SCALE 1003

The writ petition was filed praying directions restraining the Union of India, State of UP and the Tehri Hydro Development Corporation from constructing and implementing the Tehri Hydro Power project. The main contention against the construction of the dam was on the basis that the plan for the Tehri project had not considered the safety aspect of the dam and serious threat existed due to this construction, as north India is prone to earthquakes. The design of the dam, was on a site which was prone to seismic activity hence posing grave danger to the people residing in that area..

Base on the fact and circumstances of the case, the Court came to the conclusion that the Union of India had considered the question of safety of the project in various details more than once and that it had taken into account the reports of experts on various aspects. In the circumstances, the court held that it was not possible to hold that the Union of India had not applied its mind or had not considered the relevant aspects of safety of the dam. The Court lacked expertise in deciding such technical and scientific details, but would always judge to the fact whether or not the Government had taken all relevant consideration, while clearing the project or not.

Goa Foundation v Konkan Railways Corporation AIR 1992 Bom. 471

A writ petition was filed in the Bombay High Court by a Society asking the Court to compel the Railway Corporation to procure environmental clearance from the Ministry of Environment and Forest under the EPA, 1986 for the part of alignment passing through Goa. The petitioner claimed that the proposed alignment is wholly destructive of the environment and the ecosystem and violates Art. 21 of the Constitution amongst other things. The grievance of the petitioners was that the proposed alignment was planned and undertaken without an adequate Environment Impact Assessment and Environment Management Plan. The petitioner also claimed that the Corporation had violated the CRZ notification.

The Court after review the argument and the facts presented before it, refused to exercise its writ jurisdiction over a matter of national importance and significance. The extent of damage is negligible and public project of this kind will fulfill the long standing aspirations of the people on the west coast. The project is an important development for the economic and social structure of the western people.



M. C Mehta v State of Orissa AIR 1992 Ori 225

A writ petition was filed to protect the health of thousands of innocent people living in Cuttack and adjacent areas who were suffering from pollution from sewage being caused by the Municipal Committee Cuttack and the SCB Medical College Hospital, Cuttack.

The main contention of the petitioner was that the dumping of untreated waste water of the hospital and some other parts of the city in the Taladanda canal was creating health problems in the city. The State, on the other hand contended that a central sewerage system had been installed in the hospital and that there is no sewage flow into the taladanda canal as alleged. Further, it was asserted that the State had not received any information relating to either pollution or of epidemic of water borne diseases caused by contamination of the canal. Also, the health department shrugged off the responsibility for supply of drinking water and passed the buck to the Municipality which refuted the contentions of carelessness and callousness.

The Court reprimanded the authorities and directed the government to immediately act on the matter. Also, the court recommended setting up of a committee to take steps to prevent and control water pollution and to maintain wholesomeness of water meant for human consumption amongst other things. A responsible Municipal Council is constituted for the precise purpose of preserving public health. Provision of proper drainage system in working conditions cannot be avoided by pleading financial inability.



Society for Protection of Silent Valley v Union of India [unreported [UP Nos 2949 and 3025 of 1979 of Kerala High Court]

In the late 1970s, the silent valley project stirred up a hornet's nest in India's first major 'environment versus development' controversy. The proposed project, now abandoned, was to dam the Kuntipuzha river in Kerala's Palghat district. As it flows through the valley, the Kuntipuzha drops 857 meters, making the valley an attractive site for generation of electricity. Environmentalists, on the other hand, asserted that as home to one of the few remaining rain forest in the Western Ghats, the valley ought to remain pristine. They further contended that with over 900 species of flowering plants and ferns and several endangered species of animals and birds, Silent Valley was on of the world's richest biological and genetic heritages. He project was abandoned due to pressure exerted on Prime Minister Indira Gandhi, within the government and from international groups and governments.

A writ petition was filed before the Kerala High Court seeking to prevent the state government from constructing a hydroelectric project in Silent valley. The petition stated that the necessary deforestation would affect climatic condition in the state and would interfere with the balance of nature. Dismissing the petition, the court held that consideration of the scientific, technical and ecological concerns was the job of the government and that it was not for the courts to evaluate these considerations again as the evaluation had already been done by the government.

B. L Wadhera v Union of India AIR 1996 SC 2969

A writ petition was filed under Art. 32 seeking directions to the Municipal Corporation of Delhi and the New Delhi Municipal Corporation to perform their statutory duties, in the collection, removal and disposal of garbage and other wastes from the city. The Court issued a couple of interim order, wherein directions were issued to the Delhi administration to perform their duties.

The Court held that the authorities entrusted with the work of pollution control have been wholly remiss in discharge of their duties under the law and that they cannot absolve themselves of their duties on the pretext of financial and other limitations like inefficiency of staff etc.

Bangalore Medical Trust v B. S Muddappa AIR 1991 SC 1902

A land designated under the Urban planning scheme, for a public park was leased by the state government for a nursing home. The Government justifying its act, by stating that the locality did not have a nursing home and it was in public interest that the said lease was given. The same lease was challenged in this petition.

The Court observed that Public park as a place reserved for beauty and recreation was developed in 19th and 20th century and is associated with growth of the concept of equality and recognition of importance of common man. Earlier it was a prerogative of the aristocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. Free and healthy air in beautiful surroundings was privilege of few. But now it is a 'gift from people to themselves'. Its importance has multiplied with emphasis on environment and pollution. In modern planning and development it occupies an important place in social ecology. A private nursing home on the other hand is essentially a commercial venture, a profit oriented industry. Service may be its motto, but earning is the objective. Its utility may not be undermined but a park is a necessity not a mere amenity. A private nursing home cannot be a substitute for a public park.

In 1984 the [Bangalore Development Authority Act of 1976] itself provided for reservation of not less than 15 percent of the total area of the layout in a development scheme for public park and playgrounds the sale and disposition of which is prohibited under sec. 38-A of the said Act.

Further the Court stated that absence of open space and public park, in present day when urbanization is on increase, rural exodus is on large scale and congested areas are coming up rapidly, may give rise to health hazard. To say, therefore, that by conversion of a site reserved for low lying park into a private nursing home social welfare was being promoted was being oblivious of true character of the two and their utility.

Rampal v State of Rajasthan AIR 1981 Raj. 121

This illustrates the use of the writ process in securing government action to improve the urban environment. It also shows the simplicity of the writ procedure compared with the more cumbersome prosecution of a suit to enforce common law rights.

The petitioners in the present case, residents of Bhilwara District of Rajasthan, complained of the lack of drainage facilities made available by the district administration due to which drinking water, drain and storm water use to mix and get collect in open chowks, leading to the growth of insect and moss and possible threat of epidemics. The petitioner supported their cause by submitting the letter of the district medical officer about his view the said collection of water may lead to spreading of infectious disease and is generating nuisance to he residents.

The Rajasthan Municipalities Act, 1959 deal with the primary and secondary functions of the Boards, and it shows that the primary duty of the Board to keep the city clean, removing filth, rubbish or other noxious and offensive matter and constructing drains, sewers, drainage works etc. As the Board has not cared to take any action in the matter, the petitioners have a filed a writ of Madamus praying for a direction to the Municipal Board for removal and discharge of the filth and dirty water and the construction of proper drainage or sewers for the discharge of such water.

The Court allowed the writ petition by awarding suitable order and direction to the Municipal Board to clean by the city and for maintain proper drainage system.



Indian Council for Enviro-Legal Action v Union of India AIR 1996 SC 1446

Bichhri is a small village in Udaipur District of Rajasthan. To its north is a major industrial establishment, Hindustan Zinc ltd., a public sector concern had established a chemical plant to produce Oleum. The real calamity occurred when a sister concern, Silver chemicals commenced production of 'H' acid in a plant located within the same complex. 'H' acid was meant for export exclusively. Its manufacture gives rise to enormous quantities of highly toxic effluents--in particular, iron based and gypsumbased sludge--which if not properly treated, pose threat to Mother Earth. It poisons the earth, the water and everything that comes in contact with it. The water in the wells and streams has turned dark and dirty rendering it unfit for human consumption. It has become unfit for cattle to drink and for irrigating land/ the soil has become polluted rendering it unfit for cultivation, the mainstay of the villagers. It spread disease, death and disaster in the village.

The villager rose in revolt leading to the imposition of sec. 144 CrPC by the District Magistrate in the area and the closure of the Silver Chemicals in Jan 1989. It is averred by the respondents that both the units, Sliver Chemicals and Jyoti Chemicals have stopped manufacturing 'H' acid since Jan. 1989 and are closed, yet the consequence of their action remain--the sludge, the long-lasting damage to earth, to underground water, to human being, to cattle and the village economy. It was with this contention that this writ petition was addressed.

The Court held that the Company was absolutely liable for the environmental degradation caused by the production of 'H' acid. It was up to the company to pay for the pollution and redo the environmental damage and wrong caused by its industrial activity. Sec. 3 and 4 of the EPA, 1986 empowers the government to recovery cost of the pollution and sue the same for redoing the harm caused to the environment.

Narmada Bachao v. Union of India AIR 2000 SC 3751

Background to the case:

Narmada is the fifth largest river in India and largest west flowing river of the Indian Peninsila. Originating from the Maikala ranges at Amarkantak in Madhya Pradesh, it flows westward over a length of 1312 kms before draining into the Gulf of Cambay. The first 1077 km stretch is in Madhya Pradesh and the next 35 km stretch of the river forms the boundary between the State of Madhya Pradesh and Maharashtra. The next 30 kms forms the boundary between Maharashtra and Gujarat and the last stretch of 161 kms lies in Gujarat.

Way back in 1946, the then government of the Central Provinces and Berar and the then government of Bombay requested the Central Waterways, Irrigation and Navigation Commission to take up investigation on the Narmada river system for basin wise development of the river with flood control, irrigation, power and extension of Navigation as the objectives in view. The Project was inaugurated by the then Prime Minister Shri. Jawaharlal Nehru on 5th April 1961. Thereafter due to certain difference of opinion between the riparian States, the matter was referred to a tribunal in 1968 constituted under the Inter-State Water Disputes Act, 1956. Based on the agreement between the Chief Ministers of 4 States [M.P, Maharashtra, Rajasthan and Gujarat] the tribunal declared is award on 16th August 1978. In order to meet the financial obligation, consultations started in 1978 with the World Bank for obtaining a loan. In May 1985 the loan was sanctioned, and in 1987 the Ministry of Environment and Forest accorded Environmental Clearance subject to certain conditions.

Taking the cause of the oustees, those displaced by the acquisition of land and submergence of land to the building of the many dams across the river, in April 1994 the NBA filed a writ petition praying that the respondent should be restrained from proceeding with the construction of the dam.



The Supreme Court observed that the Sardar Sarovar Project would make a positive impact on the preservation of environment. The project has been long awaited by the people of Gujarat to whom water will be available to the drought prone and arid parts, this would help in effectively arresting ecological degradation which was returning the make these areas inhabitable due to salinity ingress, advancement of desert, ground water depletion, fluoride and nitrite affected water and vanishing green cover. The ecology of water scarcity areas is under stress and transfer of Narmada water to these areas will lead to sustainable agriculture and spread of green cover. There will also be improvement of fodder availability, which will reduce pressure on bio-diversity and vegetation. The SSP by generating clean eco-friendly hydropower will save the air pollution which would otherwise take place by thermal general power of similar capacity.

The Court observed that poverty of the biggest threat to environment and unless people are provided with water and other development amenities, the environment will be exploited to a larger extent.

Following the above analysis the Court thought it unfit to interfere with the construction of the dam, as its advantages over took its disadvantages. The construction of the dam was allowed subject to certain conditions.

Church of God [Full Gospel] in India v. KKR Majestic Colony Welfare Association AIR 2000 SC 2773

The appellant, a minority institution was in the practice of using musical instruments such as drum set, triple ganga, guitar etc. The respondent welfare Association filed a Criminal O.P before the High Court of Madras for a direction to the authorities [Superintendent of Police] to take action on the basis of the letter issued by the Joint Chief Environment Engineer of the TMPCB. In High Court it was contended by the Church that the petition was filed with an oblique motive in order to prevent a religious minority institution from pursuing its religious activities and the Court cannot issue any directions to prevent the church from practicing its religious beliefs. The High Court balanced the act by giving directions to the religious minority institution to bring down the noise level by keeping the speakers at a lower level. Aggrieved by the said order the respondents appealed to the Supreme Court.

The Supreme Court held that India is a country with many religious beliefs and faith, numerous communities or sects of people reside in the same area and locality. Each reside in a sense of harmony an d peace. The Constitution has given religious institutions fundamental right to practice, profess and propagate. But does right include the right to add noise pollution on the ground of religion? Whether beating of drums or reciting of prayers by use of microphones and loudspeakers so as to disturb the peace or tranquility of neighborhood should be permitted?

The Court held that 'undisputedly no religion prescribed that prayers should be performed by disturbing the peace of other nor does it preach that they should be through voice-amplifiers or beating of drums. In our view, in a civilized society in the name of religion, activities which disturb old, infirm persons, students or children having their sleep in the early hours or during day time or other persons carrying on other activities cannot be permitted..'.

The Court while adjudicating the appeal observed that in the present case, the contention with regard to the right under Art. 25 or Art. 26 of the Constitution which are subject to 'public order, morality and health' are not required to be dealt with in detail mainly because.. no religion prescribes or preaches that prayers are required to be performed through voice amplifiers or by beating of drums. In any case, if there is such practice, it should not adversely affect the rights of others including that of being not disturbed in their activities.

