Green Decisions- 1999

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

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

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

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

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

1999 Bombay 177)

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

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

and order dated May 13th, 99)

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

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

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

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

AIR 1999 SC 912

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

Allahabad 382)

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

The petitioners, Indian Heritage Society and others filed a Public Interest Litigation in Bombay High

Court praying for an order to set aside all permissions granted by the Municipal Corporation of

Greater Bombay and Municipal Commissioner for the construction of new toilet blocks and the

demolition of old toilet blocks near the Gateway of India. The High Court dismissed the case stating

that it is not a fit case for interference under Article 226 of the Constitution as toilet block is a must

for human being at a place which is visited by large number of persons. The Court said that this

facility would prevent nuisance because there could be unauthorized use of open spaces around the

Gateway of India. In the appeal before the Supreme Court the petitioner did not challenge the

construction of the new toilet block or relief for demolition of old toilet block. The main grievance of

the petitioners was the observations made by the High Court relating the Coastal Regulation Zone.

The High Court had made an observation that the area near the Gateway of India is fully developed

up to the shoreline and it is within the Municipal limits of Greater Mumbai. It is already built up and

it has been provided with drainage and approach roads and other infrastructural facilities and hence

cannot fall within the ambit of CRZ II. The High Court had also observed that in view of Clause 1 of

CRZ II it is clear that the building cannot be permitted to the seaward side of the existing roads and

proposed Coastal Zone Management Plan. So the construction of toilet block on existing road is not

in violation of CRZ II norms. In their order, High Court had also made it clear that once an area is

covered under CRZ II it could not fall within the ambit of CRZ I or CRZ III. The Supreme Court as

regards the impugned High Court Judgement that the entire city of Bombay would fall within CRZ II

held that the observations of the High Court were not warranted. It left the matter for the

consideration of notification to the State of Maharastra as it did not find any conflict with regard to

substantial laws of CRZ in this petition.

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

The petitioner filed a public interest litigation in the year 1984 alleging that the foundries,

chemical/hazardous industries and the refinery at Mathura are the major sources of damage to the

Taj, priceless national monument of India. The Sulphur Dioxide emitted by Mathura refinery and

industries when combined with oxygen - with the aid of moisture in the atmosphere forms Sulphuric

Acid called Acid rain which has a corroding effect on the gleaning white marble. It was also stated in

the petition that industrial/refinery emission brick kilns, vehicular traffic and generator-sets are

primarily responsible for polluting the ambient air around Taj Trapezium. The court in their order

after 13 years in 1997 held that the emissions generated by coke/coal consuming industries are air

pollutant and damage effect on Taj. So the relocation of the industries in the Taj Trapezium is to

resorted to only if the natural gas which has been brought at the doorstep of as a substitute for

coke/coal. As the Gas Authority of India has already invited the industry to apply for natural gas

connection, the industries which are not in a position to obtain gas connections for any reason shall

stop functioning with the aid of coke and coal in this area and may relocate them by approaching

corporation/government for alternative plots. The court also made several directions in this regard

for the protection of the Taj area.

Pursuant to this order the Gas Authority of India Limited filed an application before the Supreme

Court to extend the schedule for supply of gas to industries in Zone I of Agra city in such a manner

that in respect of cupola - based industries supply of gas by GAIL coincides with the readiness of the

consumer industries to draw Gas and to direct non - cupola based industries in Zone I to draw gas

latest by September 1999. The application also prayed for a direction to the Secretary PWD

Government of U.P. and Secretory/Director General Government of India, Ministry of Surface

Transport to grant the permission for underpinning the gas pipeline to the Tumunal Road Bridge

within four weeks so that GAIL may be able to the schedule for supply of Gas to Zone II and Zone II

laid by the 30th May 98 order of the Supreme Court. As there were 168 industries operating in this

area and out of which 115 entered into agreement with GAIL for supply of natural gas the court

observed that there is no justification for the other 53 industries to function in this area. It was

placed before the court record that the rest are waiting for the technology to be developed by the

National Metallurgical Laboratory. The court in their earlier order on May 12th 1999 had issued

notice to 79 industries in Zone I requiring them to show cause why they were not availing the facility

to be supplied by GAIL so the main question before the court was whether 79 coke/coal industries

which are continuously using coke/coal to be allowed to pollute the air in and around Taj Trapezium.

The court keeping in mind the NEERI and or Varadarajan report and affidavit filed by the industries

directed 53 iron boundaries to be closed forthwith unless they have shifted. The court could not also

find any reason for the non-cupola industries for not accepting the natural gas from GAIL and

ordered for the closure of the same.

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

Hot mix plants; which were treated as hazardous industries were closed with effect from 1997 in

pursuance of an order of the Supreme Court. The Airport Authority of India at the Indira Gandhi

International Airport, New Delhi filed an application for permission to install hot mix plants in the

vicinity of the airport for a period of one year for resurfacing of the runways for the safe landing and

take off of air crafts and for smooth handling of aircraft traffic. The application also stated that the

resurfacing of the runways was last done in the year 1990-91, while surfacing of the secondary

runway was carried out in 1993. It was further stated that due to the constant use of these runways

by the ever increasing traffic both domestic and international tracks have developed in the runways

due to which certain runways were showing sign of distress, all of which required immediate

resurfacing. Owing to an extraordinary exceptional and special circumstances it was prayed before

the court to permit the setting up a not mix plant. The Airport Authority also set out a set of

undertakings inform of an affidavit to be followed by them.

