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JANHIT COLLEGE OF LAW
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JANHIT COLLEGE OF LAW, GREATER NOIDA ( JANHIT GROUP
OF INSTITUTIONS)
(Affiliated to CCS University, Meerut & Approved by Bar council of India,
New Delhi)
(www.janhitlaw.in)
(An e-initiative by JCL)
NOTES ON Code : 108
Subject : Environmental Law
Class : LL.B. 1st Yr
By: Ajay Kumar Tiwari (Assistant Professor)
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Q.1(a) What is Environment? What are the objectives of Environment
Protection? Name the components and types on an environment.
Ans. Literally, the expression ―environment‖ connotes surroundings. The
environment contains air, water, food and sunlight etc. According to Section
2(a) of the Indian Environment (Protection) Act, 1986, the term ―
”Environment” includes water, air and land and human beings, other living
creatures, plants, micro-organism and property.
Objectives of Environment Protection The main objectives of the
Environment Protection are as follows :-
1. Controlled, restricted and mindful use and exploitation of natural resources ;
2. Maintenance and protection of environmental quality;
3. Protecting and balancing of the eco-system;
4. Achievement of substantial development;
5. Environment awareness among the people;
6. Working out the pollution problems;
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7. Environmental education and training; and
8. Punishment of the polluter.
What are the components of “Environment”? ―Environment‖ consists of
three kinds of components, namely :-
1. Non-living component or Abiotic component;
2. Living component or Biotic component;
3. Energy component.
Types of Environment Broadly, environment can be divided into the following
two types, namely:-
1. Natural Environment
2. Man-made Environment
Q.1(b) What are the factors responsible for environmental pollution ? Give
the classification of environmental pollution and its remedies available.
Ans. Factors responsible for environmental pollution – There are some
important factors
responsible for causing environmental pollution. These are –
1. Population growth;
2. Indiscriminate use of technology;
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3. Uncontrolled use of pollutants;
4. Unmindful exploitation of natural sources;
5. Industrial development
6. Discharge of pollutants into air and water;
7. Improper disposal excreted and waste water;
8. Inadequate management of solid waste;
9. Failure to control noise pollution;
10. Failure in food protection;
11. Failure to check emission of ionizing radiation;
12. Inappropriate management of sound and heat etc.
Environmental pollution and its classification Environment pollution can
broadly be classified into –
(1) Natural pollution; and
(2) Man-made pollution;
1. Natural pollution – Under the category of pollution flood, earthquake,
cyclone and drought are placed. These natural calamities are capable to cause
havoc that may be disastrous.
2. Man-made pollution – This class of environment pollution is caused mainly
due to unmindful human activities. Today, modern industries produce industrial
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wastes and toxic gases, which are hazardous to the environment. Also reckless
use of forest wealth is causing deforestation. It has immediate adverse effects on
soils and land which increases the frequency of flood and drought.
Environmental Pollution and its Remedies In the context of India, the
remedies for environmental pollution is of the followings kinds :-
1. Civil remedies;
2. Criminal remedies;
3. Other remedies.
1. Civil Remedies – The civil remedies for environmental pollution is available
in the nature of compensation or damages to the victim and cost to recover the
disturbed ecological balance or the environment.
2. Criminal Remedies – These remedies are available by way of penal
action/punishments.
3. Other Remedies – The other remedies for environmental pollution are
available as under :-
(i) Remedies under Constitutional Law;
(ii) Remedies under Law of Torts;
(iii) Riparian remedies;
(iv) Remedies under the Indian Penal Code, 1860 and Code of Criminal
Procedure, 1973;
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(v) Remedies under Insurance Laws;
(vi) Remedies under Labour laws;
(vii) Remedies under Wild Life (Protection) Act, 1972
(viii) Remedies under Forests (Conservation) Act, 1980
Q.1(c) Brief note on environmental protection and Public Trust Doctrine?
Ans. Environmental Protection and “Public Trust Doctrine”
M.C. Mehta vs. Kamal Nath (Spam Motel Case)
According to the Supreme Court ―Doctrine of Public Trust‖ which existed in
Roman and English law, has been incorporated in Indian law. As per this
doctrine, natural resources are held by the ―State as ―Trustee‖ of the public.
However, natural resources can be disposed of only in a manner that is
consistent with the nature of such a trust. A high decree of the judicial scrutiny
is laid down on any action of the Government that attempts to restrict the use of
natural resources freely available for the public.
The court further said that to properly scrutinize such actions of the
Government, the Courts are required to make distinction between Government‘s
general obligation to act for the public benefit, and the special obligation which
it may have as a trustee of certain public resources. Under the doctrine of public
trust certain restrictions are imposed upon the Government. In other words,
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when the public is deprived of the benefit of natural resources unilaterally the
said doctrine would apply.
Q.2 What are the main constitutional provisions regarding Environment
Protection, comment, citing the cases.
Ans. Though there is no specific constitutional provision to protect the
environment in general, but the new Part IV-A which consists of only one
Article 51-A was incorporated by the Constitution (42nd Amendment) Act,
1976. Article 51-A (g) states that “it shall be the duty of every citizen of India
to protect and improve the natural environment including forests, lakes, rivers
and wild life, and to have compassion for living creature.” It is to be noted that
duties incorporated under Article 51-A (g) of the Constitution are statutory
duties and shall be enforceable by law. The relevant law will provide penalties
to be imposed for failure to fulfil those duties and obligations. The Apex Court
in M.C. Mehta (2) v. Union of India, has held that under Article 51- A(g) it is
the duty of the Central Government to introduce compulsory teaching of lessons
at least for one hour in a week on protection and improvement of natural
environment in all the educational institutions of the country. The Apex Court
directed the Central Government to get text books written on that subject and
distribute them to the educational institutions free of cost. It is to be noted that
these duties are the duties of the individual citizens. These fundamental duties
are not enforceable by means of writ of mandamus.
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Environmental protection and Directive Principles of State Policy:
(Article 48-A deals with the protection and improvement of forests and
wild life.)
However, it reads as under. ―48-A. Protection and improvement of
environment and safeguarding of forests and wild life – The State shall
endeavour to protect and improve the environment and to safeguard the forests
and wild life of the country‖. Thus, it requires that State to take measures to
protect and improve the environment and to safeguard the wild life and forests
of the country.
The Apex Court in M.C. Mehta v. Union of India, while relying on Article 48-A
of the Constitution directed to the Central Government and the State
Governments and various local bodies and Boards under various statutes to take
appropriate measures for the prevention and control of pollution of water.