 

T. N Godavarman Thirumulpad v Union of India AIR 2000 SC 1636

Beginning December, 1996 the Supreme Court went one step ahead of the Maneka judgment [as to the Environment law], by issuing sweeping directions to oversee the enforcement of forest laws across the nation. Assisted by amicus curiae the court froze all wood based industrial activity, reinforced the scope of the embargo on forest exploitation, issued detailed directions for the sustainable use of forests and created its own monitoring and implementation machinery through regional and state level communities. The case has no parallel, even by the expansive standards of India's pro-active judiciary. As the court assumes the role of a super-administrator, regulating the felling, use and movement of timber across the country in the hope of preserving the nation's forest. The analysis is specially important in its impact in the North east region, where the wood based industries contribute substantially to the region's economy.

The Court examined in detail all the aspect of the National Forest Policy, the Forest Conservation Act, 1980, which was enacted with a view to check further deforestation. The word 'forest' must be understood according to its dictionary meaning. This covers all statutorily recognized forest, whether designated as reserved protected or otherwise for the purpose of sec. 2(i) of the Forest Conservation Act. The term 'forest land' occurring in sec. 2, will not only include 'forest' as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. Directions were issued, among them the following are the some of the important ones.

1. All forest activities throughout the country, without the specific approval of the Central Government must cease forthwith. Therefore running of saw mills, plywood mills and mining are all non forest purposes and they cannot carry on with the Central approval.

2. The felling of all trees in all forest is to remain suspended except in accordance with the working plan approved by the Central Government.

3. Complete ban on the movement of cut trees and timber from any seven north eastern states of the country either by rail, road or water ways. The Indian railways and state governments were directed to take all measures necessary to ensure strict compliance of this directions. Railways were asked to shift immediate to concert tracks than to using wooden sleepers. Defense establishments were also asked to find alternatives to consumption of wood based products.

4. A High power Committee was to be constituted to oversee the implementation of the judgment and to guide the Court in making further orders, especially in the North East. The Committee was directed to prepare an inventory of timber and timber products lying in the forest, transport depots and mills in the region. The HPC was empowered to permit the use or sale of timber products if it considered appropriate through the State Forest Corporation.

5. Licenses given to all wood based industries shall stand suspended.

6. An action plan shall be prepared by the Principal Chief Conservator of Forest for intensive patrolling and other necessary protective measures to be undertaken in identified vulnerable areas an d quarterly report shall be submitted to the Central Government for approval.



M. C Mehta v Union Of India AIR 1997 SC 734

On the eve of his retirement, J. Kuldip Singh delivered the judgment in the Taj Trapesium case, culminating a long and arduous battle fought by M. C Mehta for over a decade. The case was first placed in 1984, wherein the petitioner warned of damage to the Taj Mahal from air pollutants from the Mathura refinery.

It was alleged by the petitioner that the suplphur dioxide emitted by the Mathura refinery and the industries when combined with Oxygen-with the aid of moisture-in the atmosphere forms suplphuric acid which has a corroding effect on the gleaming white marble of the Taj. Industrial/Refinery emissions, brick-kilns, vehicular traffic and generator sets are primarily responsible for polluting the ambient air around Taj Trapezium. The petition states that the white marble has yellowed and blackened in places. It is inside the Taj that the decay is more apparent. Yellow pallor pervades the entire monument. In places the yellow hue is magnified by ugly brown and black spots. Fungal deterioration is worst n the inner chamber where the original graves of Shah-Jahan and Mumtaz mahal lie.

The Court observed that the Taj, apart from being cultural heritage, is an industry by itself, More than two million tourists visit the Taj every year. It is a source of revenue for the country.

Various orders were passed by the Court. The Court created a Taj Trapezium which consisted of 10, 400 sq. Kms in the shape of a trapezium to regulates activities in relation to air pollution.

Industries were asked to shift to eco friendly fuel and use lessen the use of diesels generators, and asked the State to improve power supply the city. Tanneries operating from Agra were asked to shift from the Trapezium. The Pollution Control Boards [State and Central] were asked to monitor any further deterioration in the quality of air and report the same to the Court. Further the Court asked he government to take steps to undo the wrong on the environment and the white marbles at Taj and to take clean up operations.

S. Jagannath v Union of India [1997] 2 SCC 87

This case brought into force for the first time the non-implementation of the CRZ notification. Though the notification was enacted, it was never brought into force and the petitioner filed this writ for stoppage of intensive and semi-intensive type of prawn farming in the ecologically fragile coastal areas and for prohibiting use of wastelands and wetlands for prawn farming. The petitioner also sought for the constitution of a National Coastal Zone Management Authority to safeguard the marine and coastal areas. The allegation of the petitioner was that the coastal states were allowing big business houses to develop prawn farms on a large scale in the coastal States in violation of the EPA, 1986 and various other provisions of law.

The Court ordered NEERI to visit the coastal states of Andhra and Tamil Nadu and give its report on the status of farms set up in the said areas. The report submitted indicated that due to the impact of aquaculture, the environment was adversely degraded. The impact was on surface water, contamination of soil and ground water and destruction of mangrove vegetation.

The Court order the following:

1. no part of the agricultural land and salt farms could be converted into aqua culture farms

2. an authority shall be constituted by the Central Government under sec. 8 (3) of the EPA, 1986.

3. the authority so constituted shall implement the precautionary principle and polluter pays principle;

4. no shrimp culture ponds should be constructed within the CRZ;

5. all the infrastructure set up within the CRZ such as shrimp culture farms should be demolished and removed;

6. aquaculture industry functioning at present within one km of the Chilika and Pulicat lakes must compensate the affected persons;

7. all employees/workmen engaged in the shrimp culture industry for less than one year should be retrenched and those employed for more than one year paid compensation.

8. aquaculture industry functioning outside the CRZ should obtain clearance from the authority within a specified period failing which they must stop their operations.

Subhash Kumar v State of Bihar AIR 1991 SC 420

The petitioner filed a public interest petition in terms of Art. 32 of the Constitution, pleading infringement of the right to life guaranteed by Art. 21 of the Constitution, arising from the pollution of the Bokaro river by the sludge/slurry discharged from the washeries of the Tata Iron and Steel Company Ltd. [TISCO]. It was alleged that as a result of the release of effluent into the river, its water is not fit for drinking purposes or for irrigation.

The respondents on their part established that TISCO and the State Pollution Control Board had complied with statutory requirement and that the petitioner was motivated by self interest.

The Court observed that Art. 32 is designed for the enforcement of fundamental rights. The right to life enshrined in Art. 21 includes the right to enjoyment of pollution free water and air for the full enjoyment of life. If anything endangers or impairs the quality of life, an affected person or a person genuinely interested in the protection of society would have recourse to Art. 32. Public interest litigation envisages legal proceedings for vindication or enforcement of fundamental rights of a group of persons or community, which are not able to enforce their fundamental rights on account of their capacity, poverty or ignorance of law. However public interest litigation cannot be resorted to satisfy personal grudge or enmity. Personal interest cannot be enforced through the process of court under Art. 32 in the grab of public interest litigation. Since the instant case was motivated by self-interest, it was accordingly dismissed with a warning to all such people who would approach the court for fulfilling personal goals.

Air Pollution

Chhetriya Pardhushan Mukti Sangharsh Samiti v. State Of Uttar Pradesh, AIR 1990 SC 2060.

Sabyasachi Mukharji, C.I. and K.N.Saikia, I.

Facts:

In this case a letter written by the Chhetriya Pardhushan Mukti Sangharsh Samiti (hereinafter Samiti) a social organisation alleging environmental pollution in Sarnath was treated as a writ petition under Article 32 of the Constitution. It was alleged that the smoke and dust emitted and the effluents discharged by Jhunjhunwala Oil Mills and refinery plant located in that area were causing environmental pollution and ecological imbalance. The population of this area was exposed to health hazards and their lives were at risk on account of such pollution.

On the basis of facts and circumstances the Court found that there was a long history of enmity and animosity between the two parties and the allegations have been made due to this. Since prima facie the respondents had complied with the provisions of the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 and there was no violation of any fundamental right, this case was dismissed.

As obiter dicta the Court held that Article 21 of the Constitution provides every citizen with the fundamental right to enjoyment of quality of life and living. In case of any violation or derogation of law endangering or impairing this right recourse to Article 32 could be taken. Article 32 is a safeguard for the preservation of fundamental rights of the citizens and must be invoked and utilised with caution and circumspection. It was held that it is the duty of the court to ensure that Article 32 is not misused and such misuse should be strongly discouraged.

The Court held that Art. 32 is a great salutary safeguard for preservation of fundamental rights of the citizens. Every citizen has a fundamental right to have the enjoyment of quality of life and living as contemplated by Art. 25 of the Constitution of India. Anything which endangers or impairs by conduct of anybody either in violation or in derogation of laws, that quality of life and living by the people is entitled to be taken recourse of Art. 32 of the environment. Further the Court held that this can be done by any person interested genuinely in the protection of the society on behalf of the society or community. This weapon as a safeguard must be utilised and invoked by the Court with great deal of circumspection and caution. Where it appears that this is only a clock to feed fact ancient grade: and enmity this should not only be refused but strongly discouraged. And held that it is the duty of the Court to enforce fundamental rights, and also it is the duty to ensure that this weapon under Art. 32 should not be misused or permitted to be misused creating a bottle neck in the superior court preventing other genuine violation of fundamental rights being considered by the Court. And that would result in an act or conduct which will defeat the purpose of preservation of fundamental rights.

Noise Pollution: from autorikshaws, welding and painting operation

Madhavi v. Thilakan and others, 1989 Cri. L. I. 499.
Chettur Sankaran Nair, I.

Articles 21,47, 5l-A, Constitution of India;

Code of Criminal Procedure, (Section 133).

In the above case the petitioners had moved the Sub Divisional Magistrate, Fort Cochin for initiation of proceedings under Section 133 of the Criminal Procedure Code for the removal of a Public Nuisance. The petitioners alleged that the repairs of autorikshaws, welding, painting and other such operations carried out in the respondents workshop, adjacent to the petitioner's house, caused both noise and air pollution and was injurious to health and physical comfort of the community.

The Magistrate dropped the proceedings on the ground that a civil suit was pending consideration before the Munsiff, Cochin.

The Munsiff Court while hearing the case, rejected the Contention taken by the Public Prosecutor; even if a factory or workshop produces air or noise pollution it should not be closed down since it provides livelihood to some persons. The Court recognised that the right to life protected under Article 21 of the Constitution is far more than the right to animal existence. The Court held that "the right to live in peace, to sleep in peace and the right to repose and health, are part of the right to live". Reading this fundamental right along with the Directive Principles of State Policy, the Court held that petition on file should be taken back by the Magistrate on file and proceed a fresh in accordance with law.

The Court has held that the constitutionally recognised values cannot be ignored, Art. 47 of the constitution enjoining that :"the state shall regard the rising of the level of nutrition and the stand of public health as among us primary duties" (Emphasis supplied) under Art. 51A it is one of the fundamental duties. Guaranteeing protection of life and liberty and articles to protect and improve the natural environment"

Further, the court held that Art. 21 of the constitution guaranteeing protection of life and liberty has been enriched in colour and content revealing new horizons, by the Supreme Court. The right to enjoy life as a serene experience, in quality for more than animal existence is thus recognised. Personal autonomy free from intrusion and appropriation is thus a constitutional reality. The court recognised and held that every man's home to be his castle, which cannot be invaded by toxic fumes or tormenting sounds. This principle expressed through law and culture. Consistent with nature's ground rules for existence, has been recognised in Sec. 133 (1) (b) " the conduct of any trade or occupation or keeping of any goods or merchandise, injurious to health or physical comfort of community" could be regulated or prohibited under the Section.

And further held that various Municipal Laws and Regulations have been enacted to ensure that industrial enterprises, do not telescope into residential areas , causing health hazards and the court finally emphasised that the law relating to abatement of nuisance must be strictly enforced.

Air Pollution from a fodder storage plant

Ajeet Mehta v. State of Rajasthan, 1990 Cri.L.I. 1596.
A.K. Mathur, J.

A complaint was filed by the petitioner against the non-petitioners to the effect that stocking of various kinds of fodder, their loading and unloading by the non-petitioners caused pollution in the whole locality where they reside and inhalation of such particles causes a health hazard. The City Magistrate, Jodhpur held that the non-petitioner's business in fodder was causing a health hazard to the neighbours and ordered removal of their business. On revision by the non-petitioners, the Additional Sessions Judge reversed this decision. This revision petition was filed against this decision.

The Court hearing the revision, held that stocking of fodder constituted pollution of the atmosphere. The Court also held that the liberty and freedom of any individual cannot be compromised by another person by causing nuisance, be it trivial or major, except in accordance with law. The court also held that work for personal gain, causing discomfort to others should not be permitted. Thus public health cannot be allowed to suffer on account of the personal business of any individual. Hence, the decision of the Additional Sessions Judge was quashed and the revision petition allowed. The court ordered removal of stocking of fodder and stoppage of the business of fodder in that locality and six months time was granted to remove the fooder and for searching out a new place for their business.

Water Cess: What does consumption of water mean for the calculation of Cess under the Water Cess Act ?

Delhi Electric Supply Undertaking v. Central Board for the Prevention and Control of Water Pollution, 1995 Supp (3) SCC 385.

Kuldip Singh, J, B.P. Jeevan:Reddy, J, S.P. Barucha, JJ.

Water & Air (prevention & Control of Pollution) Cess Act, 1977 (Section 3).

The Delhi Electric Supply Undertaking (hereinafter 'DESU') was assessed to water cesses under the Water & Air (Prevention & Control of Pollution) Cess Act, 1977 since it consumed water for cooling the turbines and other equipment in its thermal generating industries. A contention was raised on behalf of DESU that water was discharged back into the river and therefore it would not amount to "consumption" in its appeal against this order.