The important undertakings are ; (1)the hot mix plants shall be at least two kilometers away from

populace and residential areas; (2)the hot mix plants shall be fitted with pollution control devices of

international standard and shall meet all the requirement prescribed by the Central Pollution Control

Board; (3) the hot mix plants shall be used only for the purpose of preparing premix material for

resurfacing of runways and not for other purpose. The petitioner placed several documents

containing the bad effect of installation of hot mix plants in these areas. The court after going

through the submission made by the petitioner and applicant ordered for installation of hot mix

plant in the I.G. Airport. The reasoning given by the court was resurfacing of Air Port Runways is a

work of national importance and the Air Port Authority of India has already called for global tenders

for the job in question in which one of the eligibility criteria is that the firm must possess an

adequate capacity environment friendly not mix plant; electronically computerized paver finisher

pneumatic and conventional rollers and tools and tackles.

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

This case was filed under Art. 226 of the Constitution of India for issuance of an appropriate writ to

quash the order of the Additional District Magistrate banning the use of polythene bags throughout

the District of Karnrup in Assam. The petitioners in this case were the proprietors of factories for

manufacturing and supply of polythene bags. They alleged that the order of the Additional District

Magistrate under section 144 of the Code of Criminal Procedure had curtailed their fundamental

right to carry on trade and business. In the petition they also contended that they had obtained

licences/no objection certificates from the Gauhati Municipal Corporation, District Industries and the

Central and State Pollution Control Board. The main issue before the court was whether the

Additional District Magistrate had exceeded his jurisdiction under section 144, Cr.P.C. in passing the

impugned order banning the use of polythene bags. The Gauhati High Court in its order held that

unregulated and indiscriminate use of the polythene bag and its impact on environmental

degradation could not be a ground for invoking S. 144, Cr.P.C. by imposing total ban on its use. The

single judge bench also made it clear that if the district administration or the State Government

considered that a total ban of polythene bag use was required, they could impose it by taking resort

to appropriate legislations. The court also categorically pointed out that in the above mentioned

facts S.144 Cr.P.C. could be used for a short period but not in perpetuity.

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

1999 Bombay 177)

A public interest litigation was filed by the Goa Foundation challenging the permission granted by

the Conservator of Forests contrary to the Forest (Conservation) Act 1980 for carrying our certain

developmental activities in the forest area of village Penha.de Frana of Bartez Taluka of Goa.

According to the petitioner, the land in question was a forest land and non forest activity therein

was not permissible unless prior permission was taken from the Central Government under the

Forest Conservation Act 1980. The petitioner alleged that alterations were made in the survey

record for facilitating the residential complex work in the area of 11.275 sq metres. The Court looked

into the rival contentions made by the Forest Department by scrutinizing the past record of the land.

It also verified the Forest Department instructions for application of Forest (Conservation) Act 1980

to private forest. Tracing the history of the said land the court observed that the construction

activity in these areas was for a non-forest purpose and as no approval had been taken from the

Central Government in this regard the developmental activity carried out in the area had to be

stopped.

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

The petitioner, the General Secretary of All India Trinamul Congress filed this writ petition praying

for cancellation of the election programme in two districts of Darjeeling or to reschedule the

Madhyamik and Higher Secondary Examination (as the same was scheduled at the time of election)

and alternatively for making suitable relaxation of the ban on use of loud speakers and microphones

during the examination period for facilitating the election campaign. It was argued by the petitioner

that as the election process had already commenced there was no scope for deferring the election.

The respondents also contended that the examinations could not be rescheduled. So the Court was

left with the option of considering the co-existence of both the programmes keeping in mind the

impact of sound pollution on the environment. In the light of the above mentioned circumstances

the Court ordered a total ban on the use of microphones in any residential or mixed residential area

and within half a kilometre of such area where the examination was due. It also made clear that

microphones fitted with sound limiters could however be used for the purpose of election

propaganda outside such area only from 5 p.m. to 7 p.m but maintaining a sound limit not exceeding

45 dB and not affecting the silence zone.

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

and order dated May 13th, 99)

Keeping in mind the vehicular pollution in Delhi in the next millennium, a Public Interest Litigation

was filed by Mr. M.C. Mehta in the Supreme Court of India seeking various relief's from the court to

curb the vehicular traffic in Delhi. On 7th January 1998 a committee had been constituted under the

Chairmanship of Sri Bhure Lal known as "Environment Pollution (Prevention and Control) Authority

for the National Capital Region and a direction was issued by the apex court to submit a report about

the action taken by the committee for controlling vehicular pollution and matters connected

therewith. As per its order, dated April 16th, the Court perused the report submitted by the said

committee (of April 1, '99). According to the report private (non commercial vehicle comprise 90% of

the Nitrogen Oxide (NOx) and respirable particulate matter (RSPM) from vehicular exhaust over