Public Interest Litigation and Environment Protection – In view of Article
32 of the Constitution whenever there is a violation of a fundamental right, any
person can approach the Court for an appropriate remedy. Now it can be said
that public interest litigation would be maintainable before the High Court
under Article 226 and before the Supreme Court under Article 32, pertaining to
the matter of environment protection. In the area of water or air pollution or
conservation of forests or cruelty to animal, public interest litigation entertain
able is as judicial approach in India has shown the way for this purpose. In
M.C.Mehta v. Union of India, the victims of the gas leak were heard and
successful in claiming damages by the means of public interest litigation. An
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another important case of public interest litigation is M.C. Mehta v.Union of
India, where the Supreme Court issued direction for the enforcement of the
Statutory provisions pertaining to the prevention of nuisance caused by the
pollution of the river Ganga. The Supreme Court passed direction to the Nagar
Mahapalika, Kanpur to comply with the statutory obligations under the Water
(Prevention and Control of Pollution) Act, 1974. The public interest petition in
M.C. Mehta v. Union of India, the Supreme Court directed the Central
Government to take steps to spread information and knowledge relating to
environment through audio-visual media. The Supreme Court also passed
direction to introduce environment as a compulsory subject in educational
institutions. It is true that excessive utilization, deflation and detercoation of
land are sufficient to cause ecological imbalance by human acts. In recent past
the mechanism of public interest litigation has seen considerable growth in the
field of environmental protection. Now most of the environmental cases are
being filed by the public spirited citizens through the public interest litigations.
Q.3 Discuss the role of judiciary in controlling the Environmental
Pollution. Explain with the help of decided cases. Or
Explain Judicial Activism with Environmental pollution.
Ans. Judicial Activism and Environmental- The judiciary has been assigned
the role as a guardian of the Constitution. They are not expected to sit as a mute
spectator and close their eyes and be uncaring for the problems faced by the
society. The powers of the Supreme Court for the protection of the
Constitutional right,human rights and environmental rights of the
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people/citizens are of the widest amplitude. It is to be noted that the judicial
activism relating to protection of environment is laudable. Several
pronouncements have been made by the Supreme Court for this purpose. In
view of several judicial decisions of the Supreme Court now the right to get free
air, water, etc. have been included in the guarantee ensued in Article 21 of the
Constitution. The Supreme Court in Re, Bhavani River V. Sakthi Sugars Ltd.,
took the serious view in respect of the discharge of objectionable effluents from
distillery in river adjoining areas. It is to be noted that way back in 1980 the
Supreme Court in Municipal Council, Ratlam v. Vardhichand, has held that
the human rights calling for unpolluted environment must be followed and
implemented irrespective of financial constraints. The public nuisance must be
checked at war footing as the public nuisance because of pollutants is a
challenge to the social justice component of the rule of law. During 1998 the
Supreme Court issued directions in M.C. Mehta v. Union of India, for
checking vehicular pollution in capital Delhi. In this case the Court passed the
following directions:-
1. Restriction on plying of commercial vehicles including taxis which are 15
years old, by 2001 October 1998.
2. Restriction on plying of goods vehicles during the day time shall be strictly
enforced by 15th August, 1998.
3. Expansion by pre-mixed oil dispensers (Petrol and 2T oil) shall be
undertaken by 31st December, 1998.
4. Ban on supply of loose 2T oils at petrol stations.
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However, in 1999 the Supreme Court modified the aforesaid directions on the
submission of the Transport Commission that banning all commercial vehicles
which were more than 15 years old by October 12, 1998 would result into great
hardship to the general public and also to owners of such vehicle. That steps
would be taken to ease pollution assumed by the Administration. While
modifying its earlier order the Supreme Court direction the
commercial vehicles/transport vehicles which are more than 20 years old shall
be phased out and shall not be permitted to ply in the National Capital Territory,
Delhi after 2nd October, 1998.
Article 21 of the Constitution and Environment – The link between the
human life and environment is inherently unbreakable and if the attempt is
made to delink directly or indirectly it would be dangerous not only to human
beings but also all creatures. The Supreme Court repeatedly made it clear that
right to life under Article 21 of the Constitution includes right to pollution free
air and water. The Supreme Court observed that where anything endangers or in
pairs that quality of life in violation of law, a citizen has right to have resource
to Article 32, i.e., constitutional remedy before the Supreme Court for removing
the pollution of air or water which may be detrimental to the quality of the life.
Therefore, under Article 226 of the constitution a writ would be maintainable if
there is violation of the environmental right in respect of pollution free air or
water.
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“Polluter Pays Principle”. – As a ―precautionary principle‖ the Supreme
Court in Vellore Citizens Welfare Forum v. Union of India, propounded the
principles, ―the Precautionary principle‖ that is, ―polluter pays‖ and this
principle has become the law of land as by virtue of Article 141 of the
Constitution, law declared by the Supreme Court is binding on all
courts/agencies, including the State.
In M.C.Mehta v. Union of India, the Supreme Court has held that the direction
to convert all buses operating in Delhi to C.N.G. fuel mode has been given for
protecting and safeguarding the health of the citizens and their right to life and it
is covered and protected by Article 21 of the Constitution, this is being a
fundamental right under Part III or the Constitution. Therefore, it would
override the provisions of every statute including the Motor Vehicles Act. In
this case the Court has made clear that norms laid-down under the Motor
Vehicles Act are in addition to and not in derogation of the requirements of the
Environment (Protection) Act, 1986.
The Supreme Court in Intellectuals Forum v. State of A.P., has held that the
Court decision cannot be based solely upon investments made in the projects
which are vulnerable to environmental hazards. The Court observed that
criticism of the environmental activists that the said projects are not condemned
by the Court as judges are carried away by money spent on such projects, is
basless. The Supreme Court said that in several cases the Court issued
directions and ensured their enforcement by nothing short of the emolition or
restoration of status quo-ante, without being convinced by the fact that crores of
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rupees were already spent on development projects. The Supreme Court in
Murli S. Deora v. Union of India, has held that fundamental rights guaranteed
under Article 21, inter alia, provides that none shall be deprived of his life
without due process of law. In the instant case the Supreme Court while,
considering the adverse effect of smoking in public places, passed the order
banning the smoking in public places till statutory provision is made and
implemented by legislative enactment. The Supreme Court has prohibited the
smoking in public places and issued directions to the Central Government, State
Governments including the Union Territories to take appropriate measure to
ensure that prohibition of smoking in public places is implemented.
Q. 4 What are the remedies under Cr. P.C, relating to protection of
Environment? (Sec – 133 Cr. P.C.)
Ans. The Code of Criminal Procedure, 1973 (Section 133 to Section 143) deals
with the subject concerning environment protection. Section 133 of the Code of
Criminal Procedure, 1973 deals with cases of public nuisance, wherein the
Magistrate is empowered to pass conditional order for removal of public
nuisance. There are certain categories of cases which can be redressed under
Section 233 of the Code, these are the following:-
1. The unlawful nuisance or obstruction to any way, river or channel, lawfully
used by the public or to a public place.
2. The construction of any building or the disposal of any substance as is likely
to occasion explosion or conflagration.
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3. The conduct of any trade or occupation, or the keeping of any goods or
merchandise, injurious to health or physical comfort of the community.
4. An unfenced tank, well or excavation near a public way or place.
5. A building, tent and structure, or a tree as is likely to fall and cause injury to
persons.