The Supreme Court also rejected this argument on the ground that the water which entered the factory must be taken to be consumed.

The Supreme Court while hearing an appeal against the order upheld the order of the High Court. The High Court in its judgement had made a detailed observation of water (prevention and control of pollution) Cess Act. 1977 and the explanation given under Sec. 3 and Schedule I, item 14 and Schedule II, item 1, and has also discussed occat meaning of the word "consumed" and the meaning of "consumption" of water. The Court held that the reason forwarded by DESU of drawing water and discharging the same into river would not amount to 'consumption' was not acceptable. Hence the DESU would be liable for payment of Water Cess under the said Act.

Noise Pollution: Use of Multi toned horns in motor vehicles though banned under the Motor Vehicle Act has not be implemented in States.

Nayan Behari Das v. State of Orissa, AIR 1998 Orissa 39.
P.C. Naik & P.K. Mohanty, JJ. ]

Rule 119 of the Central Motor Vehicles Rules

Environmental Protection Act 1986

In this case the petitioner prays the Court for the issuance of an appropriate writ, direction or order seeking prohibition of the use of multitoned horns and other such devices producing unduly harsh, shrill, loud or alarming, by vehicles bound to cause disturbance and inconvenience to public in general.

Since, Rule- 119 of the Central Motor Vehicles Rules already prohibits the use of such horns, the Court proposed the exhibition of notices at bus stops and R. T .0. Offices regarding this prohibition. It also recommended the printing of a warning or affixing of a rubber stamp on all application forms required for fitness certificates, permits and in the registration books, that the use of such horns is prohibited. It also ordered follow-up action by the appropriate authorities.

In the judgement Rule 119 of the Central Motor Vehicles Rules has been noticed by the Court, which reads thus "119 Horns -

(1) every motor vehicle shall be fitted with an electric horn or other device (conforming to the specifications of the Bureau of Indian Standards) for the use of by the driver of the vehicle and capable of giving audible and sufficient warning of the approach or position of the vehicle.

2) No Motor Vehicle shall be fitted with any multitioned horn giving a succession of different notes or with any other sound producing device giving an unduly harsh, shrill, loud or alarming noise.

3) Nothing contained in sub-rule (2) shall prevent the use in Vehicles used as ambulance or for fire fighting or salvage purpose or on vehicles used by police officers of Motor Vehicles department in the course of their duties, of such sound and signals as may be approved by the registering authority in whose jurisdiction such vehicles are kept".

The court held that by observing the above mentioned provisions, that the use of multi toned hornes or similar devices giving unduly harsh, shrill, loud and alarming sounds is not permissible but, it is seen that scant regard is being paid to these provisions by the operators of passenger vehicles and goods vehicles in general. Further, the court held that Rule Prohibiting its use, the use of multi toned horns and other similar devices are on the increase and as such drastic steps are required to be taken by the appropriate authority for strict enforcement of these provisions

No motor vehicle shall be fitted with any multi toned horn giving a succession of different notes or with any other sound producing device giving an unduly harsh, shrill, loud or alarming noise.

Nothing contained in sub-rule (2) shall prevent the use in vehicles used as ambulance or for fire fighting or salvage purpose or on vehicles used by police officers of Motor vehicles department in the course of their duties of such sound and signals as may be approved by the registering authority in whose jurisdiction such vehicles are kept".

The court held that by observing the above mentioned provisions, that the use of multi toned horns or similar devices giving unduly harsh, shrill, loud and alarming sounds is not permissible but, it is seen that scant regard is being paid to these provisions by the operators of passenger vehicles and good vehicles in general. Further, the court held that it is surprising that inspite of the rule prohibiting its use, the use of multinational horns and other similar devices are on the increase and as such drastic appropriate authority for strict enforcement of these provisions.

Pollution and Nuisance: whether the opening up of a Ice factory in a commercial locality amounts to Nuisance ?

S. Pathrose v. State of Kerala, AIR 1997 Ker 49. S. Shankarasubban, J .

Section 97, Kerala Panchayat Act.

The Petitioner to this case were genuine holder of licence for manufacturing ice and constructing a building for the said ice plant.

Right opposite the Ice plant, there was a religious institution in a Mosque. The President of the mosque, objected to the establishment of the Ice plant as he alleged that this would result in pollution of the water and the air in the local locality. On complaint by the President of the mosque the District Collector revoked the licence.

The petitioner has appealed against the said order District Collector.

The Court after perusing the facts and circumstances of the case and investigating in detail the argument, held that the licence issued by the DC, could not be revoked on the above ground as the petitioner was only trading in ice, therefore there was no question of contamination of water. Another consideration that weighed with the Court was the location of the mosque which was in a commercial layout. The petitioner was also willing to comply with all the directions of the Pollution, Control Board and ensure that there was no discharge of effluents. However since the licence had been cancelled, the petitioner was required to approach the Anjengo Panchayat again for the grant of the licence.

In this case the Court recognised the fundamental right guaranteed by the Constitution under Art. 19(1) (g) which grants right to every citizen to exercise his professional trade, etc.

The court referred to the observations made by Kalliath, in the decision reported in Manager, Fort High School v. Govt. of Kerala (ILR (1991) 2 Ker 811 - which reads thus :

"A law and order situation has to be dealt with by and the government using its prerogative powers granted by the Constitution of India. Citizens are entitled to exercise their lawful rights and for that purpose, government is bound to give adequate protection. Under threat of law and order situation, a citizen cannot be denied to exercise his lawful rights. If this is permitted, it will be an indication of the failure of a constitutional government. And the prime duty of the government is to see that every citizen is allowed to exercise this lawful rights even if large number of people are against the exercise of his legal rights".

Water Cess Act: Whether Industry such as Glass manufacturing come within the perview of Water Cess?

Sri Durga Glass Works, Firozabad v. Union of India, AIR 1997 A11179.

Palok Basu and R. K. Mahajan, JJ.

Water & Air (Prevention & Control of Pollution) Cess Act, 1977 (Section 2(c)

This petition was filed by the petitioners to quash the orders for recovery of the amount of cess under the Water (Prevention & Control of Pollution) Cess Act, 1977. The petitioners contended that since the glass industry was not specified in the Schedule of the above Act, they were not liable to pay the cess.

The Court held that the glass industry clearly falls under the 2nd entry in the Schedule to the above Act. It was not possible for any industry to function without consumption of water. The Court also held that the principle of absolute liability in case of pollution extending not only to compensate the victims of the pollution but also the cost of restoring the environmental degradation (the "polluter pays" principle) is in consonance with the above Act. The Court held that to protect the fundamental right to life envisaged under Article 21, environmental laws need to be observed. The writ petitions were consequently dismissed.

In order to come to this logical conclusion the Court has recognised Articles 51A, Part IVA of fundamental duties of constitution.

The court held that it is essential in view of the fundamental duty imposed under Articles 21 of the Constitution of India. The court also held that, the Hon'ble Supreme Court in its judgement directed the removal of hazardous and dangerous industries from Delhi and also the industries which were spoiling water of Rajasthan and other places. The Supreme Court thus gave a new dimension in interpreting the law of environment i,e, water (prevention and control of pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 as well as Environment (Protection) Act, 1986.

Further the court stressed that in the light of this new philosophy to solve the human problems so as to sustain healthy life, the legislative thought it fit to impose cess on the industry so that the pollution boards would not face any problem of funds for implementation of the Cess Act and also to prevent pollution.

Further, the Court held that the entries in schedule I have to be construed broadly and not in a narrow, restricted sense. They are more a description of the class of industries rather than of individual industries. The entries mention the glass and not the species. Hence, the glass industry also falls under the non-ferroces metallurgical industry.

Water Pollution: whether Conditional Consent amounts to consent to commence operations and pollute

M/s Lipton India Ltd. v. State Of Uttar Pradesh, AIR 1996 All 173.

M. Lal, & Jagdish Bhalla, JJ.

Indian Companies Act, 1956;

Water (Prevention & Control of Pollution) Act, 1974;

Code of Criminal Procedure.

The petitioner Company had applied for consent of the Pollution Control Board for discharging trade effluents till such time as a proper plant for their treatment was made in order to satisfy the requirements of the Water (prevention & Control of Pollution) Act, 1974. The petitioners claim that this conditional consent was granted. However the records submitted refer only to the conditional consent granted in 1988. The Board refused further consent and an appeal was preferred against this order. A criminal case was also filed by the Pollution Control Board through one of its officers for non-compliance with the provisions of the aforesaid Act. This petition was filed against this decision .In the judgement the Court had the opportunity to elaborately discuss the existing provisions of the Water Act.

The Court noticed Sec 44 of the Act which provides that whoever contravenes the provisions of Sec. 25 of the Act shall be punishable with imprisonment for a term which shall not be less than 6 months but which may be extend to 6 years and with fine. Sec. 25 of the Act, which deals with the restrictions on new outlets and new discharges and poster lates that subject to the provisions of this section, no person shall without the previous consent of the Board, bring into any new or altered outlet for the discharge of sewage or trade effluent into a stream or well. The court had made notice of sec. 26 of the Act which provides that where immediately before the commencement of this Act any person was discharging any sewage or trade effluent into a stream or well, the provisions of sec. 25 shall apply in relations to such person as they apply in relation to the person referred to in that section subject to the modification that application for consent to be made under sub. section (2) of that section shall be made within a period of 3 months of the constitution of the State Pollution Control Board.

Further, the court had widely recognised the changes that had been bought about in Sec. 49 after amendment in the said section of the Act. The court held that Sec. 49 of the Act, has undergone drastic changes by the Act. No.53 of 1988 published in the Gazette of India on 3/10/88 where by old provisions of Sec. 49 have been replaced and in its place new provisions have been substituted. According to the new provisions of Sec.49 of the Act as they stand today do not require any sanction of the Board irrespective of the fact whether the complaint is filed by the Board or any other person.

Further it is also recognised that the reasons for ecological imbalance in our country has resulted in adverse effect of water pollution in the 20th Century, an era of industrial revolution which has given rise to the problems of water pollution, air pollution and vibrations arising out of noise which also creates ecological imbalance.

The court dismissed the case, as the sanction did not suffer from any legal infirmities. The court also observed that despite there being effective legislation and imperative orders and directions issued by the Courts from time to time, no heed is being paid and pollution is continuing.

Debate between Development and Environment: where to balance ?

Bombay Environmental Action Group v. State of Maharashtra, AIR 1981 Bom 301.

S.C. Pratap, and A.V. Savant, JJ.

Air (prevention & Control of Pollution) Act, 1981;

Water (Prevention & Control of Pollution) Act, 1974;

Environmental (Protection) Act, 1986.

In this case two writ petitions were filed by the Bombay Environmental Action Group and Saad Ali challenging the permission granted by both the State and Central Government to the Bombay Suburban Electric Supply Company Ltd. for establishing a 500 mega watt thermal power station in Thane District. Clearance was granted by the Department of Environment, Maharashtra, the Maharashtra Pollution Control Board and the Ministry of Environment, Forest and Wildlife, Government of India after compliance with a number of conditions which included compliance with the Air & Water (Prevention & Control of Pollution) Act and also the Environmental (Protection) Act. The petitioners contended that the grant of environmental clearance was not in keeping with the law in force.

The court held that since all the possible environmental safe guards have been taken, the check and control by way of judicial review should come to an end. Once an elaborate and extensive by all concerned including the environmentalists the state and the central authorities, is undertaken and affected and its result is judicially considered and reviewed, the matter should stand concluded. Endless arguments, endless reviews and the endless litigation in a matter such as this can carry one to no end and may as well turn counter productive. While public interest litigation is a welcome development, there are nevertheless limits beyond which it may as well cease to be in public interest any further.

The court further held that the spirit of confrontation shall be replaced by a spirit of co-operation in the larger interests of the community. Qua project such as this, if steps are not taken well in time, this metropolis and its over twelve million inhabitants by now, will in the near future final themselves be set with serious energy crisis, perforce compelling this vast pollution to live without adequate power and energy which, in this age and times has become basic for the minimum standard of life and living. It is in nobody's interest to inordinality delay this project of imense benefit.

After perusing the facts and circumstances the Court held that the decision was not arbitrary or capricious since the conditions imposed by the Government took care of all the environmental safeguards. The court held that it is necessary to balance environmental requirements with the needs of the community at large and the needs of a developing country. Since in this case all the pros and cons of this project had been weighed before taking the decision there was no requirement of judicial interference.

This judgement proves the attempt of the court to balance needs of the environment with the needs of the community at large and needs of the developing country.

Water Pollution: Duty on the part of Industry to comply with Conditions in the consent

Rajiv Ranjan Singh v. Sate of Bihar AIR 1992 Pat 86.

Satya Brata Sanyal & Aftab Alam, JJ

The petition was based on a report in the newspaper that M/S Shiv Shankar Chemical Industries was polluting the environment by discharging harmful effluents into :' the water bodies and also discharged noxious fumes. It alleged that the Pollution Control Board was turning a blind eye to this. The respondents to the allegation claimed that they were not causing any pollution. The Board, however, submitted that the industry had been asked to replace their old conventional method of treating effluents with a modem effluent treatment plant and it had not done so.

The Court ordered an enquiry into the nature of the effluents to determine their effect. They also ordered the firm not to release any more effluents out of the premises of the firm. When the Expert Committees report was placed before the Court, it held that their was sufficient evidence to show the respondents had not stopped charging the effluents into the water bodies and thus ordered a stay on all further manufacturing activities by the firm. It also ordered for the constitution of a Committee to inspect the distillery to verify if the various safety measures were being followed.