Delhi is due to diesel emission. It was estimated that chronic exposure to such toxic air contaminant

would lead to 300 additional cases of lung cancer per year. The petitioner has prayed before the

court to suspend the registration of diesel vehicles in Delhi until further orders are passed by the

court as the automobile industries sought time for examining the proposal made by others with

regard to Euro norms. When the matter came up for hearing on April 29th considering the

suggestions made by Bhure Lal Committee, Amicus Curie and automobile manufacturers the court

forced the Indian Automobile Industries to confirm to the Euro II and Euro III norms. The court in its

order directed all private (non commercial) vehicles which conforms to Euro II norm to be registered

in the NCR without, restriction. All private (non commercial) vehicles shall conform to Euro I norm by

1st June, 1999. The same type of vehicle shall conforms to Euro II norms to 1st April 2000. This

direction will be applicable to diesel and petrol driven cars (private non commercial vehicle). To

facilitate registration the court further observed the registering authority may register the vehicle

concerned on a certificate of the manufacture duly authenticated by the authorized officer certifying

that the vehicle concerned confirm to Euro I/Euro II norms. In its 13th May order the court clarified

that restriction imposed on April 29th order would not apply to registration of vehicles which are

fitted with Compressed Natural Gas (CNG) kits and ply on CNG only. It is also clarified in this order

that Euro I norm for the purpose has been notified by the Government of India through a

Notification dated 28.8.97.

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

This petition was filed by the state of Gujarat bringing to the notice of the court the reactions of

Narmada Bachao Andolan activists in connection with the interim order of the apex court permitting

the increase of the height of the Dam to RL 85 metres. The attention of the court was drawn to an

article and a book written Ms. Arundhati Roy and interview of Ms. Medha Pathkar appeared in the

Hindustan Times. The court after looking into the press releases, the article and certain portions of

the book "The Greater Common Good " observed that Prima facie it appears that there is a

deliberate attempt to undermine the dignity of the court and to influence the court of justice. The

court opined that the litigant must realise that courts cannot be forced by pressure tactics to decide

pending cases in the manner in which the concerned party desires. It will be a negation of rule of law

if the courts were to act under such pressure. After perusing the book written by Ms. Arundhati Roy

who is not a party to proceedings pending in the Court relating to Sardar Sarovar Dam the Court

observed that the judicial process and institution cannot be permitted to be scandalised or subjected

to contumacious violation in such a degenerating manner in which it has been done by her; It is

obvious that she decided to use her literally fame by misinforming the public and projecting in a

totally incorrect manner how the proceedings relating to resettlement and rehabilitation had shaped

in this court and distorted various directions given by the court during the last five years. Freedom of

speech and expression does not include freedom to distort the order of the courts and present

incomplete and one side picture deliberately which has the tendency to scandalise the court. The

court expressed its unhappiness over the act of the NBA leaders but did not proceed on taking any

action against them as it felt that the courts shoulder are broad enough to shrug off their comments

and the focus of the court should not shift from resettlement and rehabilitation of the Narmada

outsees.

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

The write petition was filed in seeking directions from the court to declare that smoking of tobacco

in any form, whether in the form of cigarette beedies or otherwise in public places is illegal

unconstitutional and violative of Art 21 of the constitution of India. The petitioner also prayed for

direction to the respondents to take appropriate and immediate measures to prosecute and punish

all persons guilty of smoking in public places. It was placed before the court that epidemiologic and

experimental evidence has identified cigarette smoking as the primary cause of living cancer and

chronic obstructive pulmonary diseases (COPD). It is also the primary cause of chronic bronchitis and

emphysema. Passive smokers also gets the diseases that are caused by smoking. The court looked

into the various laws relating to this subject as embodied in Section 268, 278 of IPC Rule 227 (1) d

and 227(5) and 22(A) of Kerala Motor Vehicles rule, Section 133 Cr.P.C and Constitutional Provisions.

In its judgement the court after giving a brief outline of the importance of protection o environment

directed the District Collectors of all the Districts of the State of Kerala who are suo motu impleaded

as Additional respondents 39 to 52 to promulgate an order under Section 1339a) Cr.P.C. prohibiting

public smoking within one month from today and fiect the 3rd respondent Director General of

Police, Thiruvanthapuram, to issue instructions to his subordinates to take appropriate and

immediate measures to prosecute all persons found smoking in public places treating the said act as

satisfying the definition of "public nuisance" as defined under Section 268 IPC, in the manner

indicated in this judgement by filing a complaint before the competent Magistrate and direct all

other respondents to take appropriate action by way of display of 'Smoking Prohibited' boards etc.,

in their respective offices or campuses.

It also issued direction to Addl. Respondents 39 to 52 to issue appropriate directions to the

respective R.T.Os to strictly enforce the provisions contained in Rule 227(1) (d) and 227 (5) of the

Kerala Motor Vehicles Rules, 1989.

The court observed tobacco smoking in public places falls within the mischief of the penal provisions

relating to "public nuisance" as contained in the Indian Penal Code and also the definition of "air

pollution" as contained in the statues dealing with the protection and preservation of the

environment, in particular the Air (Prevention and Control of Pollution) Act, 1981.

The respondents, repositories of wide statutory powers and enjoined by the statute and Rules to

enforce the penal provisions therein are duty bound to require that the invidious practice of smoking

in public places, a positive nuisance, is discouraged and offenders visited with prosecution and

penalty as mandated by law. Accordingly, the respondents are liable to be compelled by positive

directions from this Court to act and take measures to abate the nuisance of public smoking in

accordance with law. Directions in the above lines are hereby issued.

