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CHAPTER-5 PRINCIPLES OF ENVIRONMENT PROTECTION AND

SUSTAINABLE DEVELOPMENT: JUDICIAL TRENDS IN INDIA

5.1. INTRODUCTION

Judiciary may be reported as the most sharp-eyed protector of democracy. It is one of

the three towers upon which the structure of the constitution is constructed.

Undoubtedly, major push towards environment preservation and balanced development

in India has started from the Indian judiciary. It will not be wrong to say that

environmental variances have created some striking case laws in India. Because,

Judiciary courageously and enthusiastically enforcing the law and filled the gap in the

field of environment and sustainable development . It facilitated legislators without

legislating Indian Judiciary has ever assumed the role of defender of the environment

and insurer of the fundamental right of life and sustainable development. It has been

played important role for advancing the concept of sustainable development. It is

relevant to quote here that the legislature has recently started talking about sustainable

development in some of the enactments. But, mainly the acclaim for making sustainable

development as fundamental principle of Indian legal system goes to judiciary. If we

look at the number of legislations related to environment in India, we would found that

there is no shortage of laws. No doubt; judicial approach concerning environment

protection has been discussed in various studies1. In the present chapter, the researcher

has highlighted the activism of Indian Judiciary in interpreting the cases related to

environmental pollution particularly with an emphasize to the concept of Sustainable

Development.

1 (i) Shashi Kant, Right to Water as Human Right, a Study into Public Trust Doctrine; Privatization

(Prof. S.K. Bhatnagar), Department of Law, Baba Saheb Bhimrao Ambedkar University, Lukhnow.

(ii) Vidya Bhaget Negi, Department of Law, Kuruksherta University, Kurukshetra.

(iii) Ms. Deepti Singh, inciple and its Application: An Evolutionary Stud Degree Granted by: National Law School of India University, Bangalore, 2007.

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5.2. ENVIRONMENTALLY SOUND ECONOMY IS AN IMPORTANT PART OF SUSTAINABLE GROWTH

In M.C. Mehta v. Union of India 2, Apex Court had given landmark decision laying

the foundation of Indian environmental jurisprudence holding that there was need for

engineering the interests.

Larger interests of the people lie in the environmentally sound economy and not in haphazard and unsystematic economic growth. The synthesis of environment and economic imperative popularly called sustainable development must become a reality and not just remain a slogan. Man has to tap natural resources for economic, scientific, social and industrial development. The larger interests of the nation in industrial growth necessitate such exploitation but economy must not be at the cost of ecology. Industry must not mean genocide but human good. There is need for striking a proper balance between development and protection of environment.

Apex Court opined that the need to evolve a new environmental jurisprudence in a

number of cases and asserted that more stress should be laid on prevention than on

prosecutions. Industrial licenses should be granted on a written undertaking that the industry will protect the environment by using improved devices for its protection. Our

Supreme Court has also mooted the idea of separate environmental courts for giving

speedy justice and emphasized that all local bodies should perform their duties honestly . Court further suggested , through out India

at once a year .

Further, in the case of BSES Limited v. Union of India3, Bombay High Court held that:

Environmental issues are relevant and deserve serious consideration. But the needs of the environment require to be balanced with the needs of developing countries.

5.3. DEVELOPMENT AND ECOLOGY MUST BE BALANCED

Justice Krishna Iyer and Justice Chinappa Reddy in Ratlam Municipality v.

Vardichand 4 remarked that:

2 AIR 1987 SC 965. 3 AIR 2001 Bom. 128 (DB). 4 AIR 1980 SC 1633.

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Industries cannot be allowed to run at the expense of public health. The dilemma between environment protection and developmental process has been removed with the theory of sustainable development.

In Goa Foundation and Another v. The Konkan Railway Corporation and Others 5, the court held that no development is possible without some adverse effect on the

ecology and environment but the projects of public utility cannot be abandoned and it is

necessary to adjust the interest of the people as well as the necessity to maintain the

environment. The balance is to be struck between the two interests and this existence must be left to the persons who are familiar with and specialized in the field .

People United for Better Living in Calcutta-Public v. State of W.B 6

court observed that :

In a developing country there shall have to be developments, but that development shall have to be in closest possible harmony with the environment as otherwise there would be development but no environment, which would result in total devastation, though, however, may not be felt in present but at future point of time, but then it would be too late in the day, however, to control and improve the environment; there should be proper balance between the protection of environment and development process. The society shall have to prosper, but not at the cost of environment and in the similar vein, the environment shall have to be protected but not at the cost of the development of the society and as such a balance has to be found out and administrative actions ought to proceed accordingly7.

5.4. WATER SECURITY AND SUSTAINABILITY

Sustainable Development and Water Security in India Suresh. P. Prabhu In India major industrial thrust to steer the economy is only a matter of

time. Industry needs water- fresh or recycled. It is estimated that 6.4 m ha of water will be needed by 2050 to sustain industrial activities in India. The pollution caused due to industrial effluents is a far more serious problem than the one due to domestic effluents because of their higher potential to damage the natural land water resource system. While access to drinking water in India has increased over the past decade, the

5 AIR 1992 Bom. 471 (DB). 6 AIR 1993 Cal 215, (1993) 1 Cal HN: (1993) 1 Cal LJ 105. 7 AIR 1993 Cal ,Para 2.

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tremendous adverse impact of unsafe water on health continues 8. For attaining water security and sustainability, the Indian Judiciary is doing well. The following decisions of Courts are evident of the said fact:

In M.C. Mehta v. Union of India9, wherein river Ganga flowing through Kanpur was being polluted by sewage and trade effluents of tanneries through 17 nallahs, making the water toxic and hazards for health. Therefore Supreme Court issued time-bound directions to the administration for stopping the sewage effluent and installations of treatment plants. In that case court maintains the relation between health and sustainable development.

5.4.1. Ganga Pollution by Tanneries Case10 In this case, Supreme Court held that:

to set up primary treatment plant is necessary for every industry. The

which fails to set up a primary treatment plant be not permitted to continue to be in existence for the adverse effect on the public at large which is likely to ensure by the discharging of the trade effluents from the tanneries to the river Ganga would be immense and it will outweigh any inconvenience that may be caused to the management and the labour employed by it on account of its closure11.