In the meantime, the Board refused to extend its consent to the Company under the provisions of the Water (Prevention and Control of Pollution) Act, 1974 beyond September 30, 1989 as it had failed to comply with the conditions of the earlier consent order. The Company filed a writ in Court challenging this refusal as being arbitrary and discriminatory. The two writs were heard together.

Shortly after this, the report of the second Committee was released. It held that the effluents had a large quantity of B.O.D. (Biochemical Oxygen Demand) which was fatal to marine life as on coming in 'contact with water it absorbed all the oxygen. It also detailed the treatment of effluents followed at the distillery and .concluded that adequate pollution control measures were not available at the factory .On the question of pollution already generated by the distillery, the Court held that this was more in the nature of an irritating nuisance rather than a health hazard. It concluded that the distillery cannot be absolved of its responsibility of setting up the modem treatment plant but this was already under construction.

It also observed that it would take 9 months to build the new plant and in the interim suggested certain measures, which the distillery should adopt to check the level of pollution. The Company accepted all the recommendations and undertook to build the new plant within 9 months.

The Court held that their was a need to balance between the necessity to protect the environment and the pressing need for industrialization of the State. It agreed with the scheme suggested by the second Committee to restart manufacturing processes with adequate safeguards. It felt that this would be in accordance with the dicta laid down in M.C.Mehta v. Union of India (AIR 1988SC 1037).

The Court has not only allowed the continuation of manufacturing process but it has also imposed certain conditions on the polluting industry which are of great importance. The conditions imposed are:

1) the distillery must set up properly designed lagoons, double lined by polythene shuts avoid any risk of ground water pollution having their retaining and holding capacity equivalent to 100 days effluent discharge. This must be to the complete satisfaction of the Board.

2) The entire area where lagoons exist or will be further dug up the used as storage for the effluent should be effective ly fenced to a height of five feet by a pucca wall or 7 stand barbed wire fence to check the entry of cattle or human beings into largoon area.

3) The Unit should provide for centrifugal separation for the fermented sludge so the initial stage itself and used either for cattle fed or manure.

4) The factory should be separated by a 5 metre high and 150 metre long earthin dyke with close plantation on the top along the slopes. This should be able to limit the odour reaching the villagers to some extent.

5) Two deep tube wells may be provided for the villagers at the cost of the industry.

 

Air Pollution caused from a Rice Mill: Court ordered closing down of the mill unless it adhered to environmental safety standard.

K..Munniswamy Gowda v. State of Karnataka, AIR1998 Kant 288.

G.C.Bharuka,JJ

The petition was filed to pray the Hon'ble Court to pass necessary orders to shut down the rice mill of the respondents which is next to the petitioners residential house. The rice mill was alleged to cause health hazard by emitting husk and dust into the atmosphere surrounding the mill. The petitioner suffers from bronchitis, which has been worsened since the mill was running. The respondent had been granted a license to run the rice mill. Even before the granting of the license, the petitioners had filed their objections with the Deputy Commissioner, who had made a spot inspection and had made certain suggestions to reduce the nuisance. However, these measures had proved insufficient.

On the basis of a second complaint, the Deputy-Commissioner made a second inspection and concluded that the mill was causing serious air pollution and passed an order that it must be relocated. However, later he changed his order relying on the notification of the State government exempting Rice mills from the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. Aggrieved by this order, the petitioners filed the present petition.

The question before the Court for adjudication was whether the State government and the Board have the power to exempt industries from the purview of the above Acts?

The Court held that the Pollution Board had allowed factories to operate at the expense of the environment and the fundamental right of citizens guaranteed under Art.21. the Courts perused the precedents on this point and concluded that Art. 21 includes a right of pollution free air and water for full enjoyment of life.

The Court considered the provision of the Air Act and also the notification of the State government, which directed the Pollution Board to exempt certain small-scale industries from the purview of the Air Act. The Court concluded that the government under Sec 19 of the Act had declared the whole of Karnataka as a Air Pollution Control Area. Thus, all the units are mandatorily required to abide by Sec.21 of the Act, which provides certain restrictions on the use of certain industrial plants. The Act contains no provisions empowering the State Board to exempt industries from the purview of the Act. Any authority to grant exemptions assumed by the State Board can only be held to be derogatory to. the object and express provisions of the Air Act. The Government has nevertheless exempted 115 plants under this notification.

The Court held the notification of the Board to be ultra vires its powers and non est. The respondent were ordered to seek permission of the State Pollution Control Board under Sec. 21 of the Act or to stop running the industry forthwith. It ordered exemplary damages.

The judgement is not only important from the point of view that it protects the fundamental rights of the citizens guaranteed under Art. 21 of the constitution but it is also important to note in the judgement that it has stressed the importance of the Air Act and the procedure to be followed under the various provisions of the Act.

In the judgement the Court recognised the various provisions of the Act.

The Court held that the plain reading of Sec. 18(1) (b) of the Act unquestionning manifests that the state board shall be bound by only such directions issued by the State Government which pertains to be discharge of functions assigned to the State Board under Sec. 17 of the Air Act. It is also amply clear that neither the State Government can issue any directions which has no nexus with the functions assigned to the Board nor the Board is bound to follow any such directions.

Further the Court held that under Sec. 17 of the Air Act, which sets out the functions of the State Board, clearly envisages that the functions assigned to the State Board are meant for taking such steps as may further the objects of the Act in effectively controlling the air pollution caused by the industries. No clause of the said section, or for that sake any provision of the Air Act has empowered the State Board to keep any industrial plant out of the purview of the Act if it cause air pollution. Any authority to grant exemption assumed by the State Board can be held only to be derogatory to the object and empowers provisions of the Act.

Air Pollution: Establishment of Industry without No objection certificate from the PCB, whether justified?

M/s. Chhatisgarh Hydrate Lime Industries v. Special Area Development Authority, AIR 1989 MP 82.

C.P .Sen & y .B.Suryavanshi

The petitioner was refused the No Objection certificate to start a plant to manufacture hydrated lime in the industrial area of Korba by the State Pollution Control Board and Deputy Director, Town and City Planning. Korba was developed as an industrial township. In 1976, the Special Area Development Authority, SADA was set up and was empowered with the functions of the Municipality under the M.P. Municipalities Act, 1973. Thus, to undertake any development in the area prior permission of SADA was required. In 1984, a notification was issued declaring Korba a pollution control area under the Air (Prevention and Control of Pollution) Act, 1981. As a result no industrial plant could be operated in Korba without the prior permission of the State Pollution Board. A number of restrictions were placed on the industries in the locality.

The petitioner applied for and was granted permission by the District Industries Center to begin construction of a factory for manufacture of hydrated lime. They secured a loan from the MP Financial Corporation and began construction. The State Board refused the No Objection Certificate because of Air Pollution. The Deputy Director, Town and City Planning first issued such a certificate but subsequently revoked it as the industry was sought to be built next to a government hospital and this would be a cause of nuisance. The respondents issued a notice to the petitioner that the construction was illegal and would be demolished. The petitioner, thus, filed the present petition. The Court ordered the petitioner to stay all construction work during pendency of the suit. However, the Court later repealed the stay allowing construction work to continue.

The petitioner contended that since the District Industries Center had given him permission, the State Pollution Control Board and the Town and City Planning Authority could not refuse to grant the No Objection certificate. Further there were a number of other industries, which were polluting the environment in that area, especially another company which produced hydrated lime. Thirdly, the Chairmen of both Authorities are on friendly terms and this is a conspiracy against him cause he refused to respond to their feelers for bribes.

The respondents contented that SADA had asked the various authorities to refuse permission as the industry caused air pollution.

The Court refereed to Motilal v.State of up (AIR 1979 SC 621) and a number of other decisions where it was held that the doctrine of promissory estoppel applies to the government and rejected the defense of 'executive necessity'. The Court then looked at the facts in the present case. Environment has received a lot of attention in recent years. A number of notifications were issued under the Air (Prevention and Control of Pollution) Act, 1981 one of which prohibited the Board from giving permission to any industry which pollutes the air from being set up in Korba. Further, prior permission of SADA is required before any construction can be undertaken or SADA had the power to order demolition of any such structures.

Lime industries have been held to be an environmental hazard in the Supreme Court in Rural Litigation v. State of UP, (AIR 1985 SC 652). Further, SADA and the Town and City Planning Authority were not parties to the grant of lease. Thus promissory estoppel cannot apply to them. The provisional registration to manufacture lime given to the industry was itself irregular .Refusal of certificates was in public interest and when there is a clash between public and private interest the former must prevail.

On the second point of malafides alleged the Court looked at the entire facts of the case. Finally they relied on E. P.Royappa v. State of Tamil Nadu, (AIR 1974 SC 555) which held that "the burden of establishing mala fides is very heavy on the person who alleges it". The petitioner was unable to discharge this burden and so the Court held that allegations of mala fide were not proved.

Lastly, on the question of whether the petitioner had been discriminated, the Court found that permission to Vijay Lime Industries was first granted in 1983 before Korba was declared a pollution control area. Further permission had been refused to start a second plant in 1988. Vijay Industries had also undertaken to shift their present plant outside the area, on getting an alternate site. The Court concluded that just because one industry is already causing pollution there is no requirement to add to it. Further, the petitioner had acted in haste in commencing and completing construction. In R. L. E. K case , (AIR 1985 SC 692), the Court had said that though a certain order might cause grave hardship to the party, it is the price that has to be paid for protecting the people's right to live in a healthy environment with minimal disturbance of ecological balance. Thus, the Court directed the respondents to allow the petitioners convert their plant into any Industry which does not cause pollution and order the petitioners to start their lime industry in an alternate site.


Rebate from water cess for effective water treatment in industrial plant.

Tata Iron and Steel Ltd v. Union of India, AIR 1991 Pat 75.

Prabha Shankar & S.B.Sinha, JJ.

Sec. 3 of Water (Prevention and Control of Pollution) Cess Act (36 of 1977)

Constitution of India Art. 248, Schedule VII

The company is engaged in the production of steel. In addition it supplies drinking water to the city of Jamshedpur and maintains a large underground network for the disposal of sewage. The States under Art. 252 adopted the Water (Prevention and Control) of Water Act, 1974. The Central government under this Act has established a Central Board and respective State Boards. To secure revenue for them, the government introduced a cess on certain industries. If the company had installed treatment of sewage plants they were entitled to a rebate. The petitioners claimed that they had established such a plant and should receive the rebate. The respondent contended that as the petitioner had not installed a plant for the treatment of the entire sewage they were not entitled to any rebate. They further contended that they had the requisite authority to pass such an order. The respondents then challenged the ver validity of the Act.

The Court observed that 'water' falls under Entry 17 of List II. Entry 66 allows the State to charge fees on any matters in the List. However, Entry 97 of List I confers residuary powers on the Centre. The petitioner submitted that the cess is in the nature of a fee and not a tax and thus Parliament has no right to legislate on this point. Even if it were considered a tax it would come within the legislative competence of only the State government. The Court considered the various authorities on the point of distinction between a fee and a tax.

The purpose for which the fund is to be spent is not for the special benefit of the industries. It is imposed to ensure the preservation of the purity of the water. For these reasons the Court concluded that the cess was in the form of a tax. The power to tax falls into the residuary powers and thus the Parliament had the power to pass the Act. It is not ultra vires the Constitution.

As far as the second issue of rebate goes, the purpose behind the rebate was to encourage persons to set up treatment plants. The Court looked at the wording of Sec. 7 and Rule 6 to determine if all the waste had to be treated to avail of the rebate and concluded that the petitioners were entitled to rebate to the extent water was treated in their plant as long as the plant functioned smoothly.

The Court held that the question as to whether the imposition of Cess is in the nature of a tax, such tax can be imposed in terms of entry No.97 of list I of the 7th schedule of the constitution or not may be considered. Entry No.97 of list I of the 7th schedule of the constitution of India, on a plain reading, is in two parts. Firstly it contains a provision empowering the parliament to enact any laws in respect of any matter which is not covered by list II or list III of the 7th schedule of the constitution. However the words including any tax not mentioned in either of those lists are important. This entry has to be read with Art.248 of the constitution which reads as follows:

1) Parliament has exclusive power to make any law with respect to any matter enumerated in the concurrent list or state list.

2) Such power shall include the power of making any law imposing a tax not mentioned in either of those lists.

Further the court held that once it is established that power to impose tax is not covered by any entry in list II or list III of the constitution, it would be competent for the parliament to impose tax by making a legislation in this regard in exercise of its power under entry no. 97.

 

Environmental Education: The need to use the media in propagating environmental values in schools and in entertainment sectors.

M.C.Mehta v. Union of India, 1991 (2) SCALE 222

The petitioner prays for the issuance of a Writ so as to direct Cinema halls to exhibit slides containing information relating to environment in national and regional languages and for broadcast thereof on the All India Radio and exposure thereof on the television in regular and short programs with a view to educating the people of India about their social obligation in the matter of upkeep of the environment. Further the petitioner plead the Court to direct the Government in making the subject of 'environment' be made a compulsory subject in schools.

The Court considered the growth of environmental awareness in India. It also considered the scope and functions of law and our Constitution and concluded that the State had a duty to disseminate information amongst the citizens. It passed the following directions: 1) The Ministry for Environment was ordered to make the requisite slides. Government was ordered to ensure that they are displayed in the cinema halls.

2) The Ministry of Information and Broadcasting was ordered to make short films containing environmental information to be shown in cinema halls.

3) Ordered the All India Radio and Doordarshan to develop a plan to enable environmental education of the masses.

4) Ordered State governments, Education Boards and Central Government to introduce environmental education as a compulsory subject in schools and colleges in a graded way.