Finally the court observed that the continued omission and inaction on the part of the respondents

to comply with the constitutional mandate to protect life and to recognize the inviolability of dignity

of man and their refusal to countenance the baneful consequences of smoking on the public at large

has resulted in extreme hardship and injury to the citizens and amounts to a negation of their

constitutional guarantee of decent living as provided under Article 21 of the Constitution of India.

Media print and electronic will take note of this judgement and caution the public about penal

consequences of violation of the ban on public smoking.

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

This special leave petition relates to the appointment and removal of Manipur State Pollution

Control Board Chairman. The respondent Chairman Manipur Pollution Control Board was appointed

on 16/10/99 to fill the vacancy resulting from the resignation of the erstwhile Chairman. By a

notification dated 26/5/97, the Board was reconstituted by the Governor and the Board. Thereafter

the Board was reconstituted by the Governor two times. Sometime thereafter certain allegations

were made against the respondent under section 6(1) g of the water (prevention and control of

pollution act seeking his disqualification on the ground that he had abused his position and his

continuance as chairman would be detrimental to the interest of general public. A show cause notice

was issued and after considering his reply the Governor directed the respondent to be removed

from the office as chairman of the Board. The respondent then filed a writ petition before the High

Court of Assam challenging the order the Governor.. The High Court set aside the removal order of

the Governor. The State appealed to a Division Bench but could not succeed in altering the Single

Bench Order. Before the Supreme Court the appellant state contended that,

(i)the High Court was wrong in acting like a court of appeal and deciding on merits that the

respondent had not abused his power (ii)the High Court was wrong in supposing that the term of the

Pollution Control Board Chairman of 3 years was to run from the date of his order of nomination

dated 16/10/99. To substantiate the two arguments the appellant also placed before the court that

the respondent was given reasonable opportunity to meet the charges mentioned against him as

mentioned in the show cause notice. The court did not accept this contention of the State and

opined that the grievance of the state had become of academic. Regarding the second contention

the court took into account the fact that the term of office of a member would be three years from

the date of the notification. He would also be entitled to continue to hold office beyond his

permitted time till his successor enters upon his office. The law in this regard lays down that a casual

vacancy in a Board shall be filled by a fresh nomination and the person nominated to fill the vacancy

shall hold the office only for the remainder of the term for which the member in whose place he was

nominated to hold office. In the present case the earlier chairman was appointed on 5/5/1995 and

resigned on 10/7/96 and the respondent was appointed in his place. Therefore as per the law the

unexpired term of his tenure as a substituted nominee chairman would have continued only upto

4/5/1998. The Supreme Court also stated that wherever there is a vacancy which is filled up, the

state authorities seem to be reconstituting the entire board when new members or new Chairman

inducted. As per law the State Board shall be a body corporate with the name specified in the State

Government having perpetual succession and common seat. So even though the State Government

has authority to reconstitute the Board from time to time only because some casual vacancy occurs

it may not strictly be necessary for the authorities to undertake the exercise of reconstituting the

entire board nor could be the said reconstitution be directed to continue until further orders, as the

tenure of the other members of the reconstituted board will be governed by subsection (1) of

section 4. The court accepted the contention of the State that the High Court was in error in taking

view that the tenure of the respondent could have some beyond 4/5/98. As the respondent; at the

time of passing of the order of Supreme Court had only less than a month to continue as the

Chairman the Court ordered that after his term, it will be open to the appellant authorities to fill up

the vacancy of the Chairman in accordance with law.

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

1999 SC 912

M/s. Surana Oils and Devivatives (India) Ltd., a Public Limited Company, was incorporated with the

objective of setting up an industry for production of Castor Oil derivatives. It applied to the Andhra

Pradesh Pollution Control Board for grant of ( No Objection Certificate) NOC. The application was

rejected by the A. P. PCB. In the ground that M/s. Surana was a polluting industry and that it was not

desirable to locate it in the catchment area of the Himayat Sagar Lake. Aggrieved by the rejection,

the company appealed to the appellate authority under S. 28, Water Act. The appeal was allowed

and the Pollution Control Board was directed to give its consent subject to any conditions it chose to

impose. The company then filed a Writ Petition before the High Court for a direction to the Pollution

Control Board to implement the Order of the appellate authority under the Water Act. The High

Court allowed the Writ Petition . The A.P.P.C.B appealed to the Supreme Court.

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

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

2) the uncertain nature of scientific opinions

3) the precautionary principle and the new burden of proof

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

environmental laws.

5) the scope for the Supreme Court or the High Courts to refer environmental matters to the

National Environmental Appellate Authority,1997 for investigation and opinion.

a) On the problems faced by Environment Courts/Tribunals due to complex science and technology,

the court observed that the difficulty faced by environmental courts in dealing with highly

technological or scientific data appeared to be a global phenomenon. Lord Woolf's lecture reported

in 1992. J. Environmental Law Vol.4, No.1, P1 was quoted by the court. The Courts' ability to handle

complex science rich cases has recently been called into question, with widespread allegations that

the judicial system is increasingly unable to manage and adjudicate science and technology issues.