5.4.2. Management of Water Resources and NEERI Report In the case of M.C. Mehta v. Union of India and others 12, the National Environmental Engineering Research Institute (NEERI) has opined in its report filed before the Supreme Court that:

management of water resources in a manner that achieves the goal of sustainable development warrants legal intervention, based on the principle of Intergenerational equity, the Precautionary Principle, Conservation of natural resources and environmental protection. To protect ground water, the Supreme Court has issued orders invoking the Precautionary Principle. The Ground Water Authority was constituted as a result of this judgment .

8 Suresh. P. Prabhu, , in Sustainability

Tomorrow, January-March, 2007, p.11. 9 (1987) 4 SCC 463. 10 M.C. Mehta v. Union of India, AIR 1988 SC 1037. 11 M.C. Mehta v. Union of India, AIR 1988 SC 1037, Para 19. 12 (1997) 11 SCC 312.

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5.4.3. A.P. Pollution Control Board II v. e 13 the present case revolved

around the untiring, and at times devious efforts made by the respondent to establish its

oil processing plant within a 10 km radius of major water reservoirs in Andhra Pradesh,

the Osman Nagar and Himayat Nagar, which cater to the needs of the people of

Hyderabad and Secunderabad. On 25-7-1997 the exemption order was stayed as the

result of a public interest petition filed against it. Apex Court, keeping in view the facts

and circumstances of the case, once again Court adopted the positive approach in

context of sustainable development and the court gave precedence to the human need

for drinking water over and above the possible economic advantage that could be

generated by the industry for the State. Court further directed that State and the Board

shall not permit any polluting industries within 10 km radius of the reservoirs .

5.4.4. State is under Obligation to Preserve Underground Water Again, the issues of deep subsoil and water came up in the case of M.P. Rambabu v.

Divisional Forest Officer14, where the AP High Court deals with the problem of salinity

of underground water. The salinity was feared to have been caused by digging bore

wells and excessive use of agricultural lands for aquaculture. The court said that deep

underground soil and water belong to the State in the sense that the doctrine of public

trust extends to them. Manifestly, their use is subject to the State regulation even in

absence of specific law. The holder has the right of user for a purpose for which the

superjacent land is held. If, he uses for a different purpose and causes pollution to

underground water or soil, the State can interfere and prevent contamination .

5.4.5. Discharge of Toxic Substances in Water Bodies is Hazardous Moreover in the case of Vijay Singh Punia v. Rajasthan State Board of Pollution

Control of Water Pollution15 certain factories carrying on the business of dyeing and

printing cloth were discharging toxic substances in canals from which water was being

used for agriculture and drinking. The Rajasthan High Court, while dealing with the

issue, directed industries and the State and its agencies to set up a common effluent

13 (2001) 2 SCC 62, P.87. 14 AIR 2002 AP 256. 15 AIR 2003 Raj. 28.

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treatment plant so that effluents were not discharged into the said water body. The

decision of the court was highly inspired by sustainable development principles .

5.4.6. Noyyal River Pollution Vis-a-Vis Industrial Activities In the case of Tirupur Dyeing Factory Owners Association v. Noyyal River Ayacutdars

Protection Association and Others16, Apex Court held that development of industries,

irrigation resources and power projects are necessary to improve employment

opportunities and generation of revenue but balance has to maintained between

development and preservation of natural resources so as to ensure that environment is

not damaged irreparably, which may in turn cause irreparable damage to economic

interests. Tirupur in State of Tamil Nadu is an industrial hub providing employment to 5

lakh persons. A large number of industries had indulged in dyeing and bleaching works

at Tirupur area. Undoubtedly, there had been unabated pollution of Noyyal River by

discharging the industrial effluents into the river . The Supreme Court held that:

es to meet out the expenses of reversing the ecology. They are held bound to meet the expenses of removing the sludge of river and also for cleaning the dam.

read along with the doctrine of sustainable development .

5.5. AIR POLLUTION AND SUSTAINABLE DEVELOPMENT With the initiation of the human race, the problem of air pollution steps together.

Population growth, western idea of development, unsustainable developmental

processes, and record breaking consumerism is some reasons for the pollution of air in

the present era. For curbing the grave problem of air pollution and achieving sustainable

development concept, Indian judiciary has playing a very important role.

5.5.1. Prohibition of the Operation of 246 Brick Kilns in Delhi

M.C. Mehta v. Union of India and Others 17,

the Supreme Court prohibited the operation of 246 brick kilns in Delhi with the directions that these brick kilns may relocate themselves to any other industrial estate in the National Capital Region (NCR) with effect

16 (2009) 9 SCC 737. 17 (1998) 9 SCC 149.

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from 30th June 1997. The National Capital Region Board shall render all assistance to the brick kilns in the process of relocation. The court further stated that the closure order with effect from 30-06-1997 shall be unconditional. Even if the relocation of brick kilns is not complete they shall stop functioning in Delhi with effect from 30-06-1997 .

5.5.2. Re Delhi Transport Department Case18

While dealing with serious problem of air pollution in Delhi the Supreme Court

categorically stated that:

development has to be followed by State Government in controlling pollution. The State Government is under a constitutional obligation to control pollution and if necessary by anticipating the causes of pollution and curbing the same. The court held that in process of considering various measures to control the pollution in the city of Delhi, there is likelihood of some restrictions being imposed on the plying on taxis, three-wheelers and other vehicles in the city of Delhi. The court, therefore direct the Commissioner-cum-Secretary (Transport) NCT, Delhi to issue notices to the various operators through their respective unions to be present in this Court, if they so wish to assist this court in the process of controlling the pollution in the city of Delhi.

5.5.3. Stone Crushing Business and Air Pollution In Obayya Pujari v. Member Secretary KSPCB, Bangalore19, in this writ petition, the

petitioners had prayed for quashing of the consent by which the Karnataka State

Pollution Control Board was alleged to have conducted the proceedings culminating in

the issuance of the consent order for carrying on the stone crushing operation by the

respondent in the Mantradi village Karkala Taluk. The petitioners who are agriculturists

have alleged that with the carrying on of the proposed stone crushing business their

crops would be adversely affected and that their health and the health of other in the

area would be exposed to diseases on account of the pollution caused by stone crushers.