6. A dangerous animal requiring destruction, confinement or disposal.
By virtue of Section 133 of the Code of Criminal Procedure, 1973 the
Magistrate is empowered to exercise its powers on receipt of a police report or
other report if any of the circumstances is existing as cited above. Before
passing a conditional order; a Magistrate is bound to take evidence, because the
proceedings are entirely exparte. But, the Magistrate is bound to pass speaking
order under this section. It is to be noted, that the proceedings under Section
133 of the Code are summary in nature and it cannot be kept pending for a long
time. It is well settled legal position that the proceedings under Section 133 of
the Code should be taken in case of emergency where the public shall be put to
great inconvenience and shall suffer an irreparable injury if the encroachment or
nuisance is not removed at once by adopting the summary procedure.
Ordinarily, Section 133 of the Code cannot be invoked where the obstruction or
nuisance has been in existence for a long period but there is no legal bar to
action being taken in such circumstances if there exists genuine emergency to
get encroachment or nuisance removed under Section 133 of the Code. In the
interest of justice and fair play it is required that while exercising power under
Section 133 of the Code, the Magistrate should examine the local people about
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physical discomfort or health hazard on account of ‗Khatal‘. However, failure
on the part of Magistrate to carry out such endeavour would make his order
illegal under Section133 of the Code.
Scope of Section 133.- The Apex Court had an occasion to consider the
scope and applicability of Section 133 of the Code of the Code of
Criminal Procedure, 1973 in case of Municipal Council, Ratlam v.
Vardhichand & others, according to the Court, where there existed a
public nuisance in a locality due to open drain, heaps of dirt, pits and
public excretions by human for want of lavatories and consequential
breeding of mosquitoes, the Court may require the municipality under
Section 133 of the Code and in view of Section 123 of the Municipalities
Act to abate the nuisance by taking affirmative action on a time bound
basis. When such an order was given, the Municipality cannot take the
plea that financial inability validity exonerated it from statutory liability.
The Apex Court further held that the Code of Criminal in their coffers,
even as human rights under Part III of the Constitution of India, 1950
have to be respected by the State regardless of budgetary provision.
Explanation added to Section 133 of the Code of Criminal Procedure,
1973 states that a ―public placeǁ‖ includes also property belonging to the
State, camping grounds and grounds left unoccupied for sanitary or
recreative purposes. It does not mean all places belonging to the
State/Government.
In Kachrulal Bhagirath Agrawal & others v. State of Maharashtra. The
Court clarified that Section 133 of Cr. P.C. does not deal with all
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potential nuisance but only applies when the nuisance is in existence.
Section 133 of the Code of Criminal Procedure, 1973 also deals with
occupations or trades which are in themselves injurious to health and has
nothing whatever to do with trades which in themselves are not harmful
but in course of which a public nuisance might be committed. It is duty of
the court to direct removal of obstruction within a specified time. The
provisions contained under Section 133 of the Code of Criminal
Procedure, 1973 do not take away the revisional jurisdiction of the High
Court.
Notification of order under Section 133. – According to Section 134(1)
of the Code of Criminal Procedure, 1973 the order passed under Section
133 of the said Code, if practicable, be served on the person against
whom it is made, in the manner provided for service of a summons.
However, if such order cannot be served, it shall be notified by
proclamation, published in such manner as the State Government may, by
rules, direct and a copy thereof shall be stuck up at such place or places
as may be fittest for conveying the information to such person.
Two alternatives are open to a person – In terms of Section 135 of the
Code of Criminal Procedure, 1973 there are two alternatives to a person
who is served with notice as provided under Section 134 of the said
Code. At first, that person may perform, within the time and in the
manner specified in the order or secondly, he may prefer to appear in
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terms of the order and show cause against it. Section 137 of the Code of
Criminal Procedure deals with the procedure where existence of public
right is denied.
Constitution of India, 1950 have to be respected by the State regardless of
budgetary provision. Explanation added to Section 133 of the Code of
Criminal Procedure, 1973 states that a ―public place‖ includes also
property belonging to the State, camping grounds and grounds left
unoccupied for sanitary or recreative purposes. It does not mean all
places belonging to the State/Government. In Kachrulal Bhagirath
Agrawal & others v. State of Maharashtra. The Court clarified that
Section 133 of Cr. P.C. does not deal with all potential nuisance but only
applies when the nuisance is in existence. Section 133 of the Code of
Criminal Procedure, 1973 also deals with occupations or trades which are
in themselves injurious to health and has nothing whatever to do with
trades which in themselves are not harmful but in course of which a
public nuisance might be committed. It is duty of the court to direct
removal of obstruction within a specified time. The provisions contained
under Section 133 of the Code of Criminal Procedure, 1973 do not take
away the revisional jurisdiction of the High Court.
The evidence adduced under Section 137 of the Code should be legally
admissible evidence. If the conditions laid down in Section 137 have
been complied with, the Magistrate cannot proceed further and must stay
the proceedings until the matter of existence of public right has been
adjudicated by a Court having jurisdiction. It is clear that the provision
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contained in Section 137 are mandatory in nature. The issue whether the
provisions of the Air Act, 1981 operate to impliedly repeal the provisions
of Section 133 of the Code of Criminal Procedure, 1973. It is submitted
that divergent view expressed by the High Court would show that the Air
Act, 1981 and Water Act, 1974 are special legislations to curb the
pollution menace while adopting relevant scientific approach through
legislations, whereas Section 133 of the Code which deals with the public
nuisance as am emergent measure while providing injunctive relief to the
victim. Section 138 of the Code of Criminal Procedure, 1973 provides the
Procedures where a person appears to show cause against the order. By
virtue of Section 139 of the Code the Magistrate may order to conduct
local investigation rather spot investigation and may examine the expert,
in other words Magistrate may seek expert‘s opinion while deciding the
matter of public nuisance/public right under the Code. A conditional
order made under Section 133 of the Code of Criminal Procedure cannot
be questioned by a civil suit, however there is no such ban in respect of
an absolute order Section 141 of the said Code deals with the procedure
on order being made absolute and consequences of disobedience. Section
142 of the Code makes provision to prevent imminent injury or danger of
a serious kind to the public. According to Section 143 of the Code of
Criminal Procedure, 1973 a District Magistrate or Sub-Divisional
Magistrate or any other Executive Magistrate empowered by the State
Government or the District Magistrate, may order any person not to
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repeat or continue a public nuisance, as defined in the Indian Penal Code,
or any special or local law.