Critics have objected that Judges cannot make appropriate decisions because they lack technical

training, that the jurors do not comprehend the complexity of the evidence they are supposed to

analyse, and that the expert witnesses on whom the system relies are mercenaries whose biased

testimony frequently produces erroneous and inconsistent determinations. If these claims go

unanswered, or are not dealt with, confidence in the judiciary will be undermined as the public

becomes convinced that the Courts as now constituted are incapable of correctly resolving some of

the more pressing legal issues of our day.

b) The Court observed that uncertainty of scientific opinions had created serious problems for the

courts. While scientists could refine, modify discard variable or models when more information

became available, Courts had to make choices based on existing scientific knowledge. The

'uncertainty' of scientific proof and its changing frontiers from time to time has led to great changes

in environmental concepts during the period between the Stockholm conference of 1972 and the Rio

Conference of 1992.

c) The court then referred to the formulation of the precautionary principle and the new burden of

Proof. Elaborating upon the dictum in Vellore Citizen's Welfare Forum v. Union of India (1996) 5 SCC

647, the Court observed that the inadequacies of science is the real basis that had led to the

precautionary principle of 1982. It is based on the theory that is better to err on the side of caution

and prevent environmental harm which may indeed become irreversible.

The Principle of precaution involves the anticipation of environmental harm and taking measures to

avoid it or to choose the least environmentally harmful activity. It is based on scientific uncertainty.

Environmental protection should not only aim at protecting health property and economic interest

but also protect the environment for its own sake. Precautionary duties must not only be triggered

by the suspicion of concrete danger but also by (justified) concern or risk potential.

The precautionary principle suggests that where there is an identifiable risk of serious or irreversible

harm, including for example, extinction of species, widespread toxic pollution, it may be appropriate

to place the burden of proof on the person or entity proposing the activity that is potentially harmful

to the environment.

It is also explained that if the environmental risks being run by regulatory inaction are in some way

"uncertain but non-negligible", then regulatory action is justified. This will lead to the question as to

what is the non-negligible risk'. In such a situation, the burden of proof is to be placed on those

attempting to alter the status quo. They are to discharge this burden by showing the absence of a

"reasonable ecological or medical concern". That is the required standard of proof. The result would

be that if insufficient evidence is presented by them to alleviate concern about the level of

uncertainty, then the presumption should operate in favour of environmental protection.

d) The Court then surveyed the judicial and technical inputs in environmental appellate

authorities/tribunals fell short of a combination of judicial and scientific needs. Things are not quite

satisfactory and there is an urgent need to make appropriate amendments so as to ensure that at all

times, the appellate authorities or tribunals consist of Judicial and also Technical personnel well

versed in environmental laws. Such defects in the constitution of these bodies can certainly

undermine the very purpose of those legislations.

The Court opined that the Government of India should bring about appropriate amendments in the

environmental statutes, Rules and Notification to ensure that in all environmental courts, Tribunals

and appellate authorities there is always a Judge of the rank of a High Court Judge or a Supreme

Court Judge -sitting or retired- and a scientist or a group of scientists of high ranking and experience

so as to help a proper and fair adjudication of disputes relating to environment and pollution.

The Court held that there is also immediate need that in all the States and Union Territories, the

appellate authorities under Section 28 of the Water (Prevention of Pollution ) Act, 1974 and Section

31 of the Air (prevention of Pollution) Act, 1981 or other rules there is always a Judge of the High

Court, sitting or retired and a Scientist or group of scientists of high ranking and experience, to help

in the adjudication of disputes relating to environment and pollution.

e) While considering whether the Supreme Court while dealing with environmental matters under

Art. 32 or Art.136 or High Courts under Art. 226 can make reference to the National environmental

Appellate Authority under the 1997 Act for investigation and opinion the court held that both

environmental concerns and human rights concerns were to be traced to Art.21, while

environmental aspects concern 'life', human rights aspects concern 'liberty'.

The court observed that in the context of emerging jurisprudence relating to environmental matters,

as it is the case in matters relating to human rights, it is the duty of this court to render justice by

taking all aspects into consideration. With a view to ensure that there is neither danger to

environment nor to ecology and at the same time ensuring sustainable development the court

concluded that it can refer scientific and technical aspects for investigation and opinion to expert

bodies such as the appellate authority under the National Environmental Appellate Authority Act,

1997.

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

Allahabad 382)

The petitioner, M/s The Claridges Corbertt Hideaway is a company doing hotel business at

Ramanagar Nainital District. The writ petition was filed to challenge the notice that served by State

Government on the company alleging that the company had illegally pumped out water from the

Dhikuli Canal and thus, was liable to pay royalty for the unauthorized use of water from the canal

distributing water from Kosi river. The company contended before the court that the water which it

draws from the canal coming out of the Kosi river is not unauthorized nor illegal and, secondly any

charge made for using this water including penalty was unwarranted and thereby the assessments

were illegal. It was also contended that before serving the notice on the company, the Government

should have informed the Company about the functions of the authority so as to prevent drawing of

water from canal which is coming out from Kosi river and the criteria for levying of charges. The

Government placed before the court that the hotel was established in year 1993 and since then the

petitioner was receiving repeated notices that the pipeline which it had inserted into the canal was

illegal and it could not draw water from the canal as per the provisions of Northern India Canal and