They apprehend that with the commissioning of the stone crushing unit, the water and

air in the area would be polluted. Therefore, Apex Court keeping in view the problem of

air pollution and concept of sustainable development regulate the business of stone

18 (1998) 9 SCC 250. 19 AIR 1999 Karnataka 157.

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crushing and directed to the State Government of Karnataka for the closure of all stone

crushers which did not fall in safer zones . Court further held that:

unplanned stone crushing activities in state causing air pollution and affecting the health of human beings, health and vegetation. Court directed State Government inter alia to immediately formulate a policy regulating carrying on of stone crushing business. State also directed to identify safer zones and shift existing crushers to safer zone within one year and existing crushers which do not fall in safer zones shall close after one year .

5.5.4. Swap over of Diesel Vehicles to CNG Vehicles

M.C. Mehta v. Union of India and Others 20, ourt fixed a deadline for city of

Delhi regarding switching over of diesel vehicles to CNG vehicles within specified time limit . Further, Court held that:

vehicular pollution creates smoke, noise etc. Court further observed that Articles 39(e), 47 and 48-A by themselves and collectively cast a duty on the State to secure the health of the people, improve public health and protect and improve the environment. It was by reason of the efforts on the part of the enforcement agencies, notwithstanding adequate laws being in place, that this court has been concerned with the state of air pollution in the capital of the country. Lack of concern or effort on the part of various governmental agencies had resulted in spiraling pollution levels. The quality of air was steadily decreasing and no effective steps were being taken by the administration in this behalf.

Union and all governmental authorities to prepare

scheme containing time schedule for supply of CNG to other polluted cities and furnish

same to court by 9-5-2002 for its consideration .

5.6. FORESTRY PRESERVATION AND SUSTAINABLE DEVELOPMENT

The Supreme Court in the context of deforestation has given many decisions like

Ambika Quarry Works v. State of Gujarat21, in that case court trying to strike a balance

between the need of exploitation of the mineral resources lying hidden in the forest and

the preservation of the ecological balance and to arrest the growing environmental

deterioration . It was observed that the rejection of prayer for the renewal of lease was 20 AIR 2002 SC 1696. 21 AIR 1987 SC 1037.

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in conformity of the purposes of the Act of preventing deforestation and ecological

imbalances resulting from deforestation. In that case the concept of sustainable

development was given effect to .

In State of Himachal Pradesh v. Ganesh Wood Products 22, the Apex Court held that

the obligation of the sustainable development requires that a proper assessment

should be made of the forest wealth and the establishments of the industries based on

forest produce should not only be restricted accordingly but their working should also

be monitored closely to ensure that the required balance is not disturbed. So far as

forest based industries are concerned, there is no absolute and unrestricted right to

establish industries. There shall have to be both development and proper environment

and ecological balance has to be sound 23.

5.6.1. Nature Lovers Movement Case24

Court held that, each occupier/encroacher of forest land who pays for regularization

and consequent issue of title deeds in his favour shall pay a reasonable amount of

compensation to the State for the injury caused by him to the general public. In the

same way, Apex Court ordered the industrialists to compensate the framers about Rs.

28.34 lakhs, because loss suffered by farmers due to pollution of subsoil surface water

resulting from discharging of effluents by pesticides industries 25.

Moreover in Rattan Jain case 26 Court held that

felling of trees without prior approval though for some time there was neither any clearance nor any permission or any order of Supreme Court with SECL (South Eastern Coalfield Limited) to work in forest area- yet SECL was fined for same. Apathy showed on part of State Government is taking any action. Merely because SECL is a government company it would not mean that it has licence to felling of trees not being an ordinary damage, payment of fine is too little price for said damage. Condition for implanting 10 trees imposed for every tree felled by SECL and to be felled in the future .

22 1995 (3) SCC 363. 23 Madhu Distilleries Pvt. Ltd. v. M.P. Produshan Niwaran Mandal, AIR 1995 MP 57. 24 Nature Lovers Movement v. State of Kerala, AIR 2000 Ker. 131 ILR 2000 (1) Ker. 677. 25 Indian Council for Enviro-Legal Action v. Union of India, (2007) 15 SCC 633. 26

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5.7. WILDLIFE IS HERITAGE AND A IMPORTANT COMPONENT OF

SUSTAINABLE DEVELOPMENT

G.R. Simon and Others etc. v. Union of India Others 27, the Delhi High Court that:

wild life forms part of our cultural heritage in the same manner as other archeological monuments such as painting, literature and each and every animal plays a role in maintaining ecological balance and therefore, the contention (of the petitioner) that certain animals are detrimental to human life is misconceived. Taking the case of even jackals, which are referred to by the petitioners as animals of no utility, these are natural scavengers who feed on offal and dead animals, thereby keeping the environment clean. Snakes which have been described by some petitioners as harmful and dangerous to human life feed on rats. Snakes are the natural killers of the rats which cause loss of nearly 33 million tones of stored cereals, apart from dreaded diseases such as plague. The above would show that even the most maligned animals which appear apparently to be of no utility, have a role to play in retaining ecological balance.

Court further stated that, , by giving judicial recognition to the principle of intergenerational equity

as referred in the international context.

The Supreme Court in the case of T.N. Godavarman Thirumulpad v. Union of India and Others28 had again shown the faith on the Principles of Sustainable Development. In this case a company made a proposal for setting up an alumina refinery in the area of Lanligarh Tehsil of Kalahandi District. According to CEC, Niyamgiri hills would be vitally affected if mining is allowed. The project would also destroy flora and fauna of the entire region and it would result in soil erosion. On the other hand, picture of object poverty in which the local people (including tribal people) are living in the area concerned. There is no proper housing. There are no hospitals, there are no schools and people are living in poor conditions . After analyzing the both aspects, Supreme Court adopted the approach of Sustainable development. The court is not against the project, but it could not take risk of placing an important national asset into hands of applicant company. It is only safeguard by which we are able to protect nature and sub serve development .

27 AIR 1997 Del 301. 35 (2008) 2 SCC 222.

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5.8. SUSTAINABLE DEVELOPMENT AND INDUSTRIALIZATION

No doubt industry is the axis to gear up the economies of modern societies and it is an

indispensable motor of growth. It is also the main instrument to change that affects the

environmental resources base of development both positively and negatively. On the

one hand, its rapid growth of production in all the fields is helpful to the needs of the

people and on the other; it has compelled man to live in inhuman, unhygienic and

degraded environment29. Courts in India have adopted an approach of sustainable

industrialization.