The court held that respondents 1, 2, and 3 shall issue appropriate directions to the State government and Union terriotories to invariably enforce as a condition of license of all cinema halls, touring cinemas and video parlours to exhibit free of coast atleast two slides/messages on environment in each show undertaken by them. The Ministry of Environment should within 2 months, shall come out with slides having effective materials on various aspects of environment and pollution. This shall be circulated directly to the collectors who are the licensing authorities for the cinema halls. Failure to comply with the order should be treated as a ground for cancellation of the licence by the appropriate authorities.

Further, the Court held that the Ministry of Information and Broad Casting of Government of India should without delay start producing information films of short duration on various aspects of environment and pollution, bringing out the benefits for society on the environment being protected and the hazards involved in the environment being polluted.

The Court accepted the principle that through the medium of education awareness of the environment and its problems related to pollution should be taught as a compulsory subject.


Conservation of wetland and their importance for ecological protection

M. C. Mehta (Badkhal and Sujratkund Lakes Matter) vs. Union of India (W.P. (C) No.4677/ 1985 decided on Oct.11, 1996)

Writ petition was filed by well know lawyer and Magsaysay award winner, M. C Mehta, seeking a direction to be issued to the Haryana Pollution Control Board, to control the pollution caused by the stone pushers, pulverizes and mine operators in the Faridabad-Balabgargh area. The Court had earlier ordered the Pollution Control Board to inspect the impact of mining operations on the ecology of these areas. Report submitted by the Board stated that the mining operations were carried out without any environmental planning and were causing much ecological degradation. Certain recommendations were made to minimize ecological harm, one of which was to stop all mining in the radius of 5 kms from the lake. In accordance the State passed an order stopping all such mining. The miners approached the Court and challenged the above order as unjust as pollution does not extend beyond 1 km. Requested the Court to take a second opinion from a body such as the National Environmental Engineering Research Institute (NEERI). The Court requested the NEERI to submit its report to the Court on the above point. It submitted its report with recommendations as to mining activities and the green belt development project.

The main issue in the case was to preserve environment and control pollution during mining operations within the radius of five kilometers from the tourist resorts of Badkal Lake and Surajkund be stopped?

On the basis of the two reports before it the Court concluded that the mining activities were harming the environment and must be stopped. The Court considered the geographical features of the area to determine the extent to which the ban must apply. It ordered that no mining activities would be carried out in a two km radius around the tourist spots of Badkal lake and Surajkund and no construction work would be undertaken in a five km radius. Also ordered the Forest Department and Mining department to enforce all the recommendations made by NEERI.

The court applied the "precautionary principle" in this case. It also observed the judgement of M. C. Mehta v. Union of India (1987) 4 SCC 463 where the court held that:

"The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, the tannery which cannot set up a primary treatment plant cannot be permitted to continue to be in existence for the adverse effects on the public. Life, public health and ecology have priority over an employment and loss of revenue problem".

Further, the court held that, "precautionary principle" has been accepted as a part of the law of the land.

The court also held that Articles 21, 47, 48A and 51A (g) of the Constitution of India give a clear mandate to the state to protect and improve the environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. The "precautionary principle" makes it mandatory for the State Government to anticipate, prevent and attack the causes of environment degradation.

 

Tourism and Environmental and wildlife protection

Niyamevadi v. State, AIR 1993 Ker 263.

M. M. Pareed Pillay, J.

The petition was filed as the petitioners contended that the proposed Noyyar Wildlife Sanctuary cum Biological Reserve will result in the denundation of the forests in Keral. That the proposed biological park would violate the Forest Conservation Act, as the Central Government consent has not been secured and if the project materializes it will pose a threat to the environment and the ecology. Further, construction of buildings in the Noyyar Wildlife Sanctuary is challenged by the petitioners on the ground that such construction will destroy the Agasthyamala and its environment which has been identified as a biosphere reserve by an international agency, the international Union for Conservation of Nature [IUCN], an affiliate Organisation to the United Nations Environment Programme. The petitioners also attacked the project report on the grounds that no steps have been taken to accommodate the tribals and the project is against the directions of the Court given in an earlier case, in which it was stated that no forest land should be diverted for any other purpose. The Principal Chief Conservator of Forests was directed by the Central Government that he ensure that no forest land is diverted for the park, thus, the State is acting in deliberate violation of the Centre-State relationship envisaged by the Constitution.

The State contends that the project is actually one of afforestation and has secured the permission of the planning Boards at the Centre and in the State and has been incorporated into the five year plans. The respondents contended that the forests were highly denuded and that the project had all the potentials for bio-conservation and development. It further submitted that the proposed site and Agasthyavanam are two different places. The area receives copious rainfall in the monsoons but the rains water is quickly washed away and there is severe shortage in the summer months. The park will ensure storage of water by the erection of minor check dams which will benefit the area as a whole. The concept of biosphere reserves was evolved to conserve natural resources ad the genetic material they contain. Only 16% of the total outlay was earmarked for staff quarters. Plus, most of the buildings were being erected outside the reserve on private land specially acquired. Construction of roads is permitted even under the Wildlife (Protection) Act.

The Court on observation held that the fact that a few trees may be cut in the development of the infrastructure for the reserve doesn't lead to the conclusion hat the forest is being plundered. On the question of quashing the acquisition of the lands, the Court held that the decision to establish the Reserve is an administrative policy decision. Secondly, there was no violation of any statutory or constitutional provision. In the absence of such violation, an administrative policy decision can't be challenged under Art. 226. The Court concluded that the petitioners would succeed only if they proved that the action of the government was a colourable exercise of its powers. The Court further added that when land is acquired in need of a public purpose the Court cant go into its bonafide as long as it is satisfied the action of the government is not fraudulent. The petitioners could not establish a case on this point.

On the contention that the sole purpose of the park was tourism, the Court considered the objectives of the project and found tourism was given the last priority. It also considered whether the project violates any of the provisions of the Forest Conservation Act and found it did not.

On the question of whether it could interfere with the decision of the government, the Court considered the various authorities on this point and concluded that as the government had consulted an expert committee and had formed an opinion as to the necessity of the project, the Court couldn't interfere with such decision.

The court relying on the judgements of Bahuleyan v. State of Kerala, 1981 Ker LT (SN) 87: (1982 Lab IC 233), where in that case the court held that in matters of administrative concern cutting for policy decisions or exercise of discretion by the Government so long as infringement of fundamental right is not shown courts will have no occasion to interfere and the court will not and should not substitute its own judgement for that of the executive in such matters. In assessing the propriety of the decision of the government, court cannot interfere even if a second view is possible from that of the government.

The court also observed the judgement given in Kerala Public Service commission v. Pylo 1986 Ker. LT 46 (1986 Lab. IC 1440) wherein the divisional Bench held that the correctness of the reasons which promoted the decision makes taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the right forum for such investigation. As the State government has considered the idea of establishing biological park which in turn facilitates afforestation and protection of the forest wealth it need not be doubted so long as there is no material to hold that it is actuated by malafides. So long as it has not been established that the state government is moving on extraneous considerations the court cannot and should not interfere.

 

Air Pollution: Health hazards in Urban cities

M. Purushothaman v. Union of India, AIR 1993 Ker 297.

K.T.Thomas, J.

This petition focuses attention on the consequences of air pollution created through uncontrolled and unmitigated automobile spitting and hence prays fro appropriate directions to be issued to officials concerned for enforcing the statutory measures.

This writ petition was filed alleging unbearable and polluted air being caused on the public roads in Kerala, its harmful effects and prayed for issue of directions to the concerned officials to enforce the established environmental statutory measures. The government submitted a report listing out measures undertaken to tackle the problems stated in the plaint. The Court also directed the setting up of a Committee to look into the matter. Later the Committee submitted a report with recommendations.

The Court held that automobiles could be ranked as one of the chief sources of air pollution. The Court considered the work of the Environmental Protection Agency, in the US which has developed standards for restricting pollution caused by new vehicles. It then looked at the Central Motor Vehicles Rules, 1989 which takes its cue from the Air (Prevention of Pollution) Act, 1981. The various rules seek to restrict pollution. The state government had not implemented the measures to reduce pollution as it apprehended that the Central government was going to amend the Rules. The Court criticized this lethargy on the part of the state.

The Court gave the following directions:1) The State Government must provide at least one smoke meter and gas analyzer

in every District Center.

  • Such equipment should be provided at other places at the earliest too.
  • The state should issue directions that all vehicles to be registered must comply with

Sec. 20 of the Air Act.

  • State must ensure compliance with Rule 116 of the Central Motor Vehicles Rules.
  • At the end of 3 months a report must be filed in Court on the implementation of R. 116.

Sustainable use of forest resources for developmental needs

Executive Engineer v. E&E Protection Samithy, AIR 1993 Ker 321.

Jagganadha Rao,C.J., K.Sreedharan, J.

The petitioner filed a petition for issuance of a writ of prohibition, prohibiting the respondent from cutting bamboo in the Attappady area in Kerala. The right to cut bamboo was auctioned on 5/1/1989. Later the respondents offered a higher price. A re-auction was held and the respondents were given the contract to cut the bamboo. The Court instituted an expert committee to look into the question of environmental damage caused due to the cutting and consequent sale of the bamboos. The committee reported that the already cut bamboo was deteriorating in quality and must be disposed of at the earliest.

The area in which the bamboo was located was not part of any Reserve Forest. The bamboos were being cut leaving the stumps. Thus, they would soon regrow. The Court considered a number of cases and concluded that the Court must ensure that the petitioner is a bona fide litigant really interested in public welfare and not a mere busybody seeking publicity. Interference in writ jurisdiction in environmental matters can be resorted to only if the Court is satisfied that the Government or other body has not taken note or considered the relevant factors or parameters or if they have committed to notice or failed to consider relevant factors.

After considering the Report, the Court concluded that the Committee had not gone into the effect of cutting the bamboo on the ecology. Thus, the report was defective to that effect.

The Court considered all the facts and held that since considerable delay had already been caused the Government was ordered to complete the entire exercise of cutting the trees within four months from date of judgement.

Open stone crushing creating health hazrd, the right of residents for environmentally clean air

Ishwar Singh v. State, AIR 1996 P&H 30.

R.P.Sethi and S.Sudhalkar, JJ.

In pursuance of the decision of the Supreme Court in M. C. Mehta v. Union of India, the Haryana Government had issued a notification identifying parameters within which stone crushers should not operate. This petition was filed because inspite of the Courts decision and government notification, stone crushers had not moved out of the Naurangpur Village. The stone crushers work poses a health hazard. The government submitted that the question of whether the stone crushers were meeting requirements was being looked into. Further they didn't affect the village as the wind direction was away from the village. They were located in the foothills and had been provided with proper air pollution control measures.

The respondents contended that the stone crushing units caused no pollution as safety measures were in place. Plus, by the notification the whole of Haryana had been declared open for stone crushing. Only prior permission of the Pollution Control Board was required and the respondents have filed for the same.

The petitioner then submitted that the notification prohibited stone crushers within 1 km of the village abadi and in forest areas. The question was basically from which or what point to calculate 1 km ?. The petitioners and respondents wanted the distance to be measured from different points and submitted arguments on which point was more just and why. The Secretary to the Government of Haryana, Environment Department, has clarified this point. Further the Regional Officer, Gurgoan submitted that all the 21 stone crushing respondents were located within 1 km of the village.

On the question of maintainability of the writ, the Court considered the authorities which have laid down the tests to determine whether a person has locus standi to file the case or not. The Court held that respondents had placed no evidence before th Court to substantiate their claim that the petitioner would be the only beneficiary from the issuance of the writ. It was alleged that he owned land in the area where the stone crushers were to be shifted. Court held that the petition was on a point of public importance and did not appear to be palpably malafide or illegal. The petition was maintainable.

The Court considered the judgement given in M.C.Mehta v. Union of India and the notifications issued by the Haryana government. The Court also considered the various national and international instruments governing environmental law. It perused the report of the project entitled Health Effects of Environmental Pollution due to Stone Crushers in Haryana State sponsored by the Environment Department, Government of Haryana. It stated that stone crushers were a health hazard and suggested measures to minimise the health risks.

Thus, the Court felt that the respondent officials have not complied with their duties of ensuring compliance with the notification. In response to the respondents' contention that any such writ would amount to restriction of their fundamental right to do business, the Court held that enjoyment of fundamental rights is subject to reasonable restrictions. It was essential for a developing country like India to maintain a balance between its economy and ecology.

The Court disposed of the petition with the following directions:

1) All private stone crushers will shut down their business and move it to the zones identified within one month of judgement.

2) The State government should take all steps to ensure the stone crushers move their business.

3) All stone crushers located at the present location will be deemed to have wound up their business at the end of one month and will not be allowed to carry on their business for any reason.

4) The petitioner cannot sell his land located in any of the identified zones to any of the respondents.

5) The citizens of the area can claim compensation for any health problems caused due to the pollution.

6) Copies of the judgement are to be sent to the State of Punjab and Chief Secretary of State of Himachal Pradesh.

Right so Indigenous people to exploit the local resources for their basic means of livelihood

Animal and Environmenat Legal Defence Fund v. Union of India, 1997(2) SCALE 493.

A.M.Ahamadi, CJ, Sujata Manohar and Venkataswamy, JJ.

Wild life (protection)Act, 1972 and

Sec. 26(1) (i) of the Indian Forest Act, 1927.

The petition challenges the granting of 305 fishing permits to the tribals of the Pench National Park in the Totladoh Reservoir by the Chief Wildlife Warden, Forest Department, Government of MP. The Pench National Park is a Reserved Forest. Under the Forest Act, 1927 once a area is notified as reserved a right can be acquired in it only by succession. It was contended that the ancestors of the tribals held no such right and thus the permits given in pursuance of such rights were wrongly issued.