Drainage Act 1873. It was the contention of the company that they had not installed the pump to

draw water from Dhikuli Canal, as the pump already existed as a part of the establishment and they

bought the entire property and converted it into a hotel. The company accepted that the hotel was a

swimming pool for which arrangements had been made between 1993 to 1997 by drawing water

from the canal from Kosi River. As the canal was lower than the hotel complex there could be no

natural flow of the canal and under the circumstances it had to make arrangements by drawing

water form the canals using pumps. So the petitioner had intimated the authorities that it was

removing the pump provided arrangements were made be made to bring water of the Kosi River by

canal to flow near the establishment of the company. In this ex-post facto situation the court looked

at the definition of canal as it is defined in the Northern India Canal and Drainage Act 1873. The

word canal includes; (a)all canals, channels and reservoirs constructed, maintained or controlled by

the Government for the supply or storage of water (b)all works, embankments, structures, supply

and escape channels connected with such canals, channels or reservoirs; (c)all water courses as

defined in the second clause of this section; (d)any part of a river, stream, lake or natural collection

of water, or natural drainage channel to which the State Government has applied the provisions of

Part II of this Act"

The court observed that the act was legislated hundred years ago. It was at a time when there was

very little violation of the environment. The basic purpose of this enactment was to control waters

for irrigation and perhaps any vessel traffic on the rivers streams and the reservoir. The court

underlined the importance of preservation of environment by stating that the hotel of the petitioner

should not have been constructed next to channels, canals, reservoirs river, streams, lakes etc.,The

court further observed that the petitioner had already drawn water illegally and now taken recourse

to the law to regularize the illegal activities. Hence the writ petition could not be maintained.

Almitra H. Patel v. Union of India AIR 2000 SC 1256

B. N kripal, D. P Mohapatra and R. P Sethi, JJ

The petition was in relation to solid waste disposal. In 1998, the Supreme Court had constituted a

Committee to look into aspects of urban solid waste management relating to

-the examination of existing practices and suggest hygienic processing and waste disposal practice

and proven technologies on the basis of economic feasibility and safety .

-promoting eco- friendly sorting, collecting transportation, disposal, recycling and reuse.

-review Municipal bye-laws and powers of local bodies and regional planning authorities to ensure

effective budgeting, financing, administration, monitoring and compliance.

-examine and formulate standards and regulations for management of urban solid waste and set

time frame within which the authorities shall be bound to implement the same.

The State responded positively to the suggestions. The Central Government notified the

Management of Municipal Solid Waste (Management and Handling) Rules 1999.

The Court expressed concern that the 14 directions, issued by it in Dr . B.L Wadehra's case (AIR 1996

SC 2969) relating to cleaning up of the cities, were not complied with. The Court once again stressed

the importance of the directions, more specifically those relating to providing landfill sites,

construction of compost plants, action against people who spread litter .

The Court stated, the fact that keeping Delhi clean being a "daunting task", it cannot be a reason for

lack of initiative or inaction on the part of the authorities concerned. The Court expressed its

disapproval of the complete lack of accountability at all levels of the Corporation, which has lead to a

lack of effort on the part of the employees concerned. The Court cited the example of Surat, which

was one of the dirtiest cities until the single handed effort of one man, a dedicated Municipal

Commissioner who worked with "selfless zeal", made Surat, the second most clean city in India. The

Court reiterated repeatedly that local authorities, Government and all statutory authorities must

discharge their statutory duties and obligations in keeping the city at least reasonably clean.

The Court accepted the contention that their was a shortage of Judicial Magistrates who could take

action against the persons who litter the city, under the Delhi Municipal Corporation Act, 1957 and

the New Delhi Municipal Act, 1994. The Court that the Government can appointing a person as

Executive Magistrates under S. 20 or Special Executive Magistrates under S. 21 of the CrPC, who can

be empowered to deal with minor offence under the above Acts so that the problem could be

solved.

The problem of waste management is especially difficult in areas where a large number of

inhabitants live in unauthorised colonies, with no proper effluents, or in slums with no care for

hygiene. It stressed that, the building of slums in cities has resulted in an increase in density of

inhabitants which has to be prevented.

The Court concluded the judgement, by giving directions over and above " those given by it in the

case of Dr. B.L. Wadehra.

It directed the Municipal Corporation of Delhi (MCD), New Delhi Municipal Corporation (NDMC) and

the Cantonment Board and other officers responsible for the sanitation of the city to ensure that the

relevant provisions of the Delhi Municipal Corporation Act and the New Delhi Municipal Council Act

relating to sanitation and public health, prohibiting accumulation of any rubbish, filth, garbage or

other polluted obnoxious matters in any premises and/or prohibiting any person from depositing the

same in any street or public place shall be scrupulously complied.

Surface cleaning of streets, parks on a daily basis, including on Sundays and public holidays.

Authorisation to the MCD, NDMC and other statutory authorities to levy and recover charges and

costs on the spot from any person littering or violating provisions of the diverse Acts, bye-laws and

Regulations relating to sanitation and health for violating the directions being issued herein. These

authorities will have to prepare and publish for the information of the public at large the scale of

such charges/costs as may be levied and recovered in respect of the diverse Acts of commission

omission. Until these rules, a sum of Rs. 50 is to be charged to any person littering or violating the

provisions of the Acts.