The evidence adduced under Section 137 of the Code should be legally
admissible evidence. If the conditions laid down in Section 137 have
been complied with, the Magistrate cannot proceed further and must stay
the proceedings until the matter of existence of public right has been
adjudicated by a Court having jurisdiction. It is clear that the provision
contained in Section 137 are mandatory in nature. The issue whether the
provisions of the Air Act, 1981 operate to impliedly repeal the provisions
of Section 133 of the Code of Criminal Procedure, 1973. It is submitted
that divergent view expressed by the High Court would show that the Air
Act, 1981 and Water Act, 1974 are special legislations to curb the
pollution menace while adopting relevant scientific approach through
legislations, whereas Section 133 of the Code which deals with the public
nuisance as am emergent measure while providing injunctive relief to the
victim. Section 138 of the Code of Criminal Procedure, 1973 provides the
Procedures where a person appears to show cause against the order. By
virtue of Section 139 of the Code the Magistrate may order to conduct
local investigation rather spot investigation and may examine the expert,
in other words Magistrate may seek expert‘s opinion while deciding the
matter of public nuisance/public right under the Code. A conditional
order made under Section 133 of the Code of Criminal Procedure cannot
be questioned by a civil suit, however there is no such ban in respect of
an absolute order Section 141 of the said Code deals with the procedure
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on order being made absolute and consequences of disobedience. Section
142 of the Code makes provision to prevent imminent injury or danger of
a serious kind to the public. According to Section 143 of the Code of
Criminal Procedure, 1973 a District Magistrate or Sub-Divisional
Magistrate or any other Executive Magistrate empowered by the State
Government or the District Magistrate, may order any person not to
repeat or continue a public nuisance, as defined in the Indian Penal Code,
or any special or local law.
Q.5 What remedies are provided to compensate the victim under Torts?
Ans. According to Salmond ―A tort is a civil wrong for which the remedy in
common law is action for unliquidated damages, and which is not exclusively
the breach of a contract or the trust or the breach of the merely equitable
obligations. The Supreme Court observed that in such cases, compensation must
be co-related to the magnitude and financial capacity of the industry as such
exemplary damages/compensation must have a deterrent effect. It is settled
position that an injunction is a judicial process whereby a person who has
violated or is likely to violate the legal rights of another person, is restrained to
carry-out such acts. Under the law of tort the environmental pollutions cases can
be adjudicated on the following grounds-
(i) Nuisance;
(ii) Negligence;
(iii) Strict liability; and
(iv) Absolute liability.
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A nuisance is an unlawful interference with the plaintiff‘s use or enjoyment of
land. To obtain the favorable order from the Court the plaintiff must prove that
some injury to his enjoyment of property is interfered with, by the defendant.
Kinds of Nuisance- There are two types of nuisance. These are:-
1. Public Nuisance:
2. Private Nuisance.
1. Public Nuisance (Section 268 of I.P.C. , 1860 and Section 133 Cr.P.C.,
1973)
A public or common nuisance is an injury, damages or annoyance to the public
generally and an offence against public rights, safety and convenience. Any
nuisance is public which materially affects the reasonable comfort and
convenience of life of a class of subject.
The remedies for a public nuisance are:-
(i) A criminal prosecution for the offence of causing a public nuisance.
(ii) A criminal proceeding before a Magistrate for removing a public nuisance.
(iii) A civil action by the Advocate General or by two or more members of the
public with permission of the Court for a declaration, an injunction, or both.
2. Private nuisance- For an action for private nuisance the plaintiff may seek
injunctive relief as well as damages.
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Test to determine nuisance.- There are three essential ingredients of nuisance.
These are :-
1. Unlawful interference;
2. Interference with the use or enjoyment of land;
3. Damage
(II) Negligence To prevent environmental pollution, a common law action for
negligence may be initiated. In action for negligence the plaintiff is required to
show the following:-
(i) The defendant was under legal duty to take reasonable care to avoid damage
complained of;
(ii) There was breach of legal duty casts upon the defendant; and
(iii) The breach of duty caused the damage to the plaintiff.
(III) Strict Liability The rule of strict liability was propounded by the House of
Lords in Rylands V. Fletcher. This rule is that a person who, in the course of
non-natural use of his land is or is deemed to be, responsible for the
accumulation on it of anything likely to do harm, if it escapes, is liable for the
interference with the use of the land of another which results from the escape at
the thing from his land.
But,‖ strict liability‖ is subject to a number of exception that considerably
reduce the scope of its operation. These exceptions are-
(1) Natural use of thing;
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(2) Act of God; (natural disaster such as an earthquake or flood etc.);
(3) The act of a third party; (e.g. sabotage);
(4) The plaintiff‘s own fault;
(5) Consent of plaintiff;
(6) Mistake of plaintiff; and
(7) Statutory authority.
(iv) Absolute Liability
The concept of absolute liability is based on the principle of no fault liability. In
India the concept of absolute liability was originated from the Shriram Gas
Leak case. This case was the genesis of the environmentalist and Supreme
Court lawyer Mr. M.C. Mehta, who by mean of writ petition as a public interest
litigation sought the closure and shifting of Shriram‘s Caustice Chlorine and
Sulphuric acid plants which were located in a thickly populated part of Delhi. It
is submitted if industrial accident took place on account of dangerous or
hazardous activity, the enterprise involved in such activity is liable to
compensate the persons affected by such industrial accident. It is immaterial to
examine, who committed negligence. Vicarious Liability and Environment
The liability which arises because of one person‘s relationship to another is
called vicarious liability. Section 17 of the Environment (Protection) Act, 1986
deals with the offences committed by the Government department. This says if
the environmental offences are committed by the Government department the
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head of such department would be liable for the offence and he shall be deemed
guilty of that offence. However, he may plead that the offence was committed
without his knowledge or he exercised due diligence to prevent the commission
of offence and that offence is not attributable to any neglect on his part.
Q.6(a) What are Protected forests? How to regulate matters of protected
forests?
Ans. According to Sec.29 of the Indian Forest Act, 1927
Protected forests – (1) The State Government may, by notification in the
official Gazette, declare the provisions of this Chapter applicable to any forest-
land or waste-land which is not included in a reserved forest but which is the
property of Government, or over which the Government has proprietary rights,
or to the whole or any part of the forest-produced of which the Government is
entitled. (2) The forest-land and waste-land comprised in any such notification
shall be called a ―protected forest‖. (3) No such notification shall be made
unless the nature and extent of the rights of Government and of private persons
in or over the forest-land or waste-land comprised therein have been inquired
into and recorded at a survey or settlement, or in such other manner as the State
Government thinks sufficient. Every such record shall be presumed to be correct
until the contrary is proved: Provided that, if in the case of any forest-land or
waste-land, the State Government thinks that such inquiry and record the
necessary, but that they will occupy such length of time as in the meantime to
endanger the rights of Government, the State Government may, pending such
inquiry and record, declare such land to be a protected forest, but so as not to
abridge or affect any existing rights of individuals or communities. Possession
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could not pass to the Government by mere fact of publication of
notification – The Patna High Court in M/s Jetmal Bhojraj v. State of Bihar,
has held that under Section 29(2), the forest and waste lands are to be called
protected forest. There is no provision in Chapter IV for transfer of possession
over any property to the Government, Legally, therefore possession could not
pass to Government by mere fact of publication of notification. Section 30 deals
with the power to issue notification reserving trees, closing of forest for such
term, not exceeding 30 years of prohibit the querying of stone, of the burning of
lime or charcoal or collection/removal of forest produce in a protected forest.