5.8.1. Badhkal and Suraj Kund Tourists Resorts Case

In the case of M.C. Mehta v. Union of India 30, stone crushing operations around

Badhkal and Suraj Kund Tourists Resorts led to atmospheric pollution and ecological

imbalance. Therefore, Court held that closure of operations within the radius of tourist

resorts and environmental action plan for the vicinity of these areas .

5.8.2. Freedom of Trade or Business vis-à-vis Ecological Preservation:

In Basudev Yadav v. State of Bihar31, the Patna High Court struck a balance and

maintained that: for protection of the environment, the fundamental right of trade must

be read together with provisions in Articles 14, 21, 48 A and 51A(g) of the

Constitution . Court further held that there is clear nexus between activities inside

forest and running of Saw Mill outside forest as raw material i.e. timber for running

saw mill comes from forest and that is why while putting a blanket ban on the non-forest

activity, indeed all on-going activity inside forest he Supreme Court also gave

further directions for regulating the number of saw mills, veneer and plywood mills,

depending on the extent of forest which could sustain saw mills . It is clear that if saw

mills or veneer and plywood mills are allowed mushroom growth it will inevitably

encourage, may, necessitate illicit cutting and felling of trees in the forest . Thus, the

object of preservation of forest and environment cannot be achieved without regulating

the number of saw mills. Therefore, Supreme Court directed the State Government to 29 Dr. V. Manickavasagam, Environmental Protection: Some Legal Aspects Chartered Secretary-

The Journal of Corporate Professionals, Vol. XXVIII No. 1, January 1998, p. 391. 30 (1996) 8 SCC 462. 31 AIR 2002 Pat. 64.

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capacity of the forest qua the saw mills, veneer and plywood mills etc. and further,

and their optimum distance from the forest 32.

5.8.3. Acquisition and Development of Land for Industrial Purposes

Recently, in the case of M/s. Shiv Guru Stone Works and Another v. State of

Jharkhand and Others 33, the order dated 14-7-2012, passed by the Assistant Mining

Officer, Giridih regarding refusal to renewal of mining lease on the ground of non-

obtaining environment clearance. According to the petitioner, their applications for

renewal of mining lease have been cancelled by the impugned orders interalia on the

ground that the area in question fall within 400 meters from the reserved forest area; the

Divisional Forest Officer, Giridih has reported against such renewal vide letter dated

11-6-2012, on the said ground and environmental clearance for obtaining such renewal

of lease, has not been obtained. In these circumstances, in the present facts of the case,

the writ petitioners are required to obtain the mandatory environmental clearance from

the concerned authority, which has been constituted by the Central Government and

has been made functional by the State Government by the aforesaid public notice.

Therefore, without interfering with the impugned order, the writ petitioners are allowed

to approach the State Level Environment Impact Assessment Authority (SEIAA) for

seeking grant of environmental clearance for the area in respect of which they are

seeking renewal of mining lease 34.

5.9. CONSTRUCTION AND SUSTAINABLE DEVELOPMENT

The confederations of International Contractors Associations (CICA) defines

construction industries as contractors and the construction sectors as all construction

related activities/professions, including architects, engineers, material producers and

facility managers. In this background, sustainable construction is understood as a

holistic, multi-disciplinary approach of construction which provides developments that

32 AIR 2002 Pat. at Para 7. 33 AIR 2014 Jharkhand 28, Para 7. 34 AIR 2014 Jharkhand, Para 4.

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are efficient and affordable, socially acceptable and less damaging to the environment35.

So far as the role of Indian Judiciary is concerned, it has given many decisions in this

context

5.9.1. Dam Construction on Narmada River

In the case of Narmada Bachao Andolan v. Union of India ,36 once agin Court

of environment. It also declared that every aspect of development should be based upon

Court further observed that37:

Environment concern has not only to be the area which is going to be submerged and its surrounding area. The impact on environment should be seen in relation to the project as a whole. While an area of land will

improvement in the environment of the areas where the canal waters will reach .

Obviously, the majority probed how the project struck a balance between development

needs and environmental values. They found the project had built-in safeguards and

satisfied the goal of sustainable development.

5.9.2. Tehri Dam Case

Similarly, in N.D. Jayal v. Union of India38, petition under Article 32 of the constitution

was filed connected to the safety and environmental aspects of the Tehri Dam. The

court emphasised that the balance between environmental protection and

developmental activities could only be maintained by strictly following the principle of

sustainable development. This is a development strategy that caters to the needs of the

present without negotiating the ability of upcoming generations to satisfy their needs.

Strict observance of sustainable development means a path that ensures development while protecting the environment, a path that works for all people and for all

generations . The court further emphasized on the symbiotic association linking right to environment and right to development and held that: 35 Shashank Vaidya and S.K. Singh, Sustainability Tomorrow, April-

June, 2007, p. 21. 36 2000 (10) SCC 664; AIR 2000 SC 3751 at 3787, 3804. 37 AIR 2000 SC 3828. 38 (2004) 9 SCC 362.

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The adherence to sustainable development is sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. The right to environment is a fundamental right. On the other hand, right to development is also one. Here right to sustainable development cannot be singled out. Therefore, the concept of sustainable development is to be treated as an integral part of life under Article 2139. The weighty concepts like intergenerational equity, public trust doctrine and precautionary principle which have been declared as inseparable ingredients of our environmental jurisprudence could only be nurtured by ensuring sustainable development .

In the year of 2001, the Apex Court in Goa v. Diksha Holding Pvt. Ltd. 40 affirmed

that nature will not tolerate such degree of its destruction and such development will

have its toll definitely, though it may not be felt in present .

5.9.3. Ring Road Project Recently in Jayabheri Properties Private Limited and Others v. State of Andhra

Pradesh and Others 41, petitioners challenged the acquisition of land comprised in

survey no. 1176, 189, 190, 191, 197, 198, 199, 200 and 202 of Narsingi village and

survey Nos. 292, 293 and 294 of the Poppalguda village of Rajendranagar Mandal,

Ranga Reddy district for the outer ring road project for the twin cities of Hyderabad

and Secunderabad Project provides an inner and intermediate ring road and in outer

ring road as part of the main circulation system for traffic . After hearing the

arguments, court held that:

while constructing the portion of the road affecting the plots in question, maximum are has to be taken by the authorities concerned to preserve as far as possible the water bodies over which the road is to be constructed. This is another sustainable development inspired decision of the Apex Court .