These authorities were further directed to ensure proper and scientific disposal of waste in a

manner so as to sub serve the common good.

Sites for landfills be identified within a period of four weeks from the date of the judgement and

handed over to the MCD and/or NDMC. The sites were to be identified keeping in mind the

environmental considerations and in identifying the same, the Central Pollution Control Board's

advice will be taken into consideration.

Directed the Union of India, through its various authorities, to take appropriate steps for preventing

any fresh encroachment or unauthorised occupation of public land for purposes of dwelling resulting

in creation of a slum.

Directing the authorities to find 8 sites for the setting up of compost plants and to set up the plants

and have them working by 30th September 2000.

The MCD, NDMC and other authorities were to publish the names of concerned Superintendents of

Sanitation and such equivalent officers who are responsible for cleaning up Delhi who can be

approached for any complaint/grievance by the citizens of Delhi.

Magistrates to be appointed, within 6 weeks from the date of the order, under S. 20/21, CrPC, as

mentioned above.

Compliance reports were to be filed in response to directions, by the concerned authorities within 8

weeks from the date of the judgement and indicated the extent to which they agree to comply to

the directions.

In this judgement the Court has given the most important directions to the Municipal Corporation,

which is not only applicable for Delhi Municipal Corporation but a direction which has to be followed

by the Corporations of all the States.

The Court has noticed the shortage of Judicial Magistrates who could take action against the persons

who litter the city under the Delhi Municipal Corporation Act, 1957 and the New Delhi Municipal Act,

1994. This is also true in relation to the other cities in India.

The solution for this problem has also keen mentioned by the Court, ie, appointment of Executive

Magistrates under Sec. 20 or Special Executive Magistrate Sec. 21 of Cr. P. C. who can be compelled

to deal with the above mentioned problem.

The Government of various States shall take note of the above mentioned directions and shall direct

the Municipal Corporation's to implement them by passing necessary by laws to that effect.

Kennedy Valley Welfare Association v. Ceylon Repatriates Labourers Welfare and Service Society

2000(2) SCALE 143

A public interest litigation was filed by Krishna Nagar and Kennedy Valley Welfare Association and

various other residents of the area seeking a mandamus to direct the closure of the stone-crusher

and stone-quarries operating in the vicinity close to their residential area. The High Court Judge

appointed an expert committee to inspect the area and submit a report.

There by, the High Court of Madras issued a direction for the closure of all quarrying or crushing

operation within 500 meters of the residential area. Beyond the 500 meter limit they would operate

with a licence/permission and only if they adopt the pollution control measures recommended by

the National Productivity Council, New Delhi enclosing the jaw crusher and the screens so as to

contain dust and noise and making arrangements for suppression of dust as well as air pollution.

Further no quarrying of blue metal shall be permitted within 500 metres of the residential area and

permitted only if they are beyond the limit of 50m of the residential area and strictly following the

procedures required by the Mines and Safety regulations. Quarrying can be allowed by the State,

provided it does not in any manner endanger human life or the vegetation. The Court expressed its

concern as to why the State had not considered the applications made by the quarries for licences. It

directed the State to dispose the applications within a month of the date of the order .

The quarry owners filed writ appeal by virtue of which the limit of operation of the quarries was

reduced from 500m to 50m. The residents of the locality in this petition are challenging this

reduction of limit. This Court held that the lower Court was not justified in reducing the area

restriction from 500m to 50m in respect of the quarries.

This judgement is important as it has upheld the decision of the learned single judge who rightly

appointed an Expert Committee and by accepting its recommendation ordered not to allow any

quarrying or crushing operation close in residential area and within 500 meters of the residential

area.

Ramji Patel v. Nagrik Upbhokta Marg Darshak Manch (2000) 3 SCC 29.

The basis for this public interest litigation petition before the M.P High Court was that the main

water pipelines which supplied water, after its filtration at Lalpur Filtration Plant, to Jabalpur city,

passed through the place where a number of diary- owners, had started storing cow/buffalo dung

and waste of the diary products near the pipelines which was likely to contaminate the pure water

supplied to the residents of the city for home consumption.

After due processing of evidences, it was directed by the Court that the dairies located on the

outskirts of Jabalpur city be shifted from their present location to alternative sites as they were a

great hazards to the people of Jabalpur by polluting the water supply.

The High Court asked the authorities to undertake the rehabilitation of the diary-owners by allotting

each diary-owner a specific site. In the meantime, the application for stay of the proceedings was

granted by the Supreme Court. By a subsequent order the Court directed the Central Water

Pollution Control Board to depute a specialist who may, after inspecting the site, suggests measures

which can be taken for treatment of cowdung and the urine of the cattle to prevent it from flowing

above the pipeline and exclude the possibility of contamination of the water passing through the

pipeline.

An affidavit, containing recommendations and suggestions, in response to this direction of the

Supreme Court, was submitted by the authorities of the Central Pollution Control Board. The Court

directed the implementation of these recommendations. As per the recommendations, initiatives

towards the construction of a bio-gas plant was made.

In the meantime, the Municipal Council filed an affidavit stating that the all diaries within the

municipal corporation limits must be removed from the city limits.