Thus State government is fully competent to prohibit or regulate any such
activities in a
protected forests which are likely to damage or disturb the forest wealth.
Q.6(b) State the power of the Government to make rules for protected
forests.
Ans. Power to make rules for protected forests - Section 32 gives power to
the State Government to make rules to regulate the protected forests in the
following matters, namely :-
1. Collection, manufacture and removal of forest produce from the protected
forests.
2. Cutting, sawing, conversion and removal of trees and timber from the
protected forests.
3. Granting of licences for felling or removing of trees/timber from such forests.
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4. Payment for removal/collection of felling tress/timber.
5. Examinatioin of forest produce to be carried away.
6. Clearing and breaking up land in the protected forests.
7. Measures for forest fire.
8. Cutting of grass and pasturing of cattle in such forests.
9. Measures for protection and preservation of the elephants under the Elephants
‗Preservation Act, 1979.
10. Hunting, shooting, fishing, poisoning water and setting traps.
The Allahabad High Court in Dayashankar Singh v. Conservator of Forest,1
was held that the conservator of forest, who is a public authority acting on
behalf of the Government, is required to act in a reasonable manner. While
exercising his powers under the standing orders in matters relating to grant of
extension of period of licence, he cannot act arbitrarily at his own sweet will
like a private individual, instead he must act in conformity with the constitution
and the principles laid down in the standing orders in a manner which may
withstand the test of reasonableness. Any departure with the principle of reason
or equality would vitiate the order.
Q.7 a) Mention the constitution of National Board under Sec-5A of Wild
Life Protection Act, 1972? b) What are the functions of the National
Board? c) Give the duties of Wild Life Advisory Board.
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Ans.(a)Section 5(2) of the Wild Life (Protection) Act, 1972 gives power to the
concerned authority to delegate his powers to any of his subordinate officers.
According to Section 5-A(I) of the Act, the Prime Minister and Minister in-
charge of Forests and Wild Life shall be the Chairperson, Vice-chairperson of
the National Board for Wild Life respectively and other members shall be such
as provided in the said section. However, they are ex-officio members of the
Board. Section 5-A(3) makes it clear that members, except ‗ex-officio‘
members shall be entitled to receive such allowances on account of performance
of the duties as provided therein. The office of a member of the National Board
for Wild Life shall Board for Wild Life shall not be deemed to be office of
profit. Section 5-B makes provisions for constitution of the Standing Committee
of the National Board and this Committee shall perform such functions as may
be prescribed by the National Board for Wild Life.
(b) Function of the National Board –(1) It shall be the duty of the National
Board to promote the conservation and development of wild life and forests by
such measures as it thinks fit.
(2) Without prejudice to the generality of the foregoing provision, the measures
referred to therein may provide for -
(a) framing policies and advising the Central Government and the State
Governments on the ways and means of promoting wild life conservation and
effectively controlling poaching and illegal trade of wild life and its products ;
(b) making recommendations on the setting up of the management of national
parks, sanctuaries and other protected areas and on matters relating to restriction
of activities in those areas;
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(c) preparing and publishing a status report at least once in two years on wild
life in the country.
(c) Section 6 (As Amended) imposes duty upon the State Government to
constitute the State Board for Wild Life within a period of six months from the
date of commencement of the Wild Life (Protection) Amendment Act, 2002.
The Chief Minister of the State and in case of Union territories, the
Administrator shall be the Chairperson of the State Board for Wild Life, the
Minister in-charge of Forests and Wild Life shall be the Vice-Chairperson and
other members of the State Board shall be ex-officio.
Q.8 Explain the rules to regulate Environment Pollution under
Environment Protection Act, 1986. Explain with decided cases.
Ans. Section 6 of the Environment (Protection) Act, 1986 give specific powers
to the Central Government to make rules in respect of all or any of the matters
referred to in Section 3 specifically in respect of—
(i) The standards of quality of air, water or soil for various areas;
(ii) Limit of concentration of various environmental pollutants, including noise;
(iii) the procedure and safeguards for the handling of hazardous substances.
(iv) prohibition on handling of hazardous substances.
In V.Lakshmipathy v. State of Karnataka, the Karnataka High Court directed
the operation of industrial units in land earmarked as residential area in the
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development plan to be stopped which were being established in gross violation
of held that where due to human negligence the quality of air or environment
are threatened the Court would not hesitate to use its innovative powers within
its epistolary jurisdiction to enforce and safeguard the right to life and promote
public interest. Since the right to life inherent in Article 21 of the Constitution
of India contemplates qualitative life which is possible only in an environment
of quality. The Andhra Pradesh High Court in K.Purushottam Reddy &
Anolther v. Union of India, observed as under :-
(i) there cannot be any doubt whatsoever that possessing of hazardous substance
without taking adequate care and precaution would not only give rise to
ecological problem but may seriously affect the quality of potable water. In this
situation, strict compliance of the Rules would be the necessity of the day.
(ii) Having regard to the facts and circumstances of the present case particularly
in view of the fact that thousand of litres of such waste lubricant and recycled
for its reuse, it is necessary that all authorities including the A.P. State Pollution
Control Board must strictly comply with the provisions of the said rules. The
Court directs
accordingly. The Court further directs that in the event of any person who is
found to be unauthorized for handling such hazardous waste products and/or if
any person authorized there for violates any of the terms and conditions or
directions or any law operating in the field, the State Pollution Control Board
should take strict view of the matter and shall take steps for cancellation of their
authorization in terms of the statutory rules.
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Q.9 Mention the powers of Central Govt. to take measures to protect and
improve environment under Environment Protection Act, 1986.
Ans. Under Sec-3. Power of Central Government to take measures to protect
and improve environment – (1) Subject to the provisions of this Act, the Central
Government shall have the power to take all such measures as it deems
necessary or expedient for the purpose of protecting and improving the quality
of the environment and preventing, controlling and abating environmental
pollution. (2) In particular, and without prejudice to the generality of the
provisions of sub-section (1), such measures may include measures with respect
to all or any of the following matters, namely :-
(i) Co-ordination of action by the State Governments, officer and other
authorities-
(a) Under this Act, or the rules made there under ; or
(b) Under any other law for the time being in force which is relatable to the
objects of this act;
(ii) Planning and execution of a nation-wide programme for the prevention,
control and abatement of environmental pollution;
(iii) Laying down standards for the quality of environment in its various
aspects;
(iv) Laying down standards for emission or discharge of environmental
pollutants from various sources whatsoever;
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Provided that different standards for emission or discharge may be laid
down under this clause from different sources having regard to the quality
or composition of the emission or discharge of environmental pollutants
from each sources;
(v) Restriction of areas in which any industries, operations or processes or class
of industries, operations or processes or class of industries, operations or
processes shall not be carried out or shall be carried out subject to certain
safeguards;
(vi) Laying down procedures and safeguards for he prevention of accidents
which may cause environmental pollution and remedial measures for such
accidents;
(vii) Examination of such manufacturing processes, materials and substances as
are likely to cause environmental pollution;
(viii) Carrying out and sponsoring investigations and research relating to
problems of environmental pollution;
(ix) Inspection of any premises, plant, equipment, machinery, manufacturing or
other processes, materials or substances and giving, by order, or such directions
to such authorities, officers or persons as it may consider necessary to take steps
for the prevention, control and abatement of environmental pollution;
(x) Establishment or recognition of environmental laboratories and institutes to
carry out the functions entrusted to such environmental laboratories and
institutes under this Act.