The Court considered Art. 48A and 51A(g) of the Constitution, the Wild Life Protection Act, 1972. Under Sec. 33 (e) of the Act the Chief Warden had the power to "regulate any fishing". This power was taken away by an amendment. But the Court held that the permits had been granted to the tribals in lieu of their traditional fishing rights before the area was declared a reserved forest and thus Sec. 33 would not apply. Plus, the interests of the tribals must also be kept in mind. Though it might have been preferable to provide the tribals with other fishing grounds, the permits were held valid in law. However, the Courts imposed certain restriction such that fishing will be banned in the rainy months and so on.

The Court held that under sec. 33 (3) of the Wild Life (Protection ) Act [as it stood prior to its amendment in 1991, has been deleted by the amendment made in Sec. 33 in 1991], every attempt must be made to preserve the fragile ecology of the forest area, and protect the Tiger Reserve, the right of the tribals formerly living in the area to keep body and soul together must receive proper consideration. Further the Court held that effort should be made to ensure that the tribals when resettled, are in a positive to earn livelihood.

Further the court directed the State Government to act with a sense of urgency in matters enjoined by Art. 48A of the constitution keeping in mind the duty enshrined in Art. 51A (g).

Industrial activity in a residential locality: balance between nuisance and environment.

Krishna Gopal v. State of M.P., 1986 Cr.L.J. 396 (M.P.)

The proceedings in this case were begun by the lodging of a complaint before the District Magistrate, Indore, alleging that a factory for the manufacture of glucose saline was being run by M/s Caplic in Manoramaganj, which was a residential locality, and that this factory used a boiler which was the cause of loud noise, spraying of water and acids into the neighbouring houses, and a large amount of ash being emitted into the atmosphere, and therefore causing public nuisance. A report was called for from the police station concerned, and on the basis of that report, a show cause notice was issued to Krishna Gopal, the owner of the house.

The petitioner replied that he had obtained a NOC from the Joint Director, Town and Country Planning, who was the appropriate authority in this case. The municipal corporation had also permitted the running of a factory in a residential locality. The petitioner also denied all allegations made by the complainant of public nuisance being caused. He also argued that nuisance caused to just one person in the locality would not amount to public nuisance.

The Court rejected the argument of the petitioner that public nuisance could not be alleged when only one person had filed the complaint. It said that it was not the intent of the law that the community as a whole or a large number of persons have to come forward to protest against a nuisance. It recognised the wide nature of the powers granted to the Magistrate in S.133 of the Cr.P.C., which empowers the magistrate to take action for the removal or regularisation of a public nuisance. Since the actions complained of in this case clearly come within S.133 (1)(b), which defines the conditions in which this power may be exercised, the Court confirmed the order of the SDM.

The Court also issued a severe reprimand to the authorities for allowing a factory to be run in a residential area, and for their apathy in not removing the nuisance from the locality even after the period within which 'K' had sworn to remove the factory from the area had expired.

The Court made a number of observations about the deleterious effects of air and noise pollution and the role of town planning authorities in protecting citizens from the same.

In this case the Court has recognised the air pollution which would widely affect the society at large but at the same time the society is sensitive towards these issues. The court held that though pollutants discharged from the "chimney" knows no frontiers of localities and very often they lead to damage not only to locating or the particular area when pollution originates but also to the neighbouring localities and adjacent areas. Breathing itself becomes a problem in cases of air pollution and the PCB officers are entrusted with the task of abating air pollution in residential localities. Further the court held that unfortunately wilful and knowing violations of laws resulting in air pollution caused by auto exhaust radiation and gas pipe line safety standards are not considered crimes under the relevant statutes even if lives are lost as a result. The environmental crimes dwarf other crimes to safety and property but the position of law as it stands in the matter of sentencing such environmental crimes is rather comfortable.

Further the court held that a vagrant committing a petty theft is punished for years of imprisonment while a billion dollar price fixing Executive or a Partner comfortably escapes the consequences of his environmental crime.

The society is shocked when a single murder takes place but air, water and atmosphere pollution is merely read as a news without slightest purturbane till people take ill, go blind or die in distress on account of pollutants that to resulting in the filling of pockets of a few.

Further the Court has also recognised the noise pollution from Motor Vehicles. It has been held by the Court that auto exhaust is a great cause of environmental pollution. The automobile emissions alone account for 70% of Carbon monoxide, 50% of hydro carbons, 35% of particulars and oxides of nitrogen in the atmosphere but the air pollution in the environment caused by industrial emissions is yet another contributor. If environmental pollution is to be extirpated firstly it should not be permitted, must be prevented and if at all it takes place should be sternly dealt with.

The court has stressed the need of the provision in the existing law which makes the pollution a serious offence and the need of rigorous punishment for environmental pollution.

Municipal Corporation extending residential layouts encroaching areas which were originally designated only for industrial activity.

F.B. Taraporawala v. Bayer India Ltd., (1996) 6 SCC 58.

Environment Protection Act, 1986;

Constitution of India.

Bayer India Ltd. and some other industries approached the High Court of Bombay by a writ petition and raised the matter alleging that the Municipal Corporation, Bombay, having granted permission for construction of residential complexes within an area clearly demarcated as an area reserved for industrial use in the sanctioned plan. The High Court asked the Corporation to re-examine the sanction. However, the petitioners appealed to the Supreme Court, which ordered a review petition to be heard. The High Court in review ordered stoppage of all further construction and a stay on all modifications of existing constructions within that zone. This order is challenged in the present appeal.

The appellants contended that the restrictions caused injustice to the residents of the locality by giving the industrialists a prohibition of construction in a 1-km radius zone in a crowded place like Thane. The appellants argued that this adversely affected the right to reside in that locality, at the same time leaving those who were already resident in that zone exposed to the risk of a leakage from the Chemical Factory. The alternatives before the Court were either to let the industrialists safeguard their interests in such a case by obtaining ownership of the area in question or to shift their factories to such places where the residential area could be kept wide apart from the factory premises. The respondents were not open to either of these proposals because of the huge financial and logistical burden involved.

The Court decided that asking the industrialists to acquire ownership of the area was indeed unreasonable. The Court itself felt that it had neither the expertise nor the information required to make a decision on the question of relocation. It therefore directed the Central Government to constitute an authority under S.3(3) of the EPA, 1986, within one month, which would examine this question. The philosophy of the Act and the objectives of the authority were not discussed by the Court. It however, made a reference to the concept of sustainable development call upon one and all to see the need for a balance to be struck between development and its sustenance in the future.

The Court ordered the Municipal Corporation to proceed with the plans submitted by the appellants and to allow the sanction based on the new bye-laws even for those that had already been sanctioned under the old ones but on which construction had not started.

The Court found it very difficult to give the relief as a result of growth of cities, where the restrictions for reserving certain areas as residential areas and some areas as residential areas and some areas as industrial areas is practically not possible.

The Court held that industrial growth, yes, but by exposing a large segment of society to the risk of losing lives, no. This apprehension is not imaginary. Bhopal Disaster brought to the knowledge of all of what happened there more than a decade ago, industrialists engaged in production of chemicals started thinking of taking precautionary land protective measures to see that if worst were to befall, how could their financial liability be taken care of.

The Court held that, the concept of "sustainable development", whose salient points have been noted in Vellore citizens' Welfare Forum v. Union of India (1996) 5 Sec 647, has called upon one and all to see the maintenance of balance between development and its sustenance in future.

Further the Court held that this the problem involved in the present case has more serious consequences and which touches the core of Art. 21 of the constitution in as much as the very lives of the inhabitants living around the factories in question are in great jeopardy so much so that any probable accident in the factories may see annihilation of a large number of inhabitants. The Court held that the question of relocation of industries is a matter which requires a deeper probe and hence directed to constitute on authority under Sec. 3(3) of the EPA by the Central Government.

Who would be the officer in charge of the affairs of a Company, if the Company is found guilt of violating the provision of the Water Act.

Mahumaud Ali v. State of Bihar AIR 1986 Patna 133

S. S Sandhawalia, CJ., P.S. Sahay & S.S.hamshul Hasan, JJ.

The State Pollution Board had filed a cases against M/S Paper and Cardboard Faxtory Pvt. Ltd. under the Water (Prevention and Control of Pollution) Act, 1974 for discharging vast masses of polluted water and other effluents into the river from their factory .During the trial it was determined that Mohumad Ali, the MD was in charge and responsible to the Company for the conduct of business both at the time of the commission of the offence and at the time of his deposition. Thus, he was also charged under S.47 of the Act. The Trial Judge issued an order of process against him. Aggrieved by this the petitioner filed this suit. The primary ground is that this complaint was not included in the plaint submitted earlier.

(1) Whether S. 47(1) of the Water (Prevention and Control of Pollution) Act, li 1974, necessarily mandates the incorporation of the words "he was in charge of and was responsible to the company for the conduct of the business of the company" in all complaints against the Chairman or Managing Director, or General Manager of the Company for offences in contravention of the Act?

(2) Whether S.47(1) of the Water (Prevention and Control of Pollution) Act, 1974, inflexibly mandates the incorporation of the allegation that the offence was committed with the consent and connivance or was attributable to the neglect on the part of the Chairman or MD or GM of the Company in the complaint itself?

(3) Whether R.N. Dutta v. State and a long line of precedent taking a similar view both earlier and subsequent thereto with regard to the pari materia provisions of S.l O of the Essential Commodities Act lay down the law correctly?

The Court considered the scope of Sec. 47, of the 1974 Act. As it is a beneficent legislation it must be liberally construed. Thus, Sec. 47 (1) creates a deeming fiction that all persons who are responsible for the business of the company will be criminally liable for an violations committed by the company under this Act. It held that this section imposes strict vicarious criminal liability. However, 2 defences are available. He can avoid liability if he can prove the acts were done without his knowledge or he exercised all due diligence to prevent the commission of the offence. Deeming fictions need not be expressly pleaded. It was not disputed that Mahumad Ali was the MD of the firm. The factum of being MD is sufficient to impose liability on him. A separate complaint need not be made. As far as he was not accused before the trial started does not prevent the Courts from adding his name to the list of accused at any time during the trial, if the prosecution adduces evidence to show any such person was also guilty of committing the offence. Thus, the Court held that Question no (1) must be answered in the negative.

The Court then Considered the scope of sub sec. (2) of S. 47. They concluded that its scope was slightly different from sub sec. (1 ), as the former was applicable only to persons directly in charge of and responsible to the Company and the latter brought under its purview more officers if it could be proved the act was done with their consent, connivance or neglect. It was thus, both a rule of evidence and a deeming provision for vicarious liability .It had been established earlier that for a deeming provision, the ingredients need not be expressly pleaded. Thus, the Court concluded that sub sec. (2) of S.47 does not require the plaint to plead that the offence was committed with the consent and connivance of the MD or Directors. Thus, the 2nd question was also answered in the negative.

Since the case of the petitioner was based on the law laid down in R.N .Dutta, the I ! Court considered S.10 of the Essential Commodities Act and concluded that barring minor inconsistencies both S.10 of the Essential Commodities Act and S.47 of the Water : (prevention and Control of Pollution) Act, 1974 are pari materia. The Court considered R.N.Dutta and the long line of precedent after it. The Court opined that the decision in R.N.Dutta was specific to the extraordinary facts in that case. Later judgements have misconstrued the ratio in this case, to mean that until it is proved that the act was done with the consent and connivance of the Directors no liability can be imposed on them. This is problematic as S.47 is a deeming provision and thus a presumption is created in law, the moment it is established that certain persons are the Directors of the Company. The Court concluded that the position of law had been wrongly laid down and answer to question 3 is in the negative. The case was dismissed.

Cases decided on applying the 'principles and 'doctrines'

The Majra Singh v. Indian Oil Corporation, AIR 1999 J & K 81.

A plant for filling cylinders with LPG was being located in the vicinity of the Village Kartholi, Tahsil Samba in the District of Jammu. The petitioners filed this writ petition for the writ of mandamus to restrain the same on the grounds that this would be injurious to the health of residents of that local area.

The respondents said that all steps had been taken, with a view to see that no hazard is caused, that all safeguards under the pollution control laws had been taken and these would be implemented, and that the J&K State Pollution Control Board had also given clearance. The respondent also assured the Court that all safeguards imposed by the Board would be followed.

The Court referred to the doctrine of the Public Trust, that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be unjustified to make them the subject of private ownership. They should be made freely available to everyone irrespective of their status in life. The Courts said that this concept had become a part of the Indian legal thought process, and part of Art.21 of the Constitution. The Court also referred to the Precautionary principle and the polluter pays principle expounded in earlier cases and to the fact that they are now considered part of the law of the land under Art. 21. Reference was made to the DPSPs, especially to Articles 47, 48-A and 51-A(g) and to the post independence legislation regarding environmental protection.

The Court therefore directed that the project could be continued as long as the authorities took due precautions to prevent pollution and setting up of temporary shelters, plant trees and first preference in employment be given to the local residents.

The doctrine enjoins upon the government and its instrumentalities to protect the resources for the enjoyment of the general public. The court held that though the public trust doctrine under the English Common Law extended only to commerce and fishing, the American courts have expanded the concept of the public trust doctrine in protecting all ecologically important lands.

The court took notice of para 32 of the judgement given in M. C. Mehta v. Union of India, 1997 (2) Sec. 353, the Court held that the precautionary principle and the pollution pays principle are essential features of 'sustainable development'. The precautionary principle in the context of the municipal law means:

i) Environmental measures by the State Government and the statutory authorities must anticipate prevent and attack the causes of environmental degradation.

ii) Where there are threats of serious and irreversible damages, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

iii) the 'onus of proof' is on the actor or the developer/industrialist to show that his action is environmentally benign.

The polluter pays principle as interpreted by the court means that the absolute liability for harm to the environmental extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of 'sustainable development' and as such as polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology.