5.10. SUSTAINABLE DEVELOPMENT AND CONSTRUCTION IN COASTAL REGULATION ZONES

In MVPSW. Association v. Visakhapatnam UD Authority42, the issue was that permission to establish an amusement park at the beach line would be contrary to the

39 (2004) 9 SCC at 382. 40 (2001) 2 SCC 97. 41 (2010) 5 SCC 590. 42 AIR 2002 AP 195.

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specific prohibition laid down for construction in CRZ III (Coastal Regulation Zone) for development of beach resorts and hotels and thus would violate coastal zone regulations and Environment (Protection) Act, 1986. According to the conditions laid down in the permit, the licensee shall not excavate any land or carry on any activities prohibited in CRZ Notification. The first respondent had taken all precautionary measures for protecting and safeguarding the sensitive area in question. No activity that might lead to unscientific or unsustainable or ecological destruction was allowed43. No wonder that in the face of all these safeguards the court did not find any reason to interfere.

In the case of Citizen, Consumer and Civic Action Group v. Union of India 44, the

Madras High Court affirmed that both the development and environment shall co-exist

and go hand-in-hand. The court emphasizes that if the construction of multi-stored

building is 500 meters away from the HTL from CRZ and is on the landward side of the

road, there is no reason why it should be stopped . In this connection the Madras High

Court emphasized that here can be no dispute that the society has to prosper, but it

shall not be at the expense of environment. In the like vein, the environment shall have

to be protected, but not at the cost of the development of the society, both the

development and environment shall co-exist and go hand-in-hand .

In the case of M. Nizamudeen v. Chemplast Sanmar Limited and Others45,

Supreme Court held that Coastal Zone Management Plan prepared by State Coastal Management Authority and duly approved by MoEF is the relevant plan for identification and classification of CRZ areas. The court further held that 1996 plan for the purposes of demarcation and classification of CRZ area in the State of Tamil Nadu treated as final and conclusive. Moreover, Uppanar River and its banks where the pipelines were laid by Chemplast pass do not fall under CRZ III area. No environment clearance needed for such pipelines. No infirmity in permission granted by MoEF or Executive Engineer . The Court further observed that project concerned had been established by huge investment of appox. Rs. 600 crores, commissioned after obtaining necessary approvals, therefore, interference was justified neither in interest of justice nor in Public Interest .

43 AIR 2002 AP at 200. 44 AIR 2002 Mad. 299. 45 (2010) 4 SCC 240.

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5.11. SUSTAINABLE DEVELOPMENT AND TOURISM In his book, Tourism-An Evolutionary Perspective , Butler insists that: tourism

which is developed and maintained in an area in such a manner and at such a scale that

it remains viable over an indefinite period and does not degrade or alter the

environment in which it exists to such a degree that it prohibits the successful

development and well-being of other activities and processes 46.

In the case of Sachidanand Pandey v. State of West Bengal47, Indian judiciary

permitted the construction of a hotel near land belonging to Calcutta Zoological

Garden, stating that tourism was important to the economic progress of the country,

thereby underlying the constant controversy between development and environment .

Court further held that tourism supplies joy and happiness to the visitors of tourist

spots. It also helps generation of revenue to the public and private agencies engaged in

the business. It augments the resources of the State .

Further, in the case of E.I.H Limited v. State of Rajasthan48 the dispute was whether a

hotel could be allowed to be constructed in a no-construction zone near Udaipur Lake.

Taking a reasonable and balanced view of the entire situation the court justified the

construction and adhered that:49

It is necessary to accommodate all the essential components for a healthy and developing society. We cannot retract our steps from industrialization to simplistic nature. Proper planning with a will to improving the environment is the basic need to control pollution. On the world map, Udaipur is one of the choicest tourist destinations. For the development of the tourism industry, Udaipur needs some hotels providing accommodation of international standard to foreign and local guests, but not at the cost of polluting the lake .

Moreover, in the case of Forest Friendly Camps Pvt. Ltd. v. State of Rajasthan50,

The Rajasthan High Court called for a balance between development and ecology when it approved the power of forest department to control the entry of tourists to a wild life sanctuary. Wild life has to be protected,

46 R. Butler, Tourism-An Evolutionary Perspective , 1993, p.29. 47 (1987) 2 SCC 295: AIR 1987 SC 1109. 48 AIR 2001 Raj. 236. 49 AIR 2001 Raj at 241. 50 AIR 2002 Raj. 214.

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and at the same time, tourism has to be promoted; tourists should be given facilities of watching and enjoying wildlife .

Court further pleaded that:

With the opening of global trade, earning of foreign exchange is an important consideration for the development of the country. The traditional concept that the development and ecology are opposed to each other is no longer acceptable. Sustainable Development has to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting eco-systems. Sustainable Development as a balancing concept between the ecology and development has been accepted as a part of the customary international law. The society has to be prosper but of course not at the cost of environment an in the similar way the environment has to be protected but not at the cost of development of the society. There shall have to be both- development and proper environment and, as such, balance has to be found out and administrative action ought to proceed in accordance therewith .

5.12. BLINDLY REJECTION OF DEVELOPMENTAL PROJECTS IS NOT

VIABLE

In the case of Centre for DNA Fingerprinting and Diagnostic v. A.P. Pollution Control

Board51,

on the name of environment. If any development project is not contrary to environment

and according to the directions of appropriate authorities, then court had no objection at

all. In this case the petitioner, a Central Government autonomous body under the

Ministry of Science and Technology, applied to the State of Andhra Pradesh for

allotting land at Hyderabad for setting up a research laboratory for DNA Fingerprinting

and Diagnostics (CDFD). Sanction was approved and subsequently construction of

laboratory was started. Meanwhile a daily published that CDFD laboratory at the site

would endanger the two streams, viz., Gandipet and Himayatsagar that quench the thirst

of about 50 lakhs people of the twin cities, therefore this project is against the

sustainable development principles. It was also highlighted that necessary permission

was not taken from the AP Pollution Control Board; it issued directions to stop all

construction/development activities with immediate effect.

