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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 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.
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.
Madhavi
v. Thilakan and others, 1989 Cri. L. I. 499. 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.
Ajeet
Mehta v. State of Rajasthan, 1990 Cri.L.I. 1596. 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.
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.
Nayan
Behari Das v. State of Orissa, AIR 1998
Orissa 39. 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.
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".
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.
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.
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.
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.
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.
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.
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.
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.
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 |