Water Pollution

Amar Singh v. Union Territory of Chandigarh, 1993 Pun L R 393.

Water (Prevention and Control of Pollution) Act, 1974;

Constitution of India

The petitioners were landowners in Punjab and had been irrigating their lands by lifting sullage water from the sewers of the administration through pumpsets on the payment of certain charges. The supply of sullage water was suddenly stopped and officials of the administration told them not to use their pumpsets to lift water anymore, and if they did, criminal proceedings would be initiated against them.

The petitioners claim that the supply was stopped because they had challenged the acquisition of their property by the respondent authorities. The respondents pleaded that untreated sullage was permitted to be drawn by the petitioners and other farmers at one time, but it had then been stopped as the Pollution Control Committee had served a final notice on the Chief Engineer, Public Health, requiring him to stop the use of sullage water for irrigation as the same was resulting in pollution and contamination. Grant of further permission to use sullage water would have been a violation of the Water (Prevention and Control of Pollution) Act, 1974, and the concerned officials would have rendered themselves liable to prosecution under the Act, they said. Also, the respondent administration had set up a sewage treatment plant which would require the entire sewage so that the same can be treated and re-used.

The Court held that the act of the respondents was completely justified and could at worst be considered a breach of contract, and therefore dismissed the petition.

The Court held that the Administration has been supplying sullage water to the petitioners and other farmers for irrigation purposes against charges as fixed by the department from time to time. Thus it is only a contract between administration on one hand and other farmers including the petitioner on the other hand. Non - supply of sullage water can at the most be described as violation of a contractual obligation on the part of the administration and it is not the case that the sullage water is being supplied under any statutory contract.

Duty of the State to protect and improve the health of the citizens while providing safe drinking water.

Hamid Khan v. State, AIR 1997 MP 191.

The State of M.P. had provided tube-wells for the supply of drinking water to certain villages. Before digging the tube-wells, certain tests had to be performed to determine the potability of the water. There was no test for fluoride content among the tests prescribed. Due to the high fluoride content of the water, a number of people had contracted skeletal and dental fluorosis. This matter was brought to the notice of the Court through this PIL.

The Court recognised that the State had failed in its duty under Art. 47 of the Constitution and under A. 21, to improve the health of public providing safe drinking water. The Court directed that all the persons who are suffering from skeletal and dental fluorosis as mentioned in the list prepared by the Collector of that district be given free medical treatment, and if surgery be required, the person be given Rs. 3000 over and above the cost of treatment, and the others, Rs. 200.

The relief in the judgement is mainly based on the duties imposed on the state under various articles of our constitution. The Court held that, under Art. 47 of the Constitution of India, it is the responsibility of the State to raise the level of nutrition and the standard of living of its people and he improvement of public health. It is incumbent on State to improve the health of public providing unpolluted drinking water. The Court also held that under Art. 21 of the Constitution of India it is the right of citizens of India to have protection of life, to have pollution free air and pure water. The court also observed the Case, Subhash Kumar v. State of bihar, AIR 1991 SC 420, where it was held that a right to life includes right to live properly and have the benefit of all natural resources ie,e unpolluted air and water.

Further a court held that, right to live is a fundamental right under Art. 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have resource to Art. 32 of the Constitution for removing the pollution of water or Air which may be detrimental to the quality of life.

Santosh Kumar v. Environment Ministry, 1998 (2) JLJ 61.

Air (Prevention and Control of Pollution) Act, 1981;

Motor Vehicles Rules

The petition was filed in public interest in respect of pollution of the air of the city of Gwalior and the area around on account of plying of a large number of motor vehicles using unauthorised kerosene oil and diesel, causing health hazard to the residents.

The petitioners contended that the policy of pollution control adopted by the government of Maharashtra was inadequate. The respondents revealed that they had already begun to take measures for the reduction of pollution by vehicles, by checking vehicles and fuel for unauthorised use of fuel. The Court, however, found that the checking staff were inadequately equipped and that the Air (Prevention and Control of Pollution) Act, 1981 and Motor Vehicles Rules (Control) were not being followed.

The Court issued directions that 4 smoke meters and gas analysers be provided for Gwalior, other latest and less time consuming instruments be provided to check emissions of carbon monoxide. The Court directed the State Government to direct the necessary authorities to ensure compliance with the laws, and to identify the roads that could be converted into one-way lanes. The Additional Advocate General for Gwalior would obtain reports in respect of the compliance with the Motor Vehicles Rules and submit the same to the Court within three months.

In the judgement, the Court have stressed for strict compliance to the provisions of Air Act and to Central Motor Vehicles Rule. It has been held by the court that, though a scheme was prepared for checking the pollution by the State government and necessary directions were given to different departments, a strict compliance have not been ensured and the pollution is increasing every day.

The necessary compliance of Sec. 20 of Air Pollution Act and Rule 116 of the Central Motor Vehicles Rules are not being made. No efforts are being made for strict compliance of sec. 20 of the Air Pollution Act and the machinery concerned is not strictly observing the provisions of Rule 116 of the Central Motor Vehicles Rules. The Court held that, no doubt that the human life is more important than the vehicle and traffic. The law and the rules are framed in this respect to ensure environmental cleanliness and the authorities are under statutory obligation to maintain the atmosphere pollution free and to take necessary measures in this respect as provided under the statutes.

Concern for Calcutta v. State of West Bengal, 1996 (1) CHN 123.

West Bengal Inland Fisheries Act, 1984; West Bengal Town and Country (Planning and Development) Act, 1979; Calcutta Metropolitan Development Act, 1972; Calcutta Municipal Corporation Act, 1980; Calcutta Municipal Corporation Building Rules, 1990.

The authorities of the Indian Museum decided to erect a multi-storeyed complex by encroaching and filling up the major portion of a 200 year old water tank in the campus of the museum. The petitioners filed the petition against this decision of the authorities to go ahead with the said cosntruction.

The petitioners urged that under the West Bengal Inland Fisheries Act, 1984, the tank could not have been filled up for the purpose of construction of any building thereon. They also pleaded that similar restrictions were imposed under the West Bengal Town and Country (Planning and Development) Act, 1979, unless permission to build was given by the appropriate authority. No permission had been obtained from the Calcutta Municipal Corporation. The petitioners also submitted that the tank had been notified as a protected water body and that great ecological imbalance would be caused by the proposed filling up. The respondents agreed on the historical, ecological, educational and environmental importance of the tank. The CMD had recommended the museum proposal be accepted on the condition that the present 2 premises of the museum be amalgamated. Conflicting reports by different people were submitted to the Court regarding the impact on bio-diversity.

The Court held that when the ultimate area of a water body was not going to be affected by raising a construction, there was no chance of ecological imbalance. It also observed that unless a water body was being used for pisiculture, the Inland Fisheries Act would not apply to it. The Court also held that under the existing law, no permission was required to be taken for the purpose of development on any land. The Court also observed that it would be inappropriate for the Court to interfere where the appropriate authorities have allowed the construction, unless a serious ecological and environmental problem can be shown to have been caused by it.

Regarding the provisions of the West Bengal Inland Fisheries Act 1984, and the provisions of Sec. 17A there of, the Court held that, the Act was enacted to provide for the conservation, development, propagation, protection, exploitation and disposal of Inland fish and fisheries in West Bengal.

With regard to Sec. 17A the Court held that this provision prohibit the filling up of any water area with a view to covering it into solid land for the purpose of construction of a building there on or for any other purpose. Makes it clear that the water bodies which were being used as fisheries clause (c) of sub -sec. 91) of Sec. 17A indicates the nature of water area and provides that the same should not be put to any use which may result in abolition of the fishery . The provisions of clauses (b) and (c) of Sub. Sec. 91) of Sec. 17A of the Act refers to holdings of the nature indicated in clause (a) namely, water areas used for purposes of pisci culture.

Town and Country Planning: The role of environmental values in Urban planning

V. Lakshmipathy v. State of Karnataka, AIR 1992 Kant 57.

Karnataka Town and Country Planning Act, 1961; Karnatake Municipal Corporations Act, 1976; Urban Land (Ceiling and Regulation) Act, 1976; Bangalore Development Authority Act, 1976.

The petitioners in this writ petition were aggrieved by the location and operation of industries and industrial enterprises in a residential area in violation of the provisions of the Karnataka Town and Country Planning Act, 1961. In respect of these areas, agreements were executed between the City Improvement Board and the owners to develop them in accordance with law but this was not done. The health and Municipal Administration department of the State of Karnataka issued directions so as to hand over these to the Corporation in 1972 but this was also not done. Taxes were being imposed and collected by the Corporation. Essentially, the land had become no-man's land due inaction and abdication of power and responsibility by the CITB [City Improvement Trust Board]. Another grievance of the petitioners was that of acute pollution affecting the environment on account of pollutants such as smoke, vapour and noxious emanations posing a danger to the health and hygiene of the residents. There was also a complaint of noise pollution.

The petitioners sought a declaration that the change in land use from residential to industrial was violative of the Town Planning Act and therefore all consequential actions relating to such land use are illegal and all licenses issued in pursuance of the same are void.

The Court allowed the writ petition. It also issued a mandamus to the Corporation and its Health Officer to abate the pollution and also a direction to the Bangalore Development authority to stop operation of the industrial units and carry out the lay-out work in accordance with the law. The Court also directed that action should be taken within 60 days and awarded costs to the petitioner.

In the judgement, an elaborate discussion has been made with regard to the protection of environment. The court has considered the problem in the case as larger problem that affects the future generation. The court has recognised various constitutional provisions to protect environment.

The Court held that the movement for restoration and maintenance of a livable environment requires curbing the power of narrowly oriented administrative agencies in the appropriation of dwindling average of land and water not already irrevocably appropriated.

The court held that the explosion of grave concern for environment at any private phenomenon of recent times. The sporadic and unorganised struggle of environment stragglers. The wild life and bird lovers, wilderness wanderers have identified the conservation movement of the environment and are focusing their attention on denuded forests, balding hills, disappearing prairie, actinide species of rate fish, thinning wild life and vanishing birds. The movement has become the crusade of any one almost everywhere for a "livable environment". There is an increasing awareness that is cleansing up our environment, if not in wilderness, lies the preservation of the World.

Further the court held that it is looking into a decade in which most of the people who are living in urban areas are chocked by traffic, poisoned by water, suffocated by smog, deafened by noise and terrorized crime.

Further the Court held that restoring nature to the natural state is a cause beyond party and beyond factions. It has become a common cause of all the people. Particularly the young Indians, because they will reap the grim consequences of our failure to act on the programmes which are needed now if we are to prevent disaster later. An onerous obligation which we owe to posterity is clean air, water, greenery and open spaces, and held that there ought to be elevated to the status of birth right to every citizen.

Further the Court had recognised the Constitutional provisions to protect environment such as Art. 48A which lays down that the state shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. And Art. 51A(g) which exhorts the citizens to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. Part IVA which impose fundamental duties.

Finally the Court held that the mandate of our constitution is to build a welfare society and legislations made in that behalf to give effect to directive principles of state policy have to be respected. If the constitutional obligations are not discharged by due enforcement by the administrative agencies, the court cannot turn a Nelson's eye. The fundamental duties are inclined to promote people and participation in restructuring and building a welfare society and the Directive principles under Part IV are intended to build environment and its preservation is a subject of both, thus emphasising the importance given to it by the constitution. Protection of environment is a constitutional priority. Neglect of it is an invitation to disaster.

By recognising till the above mentioned points the court held that environment protection is not a pre occupation of the educated and the affluent. It has the socio political dimensions. The disposal and control of toxic water and governmental regulation of polluting industries is public interest oriented. The effective implementation of environmental legislation is a social learning process which could fundamentally change the character of public administration in the country. From a global perspective, the struggle to preserve a livable environment is the part of a border struggle to create a more just global society both within and between nations. The impact of the human dimensions on the economically and educationally dis advantaged who inhabit the developing areas cannot be underscored.

The court held that the right to life inherent in Art. 21 of the Constitution of India does not fall short of the requirements of qualitative life which is possible only in an environment of quality. Where on account of human agencies, the quality of air and quality of environment are threatened or affected. The court would not hesitate to use its innovative power within its epistolary jurisdiction to enforce and safeguard the right to life to promote public interest. Specific guarantees in Art. 21 unfold penumbras shaped by emanations from those constitutional assurances which help give them life and substance. In the circumstantial context and factual back drop, judicial intervention is warranted especially since the Supreme Court of India has already laid the foundation of juristic activism in unmistakable language of certainty and deep concern.

Patenting and Environmental Concerns

Research foundation for science, technology and ecology and others v. Ministry of agriculture and others [1999] 1 SCC 656

The Apex Court adjourned the present case. In response to the notice issued by the Court, the Attorney General was present and submitted that the draft outline of the proposed bio-diversity legislation was circulated and comments were received and thay will be taken into consideration when the legislation is drafted.

It was further pointed out by the Attorney General that insofar as the patent of 'basmati rice' is concerned, the Government of India has already taken steps to engage legal experts to re-examine the grant of patent in America and the Government of India shall take all possible steps to protect the national interest and rights of its people. It is submitted that some more legislation are also being contemplated to deal with various situations arising therefrom.

Hence, in view of the above submissions the Court adjourned the matter for 4 months.

Air and Water Pollution by Industries

Abdul Hamid v. The Gwalior Rayon Silk Mfg. and others.[1989] Cri. L.J 2013

The petitioner laid information for action under s.133 of the Cr.P.C. before the Sub. Divisional Magistrate on the basis that the Gwalior Rayon Silk Mfg. Co., I. B. Parikh and 18 others connected with the Grasim, the chemical factories and the hospital run by the Janseva Trust are responsible for polluting the air as also the water of river Chambal near Birlagram. And this has led to the death of children, animals and the water creatures. It was also stated that the pollution causes various disease among the people and crops are also damaged.