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(xi) Collection and dissemination of information in respect of matters relating to
environmental pollution;
(xii) Preparation of manuals, codes of guides relating to the prevention, control
and abatement of environmental pollution;
(xiii) Preparation of manuals, codes or guides relating to the prevention, control
and abatement of environmental pollution;
(xiv) Such other matters as the Central Government deems necessary or
expedient for the purpose of securing the effective implementation of the
provisions of this Act.
(3) The Central Government may, if it considers it necessary or expedient so to
do for the purposes of this Act, by order, published in the Official Gazette,
constitute an authority or authorities by such name or names as may be
specified in the order for the purpose of exercising and performing such of the
powers and functions
(including the power to issue directions under Section 5) of the Central
Government under this Act and for taking measures with respect to such of the
matters referred to in sub-section (2) as may be mentioned in the order and
subject to the supervision and control of the Central Government and the
provisions of such order, such authority or authorities may exercise the powers
or perform the function or take the measures so mentioned in the order as if
such authority or authorities had been empowered by this Act to exercise those
powers or perform those functions or take such measures.
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Information films about environmental protection. –
In M.C.Mehta v. Union of India and others through a public interest
litigation under Article 32 of the Constitution of India. 1950 a petition was
filed seeking for issuing appropriate directions to cinema and exhibition halls to
exhibit slides containing information and messages on environment free of cost,
for spreading information about environment in national and regional languages
and for broadcasting about it on the All India Radio and on the National
Channel (Television) in regular and short term programme. The petitioner also
prayed that the environment should be made a compulsory subject in the
schools and colleges in a graded system for a general awareness in respect of
environment. The Supreme Court observed as follows :- ―we are in a
democratic polity where dissemination of information is the foundation of the
system. Keeping the citizens informed is an obligation of the Government. It is
equally the responsibility of the society to adequately educate every component
of it so that the social level is kept up. We, therefore accept in principle, the
prayers made by the petitioner‖. The writ petition was disposed of by making
the following directions –
1. The Central Government shall issue appropriate directions to the State
Governments and Union Territories to invariably enforce as a condition of
licences of all cinema halls, touring cinemas and video parlours to exhibit free
of cost at least two slides messages on environment in each show undertaken by
them. The Ministry of Environment should, within two months from now, come
out with appropriate slide material.
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2. The Ministry of Information and Broadcasting of the Government of India
should, without delay, start producing of information films of short duration as
is being done now on various aspects of environment pollution bringing out
benefits for society on the environment being protected and the hazards
involved if the environment is not protected.
Regarding the publicity about environmental protection, the Supreme Court
clarified that :- ―We do not want to project an impression that we are
authorities on the subject but we would suggest to the programme controlling
authorities of the Doordarshan and All India Radio to take proper steps to make
interesting programmes and broadcast the same on the radio and exhibit the
same on the television.‖ It is submitted that in democratic set up it is desirable
on the part of Government to discharge its constitutional obligation by
practicing dissemination of information regarding environment protection.
Taj Trapezium Pollution case – The Supreme Court in M.C. Mehta v. Union
of India and Others, ordered the closure of brick kilns within 20 Km. radius
distance of Taj Mahal with Cettain directions. This case is popularly known as
―Taj Trapezium Pollution‖.
The Hon‘ble Supreme Court directed as under :- ―
(1) All licensed brick kilns within 20 km. radial distance of Taj Mahal and other
significant monuments in Taj Trapezium and Bharatpur Bird Sanctuary shall be
closed and stop operating w.e.f. 15-8-1996. We direct the State of U.P. to render
all possible assistance to the licensed brick kiln-owners in the process of
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relocation beyond Taj Trapezium, if the owners so desire. The closure order is,
however, unconditional.
(2) We direct the District Magistrate and the Superintendent of Police
concerned to close all unlicensed and unauthorized brick kilns operating in the
Taj Trapezium with immediate effect. The U.P.Pollution Control Board (Board)
shall file a compliance report within two months.
(3) No new licences shall be issued for the establishment of brick kilns within
20 km. radial distance from Taj Mahal, other monuments in Taj Trapezium and
Bharatpur Bird Sanctuary.
The victims of pollution are entitled to compensation –The Patna High Court
in Rajiv Ranjan Singh alies Lallan Singh v. State of Bihar and Others has
held that where it comes to light that any person has contacted any ailment the
cause of which can be directly related to the effluent discharge of the distillery,
the company shall have to bear all expenses of his treatment and the question of
awarding suitable compensation to the victim may also be considered.
Badkal Lake and Suraj Kund – Mining activity to be banned –
In M.C. Mehta v. Union of India,4 the explosives were used for mining
operation on Badkal Lake, Suraj Kund and also Aravalli hills. Evidently there
was unscientific mining activity resulting in materials lying haphazardly. It was
held by the Supreme Court that since Haryana Government banned mining
operation within a radius of 5 Kms. Of Badkal Lake, Suraj Kund the objections
against recommendations of stoppage of mining operations filed by the mining
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operators was not sustainable, therefore, stoppage of mining activity was wholly
justified.
Q.10 Discuss the powers given to State Board under Water Prevention and
control of Pollution Act, 1974 ?
Ans. The functions of a State Board shall be –
(a) to plan a comprehensive programme for the prevention, control or abatement
of pollution of streams and wells in the State and to secure the execution
thereof;
(b) to advise the State Government on any matter concerning the prevention,
control or abatement of water pollution;
(c) to collect and disseminate information relating to water pollution and the
prevention, control or abatement thereof;
(d) to encourage, conduct and participate in investigations and research relating
to problems of water pollution and prevention, control or abatement of water
pollution ;
(e) to collaborate with the Central Board in organizing the training of persons
engaged or to be engaged in programmes relating to prevention, control or
abatement of water pollution and to organize mass education programmes
relating thereto;
(f) to inspect sewage or trade effluents, works and plants for the treatment of
sewage and trade effluents and to review plans, specifications or other data
relating to plants set up for the treatment of water, works for the purification
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thereof and the system of the disposal of sewage or trade affluents or in
connection with the grant of any consent as required by this Act;
(g) to lay down, modify or annual effluent standards for the sewage and trade
eeluents and for the quality of receiving waters (not being water in an inter-
State stream) resulting from the discharge of effluents and to classify waters of
the State;
(h) to evolve economical and reliable methods of treatment of sewage and trade
effluents, having regard to the peculiar conditions of soils, climate and water
resources of different regions and more especially the prevailing flow
characteristics of water in streams and wells which render it impossible to attain
even the minimum degree of dilution;
(i) to evolve methods of utilization of sewage and suitable trade effluents in
agriculture;
(j) to evolve efficient methods of disposal of sewage and trade effluents on land,
as are necessary on account of the predominant conditions of scant stream flows
that do not provide for major part of the year the minimum degree of dilution;
(k) to lay down standards of treatment of sewage and trade effluents to be
discharge into any particular stream taking into account the minimum fair
weather dilution available in that stream and the tolerance limits of pollution
permissible in the water of the stream, after the discharge of such effluents;
(l) to make, vary or revoke any order –
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(i) for the prevention, control or abatement of discharges of waste into streans ir
wells;‘
(ii) requiring any person concerned to construct new systems for the disposal of
sewage and trade effluents or to modify, alter or extend any such existing
system or to adopt such remedial measures as are necessary to prevent control
or abate water pollution;
(m) to lay down effluent standards to be complied with by persons while
causing discharge or sewage or sullage or both and to lay down, modify or
annual effluent standards for the sewage and trade effluents;
(n) to advise the State Government with respect to the location of any industry
the carrying on of which is likely to pollute a stream or well;
(o) To perform such other functions as may be prescribed or as may, from time
to time, be entrusted to it by the Central Board or the State Government.