The Court held that the supply of pure drinking water is the Statutory duty of the Municipal

Corporation and the supply of such water has to be ensured to every citizen. In a situation, where

the interest of the community is involved, the individual interest must yield to the interest of the

community or the general public. Since the Cattle (Control) Act, 1978 is already in force within the

municipal limits of Jabalpur city, the diaries cannot be established and the cattle cannot be kept so

as to cause nuisance in contravention of the Statutory provisions. But the Court also cannot overlook

the fact that the petitioners who had already been uprooted from one place and that too, at the

dictate of the judiciary, had established diaries at a place at which such activity was not prohibited.

Moreover, the petitioners have already invested huge sums in setting up the gobar gas plant.

The Court held that the

diaries cannot be permitted to continue nor can anyone be permitted to establish diaries in those

villages specially in the proximity of the main pipeline through which the drinking water is supplied

to the city of Jabalpur.

since the bio-gas plant was constructed, Municipal Corporation was to pay the amount spent by the

petitioners on the bio-gas plant back to them.

The Court drew a nexus between the protection of the environment and Art. 21 of the Constitution.

It held that "any disturbance of the basic environment elements, namely air, water and soil, which

are necessary for "life" would be hazardous to "life" within the meaning of Art 21 of the

Constitution.

The Court stated that precedent laid down, that if Fundamental Rights under Art 14 and 21 of the

Constitution are violated by disturbance to the environment, it can, under Art 32, award damages

not only for the restoration of the ecological balance, but also for the victims who have suffered due

to that disturbance. Such awarding of damages is in consonance with the "Polluter Pays Principle" i.e

the wrongdoer. The polluter is under an obligation to make good to the damage caused to the

environment.

The Court referred to the numerous forums which had accepted the polluter pays principle- the UN

Economic Commission for Europe, Organisation for Economic Co- operation and Development,

incorporated into European Community law through the enactment of the Single European Act,

1987 and the 1992 Maastricht Treaty .The Supreme Court had applied it in a number of decisions as

Indian Council for Enviro Legal Action v. Union of India, AIR 1996 SC 1446, Vellore Citizens Welfare

Forum v. Union of India, AIR 1996 SC 2715. The Water (Prevention and Control of Pollution) Act,

1974, the Environment (Protection) Act, 1986 and the Air (Prevention and Control of Pollution) Act,

1981 provide for the imposition of a fine for violations of the provisions of the Acts.

In this case, the court had recognised the doctrine of "public interest" and the existing Cattle

(Control) Act, 1979. The Court held that pure drinking water is the statutory duty of the Municipal

Corporation and the supply of such water has to ensured to every citizen. In such a situation, where

the interest of the community is involved the individual interest must yield to the interest of the

community or the general public.

State of Himachal Pradesh v. Smt. Halli Devi, AIR 2000 H. P 113

R. L Khurana, J.

The petitioner through this petition claimed compensation in tort for damages for injuries sustained

by the claimant as a result of attack by ferocious wild animal i.e . black bear. The question before the

Court to adjudicate was whether the Wild Life Protection Act 1972 provides any sort of

compensation is the form of damages to be awarded as a result of attack by wild animals? Whether

the State is liable under the Law of Tort for payment of compensation?

The respondent, was a resident of the District of Chamba and while going to her cattle shed for the

purpose of feeding her cows, was attacked by a black bear as a result of which she sustained the

serious injuries: like loss of complete eye sight, compound fracture of left mandible, nasal bone, left

forearm etc. As a consequent, her permanent disability was assessed at 100 % by medical

authorities. Thus a claim of Rs. 1,00,000 was made against the Divisional Forest Officer. It was

averred that the Divisional Forest Officer, under the scheme for the preservation of wildlife, had let

loose the Bear and other protected wild animals in the Jungle and unfortunately killing of such

animals is also prohibited by the State Government. As a result of attack by the black Bear, the

respondent suffered grievous injuries and sustained 100% permanent disability. She has spent about

Rs. 50,000 on her medical treatment. In claiming damages, the respondent alleged that she suffered

due to the acts of omission and commission of the defendants.

The defendants on their part, denied liability for the damages, and for letting loose the black Bear.

They raised several objections to the petition, including one of jurisdiction. They further claimed that

Sec. 60 of the Wildlife [Protection ]Act, 1972, provides that no suit, prosecution or other legal

proceeding shall lie against any officer or employee of the Central Government or State Government

for anything which is done in good faith. Hence this suit is hit by the above section.

The Court while admitting the petition under the civil provision, held that claiming damages for the

injuries sustained as result of attack by a wild animal would not be an action for damages caused by

an act which has been done in good faith by the State or its officers/ employees under the Act.

Further the Court held that to succeed in claiming damages under the tortuous liability of the

defendant, the onus was heavily on the plaintiff show that damages, was sustained by her due to

some act of omission or commission of the defendants. The plaintiff had miserably failed to

discharge such onus. There is no provision under the Wild Life [ Protection] Act, 1972 for providing

reliefs to a victim, attacked by wild animals. Decision of the State Government, to grant gratuitous

relief to victims, was a welcome sign of a democratic Government, but providing for such reliefs

would not tantamount to admission of liability by the State, for tort, or death or injuries by wild

animals.