On the other hand it was contended that the by the other side that the in respect of the acts constituting offenses under the Water Act,1974 and Air Act,1981, previous written sanction of the State Boards constituted thereunder is necessary. These Acts deal with pollution by trade or industry. The SDM upheld the contention of the non-applicants and rejected the petitioners' prayer. Aggrieved by the order aforesaid the petitioner has come to this Court in revision.

Taking into account of the various provisions of law [Ss. 24, 49 &60 of Water Act; and Ss. 43 & 52 of Air Act] it was pointed out by the Court that the express legislative mandate regarding previous sanctions cannot be permitted to be whittled down by labelling the act complained of as an offence, not under the special Act but under Indian Penal Code . prosecution for an act which is an offence under the special Act, by any agency other that the competent Board, on the ground that it is also an offence under the Indian Penal Code can be characterized as colourable because the offences under the special acts are graver ones and labelling the Act as an Indian Penal Code offences is just to evade the requirement of previous sanction under the special Acts.

Finally it was held by the Court that in view of the special acts the learned SDM was right in holding that he had no jurisdiction to proceed with the matter which is in relation to acts which constitute offences under the Water and Air Acts. Hence, the revision petition was dismissed.

Hygienic eaters and hotel and health hazards: Role of the legal system in controlling the spread on epidemic diseases.

M/s. Ganesh Bhavan v. Health Officer, Corporation of Madras, AIR 1994 Mad. 119 Bakthavatsalam, J.

A petition was filed for issuance of a writ of prohibition, prohibiting the respondents from ordering closure of the eating houses of the petitioners. A no. of writ petitions on the same point were clubbed together. Petitioners alleged that on a surprise inspection of the various eating establishments, was carried on by the Direction of public health, water samples were not collected in conformity of the procedure laid down under the prevention of food adulteration Act, 1954 (Sec. 11-B), Subsequently, they received a notice that the water had been found to be poor quality and this raised possibility of transmission of diseases. This order was challenged as being arbitrary, violative of Art. 14 of the Constitution and of principles of natural justice. It was also challenged as being ultra vires the prevention of food adulteration Act as Sec. 113 did not authorise the officer to shut down the restaurants.

The respondents contended that they had a duty to protect the interests of the public. They submitted that a committee had been set up to inspect restaurants and prior notice was given to all concerned. Further, under Sec. 112A and 113 (2) of the Act, the officer has the power to pass the order.

The court considered the various provisions of the Act and concluded Health Officer has power do order closure of an establishment till the danger of out break has passed. On the facts, court concluded Health Officer had not applied his mind and such as order should not have been passed. The Court issued a writ of mandamus directing respondents to not to enforce the order.

Slaughter houses and their functioning to environmental safety standard.

Buffalo Traders Association v. Maneka Gandhi 66 (1997) Delhi Law Times 439 (SC)

Applications relate to Idgah slaughter House which had been ordered to stop functioning as it was a "hazardous or noxious industry" Idgah Slaughter house was the biggest slaughter house in Asia, wherein nearly 1200 to 1500 animals were slaughter every day. Which discharged untreated blood to the amount of 13,000 litres into the Municipal sewer. The slaughter house was also alleged to have unhygienic conditions for slaughter and sale and the animals brought into the slaughter house were inspected on bare eye for their health and standard condition.

The slaughter house was permitted to function provided it complied with certain conditions laid down by the Court. A certain limit was placed on the number of animals that could be slaughtered. Also buffaloes, cows, and bulls were prohibited from being slaughtered. The slaughter houses had to comply with certain environmental standards. MCD was also directed to stop illegal slaughtering and construct modern slaughter houses.

In this case the court gave certain important directions, which help in reducing the pollution in environment to a great extent.

The Court held that -

1) the slaughter house will be permitted to function on the following conditions:

i) Only goats and sheep numbering 200 per day shall be permitted to be slaughtered in the premises, no other animals shall be slaughtered.

ii) Buffaloes, cows, bulls shall not be permitted to be slaughtered as their slaughter generates more pollution.

iii) The slaughter house shall be kept environmentally clean.

2) the Central Pollution Control Board shall visit the slaughter house every 2 months, and file report to the court indicating the environmental states.

3) the animal market shall not be permitted to function near the slaughter house. Holding the animals market in the Gowded part of the city is environmentally hazardous and cannot be permitted.

4) The Deputy Commissioner of police of the area shall stop the holding o f the market in the vicinity of the slaughter house in an environmentally clean manner and take the meat back the similar way. No market should be permitted in the area.

5) The commissioner, Municipal Corporation, Delhi shall take necessary to stop illegal slaughtering in all parts of Delhi.

6) Further heavy pollution fine shall be imposed by the court on polluters indulging in illegal slaughtering even the MCD shall be liable to pollution fine if the slaughter house is not kept environmentally clean. The staff in charge of the slaughter house may personally be liable to pay the fine.

7) Municipal Corporation of Delhi shall take steps on war footing to construct the modern slaughter house on the alternative land already acquired by the corporation.

Mining limestones in ecological sensitive areas: Concerns of environmental groups

General Public of Saproon Valley v. State of H. P. AIR 1993 HP 52

The petitioners alleged by way of Public Interest Litigation that the mining of limestone in the Saproon Valley caused great damage to environment and ecological imbalance. A committee was constituted by the Court to look into the problem. The committee classified the mines into two categories and said that mining in the second category of mines should be stopped. The lessees pleaded that stoppage of mining was not called for irrespective of the recommendations of the expert committee.

The court can make out its own modalities for ascertaining the essential facts to make up its mind about the nature of directions which it should make. The Expert Committee considered the best way of ascertaining essential facts. It consists of responsible people and therefore the recommendations should be given effect to. The court also direct the continued supervision of mines of the first category as per recommendations of the committee.

The Court observed Arts. 48A, 51A (g) and Art. 226 of the Constitution of India and also constituted committee of experts. The court held that where a petition (P.I.L.) is filed alleging that there is a damage to environment, vegetation etc., strict proof about the fact is not necessary.

Further the Court held that since the proceedings under Art. 226 of the constitution are basically summary in character, the court makes out its own modalities for ascertaining the essential facts to make up its mind about the nature of directions which it should make.

The court held that in the present case, High Court appointment of an expert committee was considered to be the best way for ascertaining necessary facts. It was further held that committee consisted of responsible people who bona fides could neither be mpr has been assailed, therefore, the recommendations made by the Committee.

Further, the Court gave certain valuable directions. It was held that the committee would visit the area where category A: mines are located within a month to enquire whether the continuance of these mines have been met or not at the spot. In addition it will also enquire whether the pattern contemplated for the working of these mines in the mining plans is being adhered to or not.

Ammonia storage facility and safety standards.

Law Society of India v. Fertilizers & Chemicals Travencore Ltd., AIR 1994 Ker 308. Varghese Kalliath and K. J. Joseph, JJ.

The petition was a PIL. It has challenged the operation of a 10,000 tonne Ammonia storage tank by the first respondents as being dangerous. It was contended that the Tank regularly causes air pollution and is thus causing serious damage to the environment. If a leak was to develop in the plant, it could exterminate all living things in the Cochin area.

The first respondent if a public sector undertaking producing 4.24% of the entire fertilizer consumed in our country .Ammonia is used as a raw material in the production of a number of fertilizers. In its counter affidavit, the company explained the use and storage of ammonia in the Storage Tank. It identified the various safety measures, which were in place. All the required permission had been obtained for setting up the Tank.

The Court then considered the history of the Storage Plants, wood gasification plant, oil gasification plant and so on. Finally, in 1973 the Company had set up a capralactum plant. The new storage tank was required not only to provide ammonia to this plant but also to provide ammonia to the Cochin plant instead of importing ammonia. They also proposed to set up a 900 TDP Ammonia plant. Once it was established, their import of ammonia would be reduced and their use of the Storage Tank too. However, the government had taken unduly long to grant sanction, which was finally secured in May, 1993. The respondents expected the plant to be fully operational by July, 1998.

The Ministry of Environment, 5th respondent argued in favour of the TDP plant. Relocation of the storage tank would take 3 yrs and building the new plant 4 Y2 yrs. They suggested that the amount of ammonia stored should be reduced or stopped completely by increasing capacity of plant.

The Port Trust Authority, 2nd respondent, argued that on the request of the first respondent, to prepare a contingency plan, the then Chairman had set up a task force. The task force had reported that the Tank posed a grave danger, they could formulate no contingency plan, and public sentiment was against it and had recommended re siting of the Tank without further delay. A letter was also filed by the employees of the Port alleging that leak of Ammonia is making life difficult for them.

The report of the 3rd respondent submitted that the proximity of the Tank to the airport and defence cargo berth increases the risk of damage to the Tank to an unacceptable limit. During course of trial it was brought to light that a minor explosion had occurred on 6th June, 1989 near the tank.

The affidavit of the 4th respondent, the Kerala State Pollution Control Board submitted that sufficient precautions were not in place. A task force was set up to formulate a plan for comb acting any major leak. The task force expressed its inability to do so and concluded that in case of an accident, whole city would be affected. They suggested that any interim storage must be done on the factory premises itself.

The 6th respondent, the District Collector suggested that the only viable option was that the 900 TDP plant must be established with all haste and the Tank be decommissioned. The State of Kerala recommended shifting of the Tank. Other respondents contended that decommissioning the Tank will have multifarious consequences, such as a number of people losing their jobs, the fertilizer production falling short of demand, etc.

The question before the Court was two-fold. Firstly, consequences of an incident at the Tank and secondly the possibility of such an accident. To answer the first question, the Court considered the following points-

( 1) physical properties of ammonia

(2) toxic effects of ammonia

(3) possible sources of ammonia leaks and likely consequences -small leaks, major leaks

(4) hazards

(5) siting of the ammonia storage tanks

(6) construction of the foundation and its failure

The Court appointed 2 Commissioners, who are considered environmental experts by the international community, to investigate the vocational hazard and potential danger posed by the Tank. Mr Campbell, one of the experts, submitted detailed reports on all the various points and concluded that a plant for production of ammonia at Udyogmandal is the only solution to avoid catastrophic risk element involved in the continuation of the storage tank at Willingdon Island. The Court accepted this opinion as sound.

The Court also considered the opinion delivered by IIT, Madras on 17/6/1985 on the soundness of the foundation of the Tank but rejected it as it felt the report was tainted with indifference and slovenliness. The Court considered the development of environmental rights in this country. The Report of Neeri and the Findings of the Pollution Control Board were placed before the Court. It held that it could not conclusively determine whether the leak from the ammonia storage tank was causing air pollution in the surrounding area.

The Court then considered general principles in International Environmental law starting from the Stockholm Declaration to the various global summits which have been held. It also reviewed the various environmental disasters such as the Bhopal Gas Tragedy. It then considered the various Acts applicable to environmental preservation in India. These include the Factories Act, 1948, Indian Penal Code and Criminal Procedure, Travancore-Cochin Public Health Act, 1955, Panchayat Act, 1960, Municipalities Act and Corporation Act. Art. 48 A and 51 A of the Constitution., Environmental Protection Act, 1986, Public Liability Insurance Act, Finally, it concluded that the constitution of the Ammonia Storage Tank was in violation of Art. 21 of our Constitution. The Tank posed a devastating danger to the surrounding areas and the Court felt such a risk did not come within the risks a country must bear in the interests of industrial development. The Court ordered that the tank be decommissioned and that it be emptied within 3 months.

Tobacco Somking and Health hazards.

K. Ramakrishanan v. State of Kerala AIR 1999 Kerala

This is an original petition highlighting public health issue of the dangers of passing smoking and in which prayers were made to declare that smoking of tobacco in any public places is illegal, unconstitutional violative of Art. 21 of the constitution of India.

The High Court allowing the petition issued following directions:

i) directed the state of Kerala to promulgate and under Sec. 133 (a) Cr. P.. Prohibiting public smoke within one month.

ii) Tobacco smoking in public places falls with mischief of the penal provisions relating public manners.

iii) The State Government to enforce the penal provisions that the individuals practice the individual practice of smoking in public place is discouraged.

iv) The continued omissions and inaction of respondents to comply with the constitutional mandate to countenance smoking amounts to a negation constitutional guarantee of decent living as provided under Art. 21 of the constitution.

Right to use loudspeakers and the reasonable restrictions for abating sound pollution.

P. A. Jacob v. The Superintendent of Police, Kotta Yani AIR 1993 Ker. 1

Here, claiming a fundamental right to used a loud speaker at public meetings to voice his views, petitioner sought to restrain respondents from interfering with the use of a loud speaker by him.

The main issue for contention was whether the Constitution guarantees a right to use a sound amplifying device or whether use of such a device is part of the right to freedom of speech guaranteed under Art. 19 (1)(a).

The Court held that Operation of mechanical sound amplifying devices conflicts with quite enjoyment of men and park. But freedom of speech does not involve freedom to used sound amplifiers to drown out natural speech of others. Further, while the petitioner has a right to express his views, he has no right to force his message upon an audience declining to receive it. Freedom guaranteed is freedom of expression of ideas, not freedom of expression of ideas, not freedom of modes of expression. Thus, compulsory exposure of unwilling person to dangerous and disastrous levels of noise amounts to infringement of their right to life under Art. 21 of constitution of India.

Finally the court held that while petitioner has no fundamental right to use a loud speaker, he can avail of the amenity of using a loud speaker in reasonable manner. The out put from the loud speaker shall not exceed the range necessary to reach the audience, it exceeded police will be free to stop the use of loud speakers.