51 (2005) 3 ALT 779.

210

However, the petitioner filed an application praying for the requisite permission of the

board and contended that being a molecular biological laboratory, only a very small

quantity of routine chemicals would be used and that solid waste would be collected and

disposed by the Bio Medicare, a specialized agency. The petitioner also filed a rapid

Environmental Impact Assessment (EIA) report prepared by the Centre for

Environment Institute of Post-Graduate Studies and Research, J.N.T.U., Hyderabad.

The board, however, refused to give the requisite permission, and the appellate 52. Finally, the petitioner approached the Court.

The High Court relying upon the decisions in A.P. Pollution Control Board v. Prof.

M.V. Naidu 53, observed that:

Technical Committee of the Board, which is empowered to make such inquiry as may be deemed fit in respect of such application, failed to take all aspects into consideration and went merely by the first report submitted to it. If one goes to the NEERI (National Environmental and Engineering Research Institute), one would be led to assume that the decision of the primary authority was not in consonance with sustainable development principles. The court accordingly allowed the petition; set aside the two orders impugned in the petition and directed the board to consider afresh the application of the petitioner 54.

5.13. USE OF PESTICIDES AND INSECTICIDES AND SUSTAINABLE

DEVELOPMENT

In Dr. Ashok v. Union of India and others 55, the Court observed that:

, besides food, air and water, have always been a part of -system has becomes

imbalanced by uncontrolled use, abuse and misuse of natural resources and manufacture and use of hazardous products and chemicals resulting in endangering the very existence of human race. The court held that no doubt pesticides help to develop food products, but on the other side its effects human health. Therefore, in most of the developed countries the use of hard pesticides on agricultural crops has been either banned or restricted and other pest control programmes are adopted in order to maintain the concept of sustainable development. The Court further

52 (2005) 3 ALT 779. 53 (1999) 2 SCC 718. 54 (1999) 2 SCC 718. 55 (1997) 5 SCC 10.

211

emphasized that sufficient steps have been taken to either ban or to allow restrictive use of these insecticides but yet there is no coordinated effort by different ministries of the Government of India involved. Therefore, the court directed that committee of four senior officers from four different ministries involved (viz. Ministry of Health and Family Welfare, Ministry of Environment and Forests, Ministry of Agriculture and Ministry of Industry and Chemicals) should be constituted and these committees should have deliberations at least once in three months and take suitable measures in future in respect of any other insecticides and chemicals which is found to be hazardous for health. Such a committee should be constituted by the cabinet secretary within two months from the date of the order and said committee may take assistance of such technical experts as they think appropriate .

5.14. ESTABLISHMENTS OF HEALTH CARE INSTITUTIONS AND

SUSTAINABLE DEVELOPMENT

In Vijayanagar Educational Trust v. Karnataka State Pollution Control Board,

Bangalore56, the Karnataka High Court observed that:

hospital being an institution which is essential to improve the quality of human life, its establishment falls within the concept of sustainable development. It was further observed that as the area has not been declared as a sensitive area, therefore, it is not possible to ascertain any potential non-negligible danger to environment by restoring to the principle. Ultimately, it was observed that the Board should make a detailed study and it was only thereafter a decision should be ratified at .

5.15. PUBLIC PARKS AND SUSTAINABLE DEVELOPMENT

In Partha Pratin Ghosh v. State of West Bengal57, A petition in the nature of PIL has

been filed praying inter alia for commanding the respondents Semarpore Municipality

to forthwith restrain themselves from constructing any further the Supermarket at

Gandhi Maidan, Semarpore and Hooghly. The main grievance of petitioners is that a

public park is sought to be encroached upon and multi-stroyed building is being

constructed. Interestingly, the municipality had not formulated a policy for

rehabilitation nor did they approve transfer of land under the West Bengal municipal

legislation. The co 56 AIR 2002 Kant. 123. 57 AIR 2000 Cal. 84.

212

from ordering demolition of the structure. The court affirmed that Ecological balance

and greenery are must but the need of development of the area cannot be brushed aside.

In the co

cases 58.

5.16. PERMANENT ASSETS OF MANKIND ARE NOT INTENDED TO

EXHAUST IN ONE GENERATION (PRINCIPLE OF INTER-

GENERATIONAL EQUALITY)

The Supreme Court of India in Bombay Dyeing and Manufacturing Co. Ltd. v. Bombay

Environmental Action Group59 the Court held that:

rivers, forests, mineral and other natural resources are important constitutes of natural wealth and these are not be frittered away or exhausted by one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resource of the nation in the best possible way. It is pious obligation extending generation to generation for survival of human race on earth .

Keeping ecological balance unaffected is a task not only of government but also of

every citizen60. Court had shown its willingness to protect the right of

those who were yet to be born 61.

The most remarkable contribution of the judiciary can be seen in the case of A. P.

Pollution Control Board II v. Prof. M.V. Naydu 62 the Apex Court had every reason to

-

present case, the board had not examined whether the risk evolved could be said as

non-

-

such an analysis, nor did it make reference to any pollutants that might be emitted by

hospital, which would cause non-negligible risk. In considering sustainable

development Justice Pasayat quoted as: 58 AIR 2000 Cal. 87. 59 AIR 2006 SC 1489 at 1492. 60 Rural Litigation and Entitlement Kendra v. State of U.P. AIR 1987 SC 359. 61 A.P. Pollution Control Board v. M.V. Naydu (1999) 2 SCC 718. 62 (2001) 2 SCC 62.

213

Sustainable development is essentially a policy and strategy for continued economic and social development without detriment to the environment and natural resources on the quality of which continued activity and further development depend. Therefore, while thinking of the developmental measures the need of the present and the ability of the future to meet its own needs requirements have to be kept in view. While thinking of the present, the future should not be forgotten .

Again, Supreme Court in case of T.N. Godavaraman v. Union of India 63 has shown

its faith in the theory of Inter-generational equality and attempted to make the people

aware about their pious duty towards the coming generations by and held that:

The way in which a society cares or does not care for its dirt-its land- reflects the degree to which it cares or does not care for its own long term future .