(2) The Board may establish or recognize a laboratory or laboratories to enable
the Board to perform its functions under this section efficiently, including the
analysis of samples of water from any stream or well or of samples of any
sewage or trade effluents.
In M.C. Mehta v.Union of India, the Supreme Court has held that tanneries
discharge effluents in Ganga not setting up primary treatment plant in spite of
being asked for several years, not appearing in spite of notice, cannot be
permitted to be in existence for adverse effect on public at large. According to
Section 18 of the Water (Prevention and control of Pollution) Act, 1974 in the
performance of its functions. A State Board shall be bound by directions of the
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State Government, Subject to such contingencies as are enumerated in Section
18(2) and 18(3) of the said Act. Section 19 of the Act provides that if the State
Government is of the opinion that the provisions of the Act need not apply to
the entire State, it may restrict the application of the Act to such area or areas or
areas as may be declared as water pollution, prevention and control area or
areas. Further, that the State Government has power to alter any area or define a
new area. In terms of Section 20 of the Water (Prevention and Control of
Pollution) Act, 1974 the State Board or any of its authorized officer may make
surveys, take measurement and obtain information for the purpose specified in
sub-section (1) of Section 20 (2) or Section 20 (3) is an offense punishable
under Section 41 (1) of the said Act. Section 21 of the Act empowers a State
Board or its authorized officer to take sample of water for analysis and specify
the procedure after the sample has been taken for analysis.
Q.11(a) Discuss the Constitution of State Board under Air Prevention and
control of Pollution Act 1981. Ans. A State Board constituted under this Act
shall consist of the following members, namely :-
(a) A Chairman, being a person having special knowledge or environmental
protection, to be nominated by the State Government :
Provided that the Chairman may be either whole-time or part time as the State
Government may think fit;
(b) Such number of officials, not exceeding five, as the State Government may
think fit, to be nominated by the State Government to represent that
Government;
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(c) Such number of persons, not exceeding five, as the State Government may
think fit, to be nominated by the State Government from amongst the members
of the local authorities functioning within the State;
(d) Such number of non-officials, not exceeding three, as the State Government
may think fit, to be nominated by the State Government to represent the
interests of agriculture, fishery or industry or trade or labour or any other
interest, which, in the opinion of that Government, ought to be represented.
(e) Two persons to represent the companies or corporations owned, controlled
or managed by the State Government, to be nominated by the Government;
(f) A full-time member-secretary having such qualifications, knowledge and
experience of scientific, engineering or management aspects of pollution control
as may be prescribed, to be appointed by the State Government :
Provided that the State Government shall ensure that not less than two of the
members are persons having special knowledge or practical experience in
respect of matters relating to the improvement of the quality of air or the
prevention, control or abatement of air pollution. Section 5 of the Act deals with
the constitution of State Board. Sub-section (1) of Section 5 States that where
the State Board has not been constituted under the Water (Prevention and
Control of Pollution) Act 1974. State Pollution Control Board shall be
constituted under this section, Sub –section (2) of Section 5 lays down the
composition of a State Pollution Control Board. However, sub-section (3) of
Section 47 makes it clear that the State Pollution Control Board constituted
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under the present Act shall be regarded as a corporate body like a company
under the Companies Act, 1956, having perpetual succession, common seal and
liable to sue or be sued on its own name.
Q.11(b) Specify the terms & conditions of service of members and
disqualification of person to be member of State Board.
Ans. A member of a State Board constituted under this Act, other than the
member-secretary, shall be deemed to have vacated his seat, if he is absent
without reason, sufficient in the opinion of the State Board, from three
consecutive meetings of the State Board or where he is nominated under clause
© of sub-section (2) of section 5, he ceases to be a member of the local
authority and such vacation of seat shall, in either case, take effect from such
date as the State Government may, by notification in the Official Gazette,
specify. A casual vacancy in a State Board constituted under this Act shall be
filled by a fresh nomination and the person nominated to fill the vacancy shall
hold office only for the remainder of the term for which the member whose
place he takes was nominated. The other terms and conditions of service of the
Chairman and other members (except the member-secretary) of a State Board
constituted under this Act shall be such as may be prescribed. As provided
under Section 7(1) of the Act except for the member secretary, the term of
office of members of the Board shall be for the period of three years from the
date of nomination as notified in the Official Gazette. According to Section 7
(2) of the Act, the office of member shall come to an end automatically if he
happens to hold the office under the State Government or in the company or
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corporation owned, controlled and managed by the State Government. Section
7(3) makes provision regarding resignation of a member except the member
secretary. A member can submit his resignation in writing under his hand
addressed to the Chairman of the State Board, however, in case of Chairman‘s
resignation, he has to address his resignation to the State Government. Section
7(6) declares that a member of a State Board shall be eligible for re-nomination.
Section 8 of the Act lays down the conditions and circumstances for
disqualifications of member, if he has been :-
- Adjudged insolvent ; or
- of unsound mind, declared by the court;
- convicted by the Court, which in opinion of the State Government, involves
moral turpitude; or
- Convicted under the Air(Prevention and Control of Pollution) Act ,1981;
- Directly or indirectly interested in the affairs of the company;
- If found to be working against the interest of general public continuance in
office at large.
Q.12 What are the authorities under Wild Life Protection Act 1972 ?