5.17. DOCTRINE POLLUTER PAYS Supreme Court on several occasions in recent times has taken to task the polluters. To

ed here with

reference to some recent decisions.

In the case of F.B. Taraporewala and Others v. Bayer India Ltd. and Others64 , the

Supreme Court of India held that:

Industrial Growth- Yes: but by exposing a large segment of society to the risk of lives, No. This apprehension is not imaginary. Bhopal disaster brought to the knowledge of all what a tragedy can be caused by chemical industries. In the wake of what happened there more than a decade ago, industrialists engaged in producing chemicals started thinking of taking precautionary and protective measures to see that if worst were to befall, how could their financial liability be taken care of.

r observed that the concept of sustainable development does call upon one and all to see to the maintenance of balance between development and its sustenance in future .

Again in judgment dated 28.8.1996, in the case of Vellore Citizens Welfare Forum v. Union of India and Others65, Court directed the closure of 162 tanneries, which were

63 (2006) 1 SCC 42. 64 (1996) 5 CLJ 60 (SC). 65 (1996) 3 SCC 212.

214

polluting the area and had not complied with the directions of the Court to set up the pollution control devices within the time prescribed .

Further in the case of Indian Council for Enviro-Legal Action v. Union of India 66 In

this case, the industrial units were located in Bichri Village in Udaipur district of

Rajasthan and were producing certain chemicals like oleum and hydrochloric acid etc.

They were producing certain chemicals like oleum and hydrochloric acid etc. they were discharging highly toxic effluents resulting in pollution of ground water and making it

unfit for drinking by human beings, cattle and for irrigating the land . The affected

soil became unfit for cultivation

Court has observed that:

We are of the opinion that any principle evolved in this behalf should be simple, practical and suited to the conditions obtaining on this country. Once the activity carried on is hazardous or inherently dangerous, the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. The rule is premised upon the very nature of the activity carried on. Consequently the polluting industries are absolutely liable to compensate for the harm caused by them to the villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge an d other pollutants lying in the affected areas .

Thus, according to J. Kuldip Singh, the polluter pays principle means that the absolute

liability for harm to the environment extends not only to compensate the victim of the pollution but also the cost of restoring environmental degradation. Remediation of the

damaged environment is the part of the process of sustainable development and as such

polluter is liable to pay the cost of reversing the damaged ecology 67.

5.17.1. Corporate Disasters and Sustainable Development: (Justice for Bhopal: Too Little Too late)

It cannot be refused that criminal activities by the corporations not only affects the

humanity, but also nature resources including water, soil, plants and animals, thus

66 (1996) 5 SCC 281. 67 (1996) 5 SCC p. 2721.

215

violating the human rights and constitutional rights of safe environment. In case of

Union Carbide Corporation v. Union of India 68 Toxic gas leak from Union

Carbide pesticide factory built in 1970 in Bhopal, on the mid-night of 2nd/3rd December

1984, played havoc on the people inhabiting around the site by killing thousands,

maiming lakhs and leaving numerous with various diseases and deformity including

blindness, breathing problems, cancer, brain damage and birth defects. It took the CBI

three long years to file a charge sheet that many believed was weak . Finally, Supreme

Court held that:

in criminal law there is no concept of vicarious liability and the judiciary has to work under the guidance of the law. This justification shows the inadequacy of the prevailing laws in India to deal with such types of crimes against humanity and the callous apathy towards the masses .

Tragedy and the concept of corporate social responsibility is backed by polluter pays

principle69.

5.18. PUBLIC TRUST DOCTRINE

In his article,

this doctrine implies the notion that the public has a right to expect certain lands areas to retain their natural characteristics and is finding its way into the law of the land. This doctrine is inter-related with the doctrine of inter-generational justice. It looks beyond the need of the present generation and also implies that certain resources are invested with a special nature 70.

In Gobind Singh v. Shanti Sarup71, Supreme Court in this case ordered to close a

bakery causing pollution injurious to the health and physical comfort of the people

living or working in the proximity . It was found that the upper horizontal portion of

the chimney constructed by the appellant juts out into the G.T. Road to the extent of

68 AIR 1990 SC 273; (1991) 4 SCC 484. 69 Legal News and Views, Volume 24- No. 7, July 2010, p. 1. 70 Tarun Arora, A Study of Judicial Behavior Continuing Social Engineering in India with Special

Nyaya Deep, Vol. III, Issue 4, October, 2007, p. 120. 71 AIR 1979 SC 143.

216

about six feet. The construction of the chimney was held as encroachment upon the

public place and it was virtually playing with the health of the people. A strong wind

could carry the flames over a distance and cause a conflagration .

Further, the Apex Court in M.C. Mehta v. Kamal Nath 72acknowledged applicability

of public trust doctrine and held that:

certain common properties such as rivers, seashore, forests and the air were held by the Government in trusteeship for the free and unimpeded use of general public. These natural resources have a great importance to the people as a whole that it would be wholly unjustified to make them subject to private ownership. These resources being gift of nature should be made freely available to everyone irrespective of their status in life .

Further in M.C. Mehta v. Union of India 73 , Apex Court affirmed that:

the state is the trustee of the natural resources which are by nature meant for public use and enjoyment. The public at large is the beneficiary of the seas, rivers, air forests and other ecologically fragile lands and these resources cannot be converted into private ownership. The doctrine in this way imposes a duty upon the government to protect the resources for the enjoyment of the general public rather than to permit their use for private or commercial purposes .

Further, in the case of Siel Foods and Fertilizers Industries v. Union of India74,

surrender of lands by the industries was under a broad scheme framed by the Supreme

Court after assessment and consideration of the then existing situation. The scheme

contemplated not merely surrender of a part of the land but dedication of such

surrendered land to Delhi Development Authority (DDA) for the development of green

belt and open spaces. The land that was to be surrendered had to be retained as green

belt and open spaces and is not to be sold, constructed on or developed by DDA. Group

of industries has raising issue regarding compensation for land surrendered, when DDA

filed an interlocutory application for various directions. It is contended by the industries

that their industrial units which had been ordered to relocate were not bound to

surrender their freehold land free of cost and that DDA had to acquire the land 75.

72 (1997) 1 SCC 388. 73 (1997) 1 SCC 388. 74 (2010) 5 SCC 169. 75 (2010) 5 SCC Para 10.

217

Court held that:

the land to be surrendered would vest in trust in DDA for the benefit of the community and the additional FAR was the only compensation for such surrendered land for community benefit and there would be no further compensation .

5.19. PRECAUTIONARY PRINCIPLE

The Precautionary Principle has initiated in 1992 in the Rio Declaration on

Environment and Development and now is a part of important international

agreements and documents. Paragraph 7 of Bergen Ministerial Declaration of May

1990, reads :

In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation .

So far as the role of Indian Judiciary in context of precautionary principle is concerned,

the High Court of Calcutta in Burn & Company Labourers Co-operative Credit Society

Ltd v. Joydeb Datta76 held that it is a part of the doctrine of sustainable development in

environmental jurisprudence. Moreover, the precautionary principle is akin to the

principle of polluter pays and it has been accepted as part of law of the land 77.

5.19.1. Taj Trapezium (TTZ) Case

In M.C. Mehta v. Union of India and Others 78,

After hearing the parties, perusing the reports of the experts like NEERI, the Supreme Court directed, inter alia for the relocation of 252 industrial units from the TTZ . The Cproved beyond doubt that the emissions generated by the use of coke/coal by industries in TTZ are the main polluter of the ambient air .

76 AIR 2006 Cal. 74 at 78. 77 Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647; M.C. Mehta v. Union of India

(2002) 4 SCC 356; A.P. Pollution Control Board v. Prof. M.V. Naydu (1999) 2 SCC 718, AIR 1999 SC 812.

78 AIR 1997 SC 734.

218

5.20. DOCTRINE OF PROPORTIONALITY OF RISK

The other principle has been ingrained is that if a project is beneficial for the larger public; inconvenience to smaller number of people is to be accepted . Inconvenience of some should be bypassed for a larger interest or cause of the society79. In Narmada Bachao Andolan v. Union of India80, Apex Court observed that:

in the development matters, the required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a reasonable person test. Further, Court emphasized that in a democracy, welfare of the people at large, and not merely of a small section of the society, has to be the concern of a responsible government .

Apart from above decisions, Apex Court in the case of T.N. Godavarman Thirumalpad (through K.M. Chinnapa) v. Union of India and Others81, observed that:

where the commercial enterprise would bring in results which are far more useful for the people, difficulty of a small number of people has to be bypassed. The comparative hardships have to be balanced and the convenience has to get primacy over comparatively lesser hardship .

bove decisions makes it clear that the risk of harm to the smaller number of people for public interest is admissible. But, it is submitted that Doctrine of Proportionality of Risk sacrificed for the purpose of large public interest .

Several Judgments of Indian judiciary very much clears that the role of Indian

judiciary in context of environment protection and sustainable development is

marvelous and laudable. Judiciary in India has done a great service by declaring the

right to pollution free air, water and clean environment as fundamental right. It is the

efforts of judiciary that the concept of sustainable development has become the

important part in constitution of India and environmental jurisprudence in our country

along with certain other principles such as polluters pays principle, precautionary

principle, intergenerational equity, public trust doctrine, use and conservation of 79 G.

Sundarrajan v. Union of India, Civil Appeal No. 4440 of 2013 (Arising out of S.L.P. (C) No. 27335

80 CC 664. 81 (2002) 10 SCC 142.

219

natural resources, environment protection, obligation to assist and cooperate, doctrine

of proportionality of risk, doctrine of absolute liability and extended producer

responsibility (EPR) . Number of times, for the protection of environment, judiciary

applied the principle of sustainable development while deciding the cases . Moreover,

judiciary through the concept of Public Interest Litigation, arousing social awareness

about the importance of environment protection and sustainable development and

encouraged people to participate in the prevention and control of pollution programmes.

But still there are a number of hindrances in the way of achieving sustainable society,

which are given as under:

Our nation is suffering from many problems like hunger, diseases, poverty, exploitation and the like. Over 80 % of our population still does not know from where the next meal is to come from. In a nation where even food preservation has not been achieved, it hardly makes any sense for the people to implement the judicial recommendations in our daily life. To resolve the problem of hunger, the Indian National Food Security Act, 2013 is a positive step .

Number of cases related to environment protection and sustainable development are technical in nature. It is difficult for the courts to understand the complexities and technicalities of cases. Therefore, it is submitted that the handling of cases related to sustainable development and environment should be by the special courts which will only deal with environment related cases. Moreover, these Courts administered by specialist judges are having sensitivity towards environment and sustainable development, so they may help the speedy and required justice in environmental cases and the international commitments of India related to sustainable development may be met .

Powers of Apex Court are limited. Number of times, Supreme Court has issued directions to the administration regarding the closure of industries and projects which are harmful for the environment and sustainable development, but administration refuses to accept the directions of Apex Court on the name of

.

Although, the higher judiciary has shown activism while adjudicating the cases related to environment pollution, but the cases filed regarding the

220

environmental degradation in the district courts under the provisions of the Water Act, Air Act and Environment (Protection)Act, never reach their conclusion, because of various reasons like overburdened lower courts and lack of proper appreciation of the significance of the environment matters on the part of those in charge of conducting of those cases 82.

Apart from that, there is inadequate sensitivity amongst the professional, technical and even judicial people. Therefore accountability and transparency in judicial institutions is the need of the hour .

In the nutshell, it is submitted that despite all these problems, the reports of higher

appreciable . Judicial activism in this sphere is the need of the hour, more especially,

when legislature is lagging behind in plugging the lacunae in the existing legal

mechanism and the administration is still not well enough quick to meet the challenge.

Last but not the least; the researcher concludes that environment and development are

two sides of the same coin. Any one of them cannot be sacrificed for the other. Thus,

the responsibility lies on the Supreme Court and the various High Courts to deal with

these cases with caution of high degree. Then only, we will achieve our goal i.e. to

secure a pollution free developed country for our next generation . Further, it is

submitted by researcher that, the term eco-

everyday vocabulary, because awareness among the people and executive is the only

way to achieve the concept of sustainability .

82 Pushpinder Kaur in her research paper is also of the same view as the researcher. For further details

See; Pushpinder Kaur, Punjab Journal of Politics, Vol. XXXV, Nos. 1-2, 2011, published by