Ans. Authorities to be appointed or constituted under the Act In accordance
with provisions of Section 3 the Central Government may appoint a Director for
the purposes of the Act and he/she will be called the Director of Wild Life
Preservation. The Central Government may also appoint such other officers and
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employees with the view to assist the Director in performance of his duties and
exercise of his powers under the Act. Under Section 4 of the State Government
is empowered to appoint a Chief Wild Life Warden, Wild Life Wardens and
also Honorary Wild Life Wardens and other officers and employees for the
purpose of the Act. The Bombay High Court in Viniyog Parivar Trust v. Union
of India, has held that for seeing the Prevention of Cruelty to Animals Act,
1960, Transport of Animals Rules, 1978, Prevention of Cruelty (Capture of
Animals Act, 1960, Transport of Animals Rules 1972 and inhuman and cruel
treatment the directions issued by the Apex Court from time to time, a
committee he appointed for implementation of aforesaid Acts, Rules and
directions. Section 5(1) of the Wild Life (Protection) Act provides that the
Director of Wild Life Preservation, with the previous approval of the Central
Government may delegate his powers to any subordinate officer to him,
However, such delegation of powers must be fmade in writing. Section 5(2) of
the Wild Life ( Protection) Act, 1972 gives power to the concerned authority to
delegate his powers to any of his subordinate officers. According to Section 5-
A(1) of the Act, the Prime Minister and Minister in-charge of Forests and Wild
Life shall be the Chairperson, Vice-Chairperson of the National Board for Wild
Life respectively and other members shall be such as provided in the said
section. However, they are ex-officio members of the Board. Section 5-A(3)
makes it clear that members, except ‗ex-officio‘ members shall be entitled to
receive such allowances on account of performance of the duties as provided
therein. The office of a member of the Section 5-B makes provisions for
constitution of the Standing Committee of the national Board and this
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committee shall perform such functions as may be prescribed by the National
Board for Wild Life. Section 6 (As Amended) imposes duty upon the State
Government to constitute the State Board for Wild Life within a period of six
months from the date of commencement of the Wild Life (Protection)
Amendment Act, 2002. The Chief Minister of the State and in case of Union
Territories, the Administrator shall be the Chairperson of the State Board for
Wild Life. However, the Minister in-charge of Forests and Wild Life shall be
the Vice-Chairperson and other members of the State Board shall be ex-officio.
Q.13 Discuss the powers of Central Government to supersede the Central
Board and Joint Boards under the water (Prevention and Control of
Pollution) Act, 1974.
Ans. Sec-61 Power of Central Government to supersede the Central Board and Joint Boards – (1) If at any time the Central Government is of opinion – (a) that the Central Board or any Joint Board has persistently made default in the performance of the functions imposed on it by or under this Act; or
(b) that circumstances exist which render it necessary in the public interest so to do. The Central Government may, be notification in the Official Gazette, supersede the Central Board or such Joint Board, as the case may be, for such period, not exceeding one year, as may be specified in the notification : Provided that before issuing a notification under this sub-section for the reasons mentioned in clause (a), the Central Government shall give a reasonable opportunity to the Central Government shall give a reasonable opportunity to Central Board or such Joint Board, as the case may be, to show cause why it should not be superseded and shall consider the explanations and objections, if any, of the Central Board or such Joint Board, as the case may be.
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(2) Upon the publication of a notification under sub-section (1) superseding the Central Board or any Joint Board – (a) all the members shall, as from the date of supersession vacate their offices as such ; (b) all the powers, functions and duties which may, by or under this Act, be exercised, performed or discharged by the Central Board or such Joint Board shall, until the Central Board or the Joint Board, as the case may be, in reconstituted under sub-section (3) be exercised, performed or discharged by such person or persons as the Central Government may direct; (c) all property owned or controlled by the Central Board or such Joint Board shall, until the Central Board or the Joint Board, as the case may be, is reconstituted under sub-section (3) vest in the Central Government. (3) On the expiration of the period of supersession specified in the notification issued under sub-section (1), the Central Government may – (a) extend the period of supersession for such further term, not exceeding six months, as it may consider necessary; or
(b) reconstitute the Central Board or the Joint Board, as the case may be, by such case any person who vacated his office under clause (a) of sub-section (2) shall not be deemed disqualified for nomination or appointment: Provided that the Central Government may at any time before the expiration of the period of supersession, whether originally specified under sub-section (1) or as extended under this sub-section, take action under clause (b) of this sub-section. COMMENTS Under Section 61 of the Water (Prevention and Control of Pollution) Act, 1974 the Central Government may :- (a) supersede the Central Board or Joint Board;
(b) extend the period of supersession; or
(c) reconstitute the Central Board or the Joint Board :However, upon the supersession of the Central Board or a Joint Board, the consequences specified in Section 61 (2) shall ensue. The full Bench of Rajasthan High Court in Ram Chandra Swami v. State of Rajasthan, has held that the Government‘s action must not be arbitrary or capricious but must be based on some principle which meets the test of reason and relevance.
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Q.14 Write short notes on :- (a) Noise is a nuisance in Penal Code and a health hazard in Environmental Laws. Comment.? Ans. Noise is a slow agent of death. It causes hearing impairment and mental imbalance besides affecting psychological health of human being. ―Noise pollution‖ means defilement of atmosphere due to sound. In other words disturbing the atmosphere by means of sound. Recent studies reveal that a prolonged exposure to noise levels above 90 decibels can cause permanent deafness. Researchers are of opinion that if the present noise levels continue unfettered, future generations may be born deaf and dumb. The causes of noise pollution may be divided in two categories, namely:
1. Natural noise pollution;
2. Man-made noise pollution.
1. Natural noise pollution – In this category of noise pollution, air,
seas, volcanoes, rivers and exchanging voices of living organs.
2. Man-made noise pollution – This category of noise pollution is
caused by machines, automobiles, trains, aeroplanes, social and
religious celebrations, speeches, construction works and other modern
equipments.
There are three kinds of noise pollution. These are as under:-
1. Industrial Noise Pollution
2. Urban Noise Pollution
3. Rural Noise Polllution
1. Industrial noise Pollution.- The noise pollution produced due to
industrial activities is called industrial noise pollution. In recent
decades enormous industrialization has taken place which created
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noise pollution from industrial sources. Most of the Indian cities are
suffering from industrial noise pollution.
2. Urban noise pollution.- The noise pollution created by
automobiles cultural programmes, festivals, advertisement and
loudspeakers are the most significant urban noise pollution.
3. Rural noise pollution.- The noise pollution created due to use of
pumping sets, flour mills and religious gathering in rural areas is
called rural noise pollution. However, rural noise pollution generates
least hazard in comparison with the industrial and urban noise
pollution.
The Allahabad High Court in Radhey Shyam v. Guru Prasad, issues
injunction against the defendant, restraining him from running a flour-
mill on the ground of causing additional noise in an already noisy
area. Constitution of India: Noise pollution The Division Bench of
Calcutta High Court in Maulana Mufti Syed M.d Noorur Rehman
Barkati and Others v. State of West Bengal and Others,2 observed that
use of microphones is of recent origin and accordingly it could not be
said that the use of microphones and loudspeakers are essential and
integral part of the religion. Microphone is a gift of technological age,
its adverse effect is well felt all over the world. It is not only a source
of pollution but it is also a source which causes several health hazards.
In the instant case the Division Bench of Calcutta High Court has held
that the restrictions on the use of microphone as imposed by the Court,
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48
Central Pollution Control Board and the State Pollution Control Board
have to be carried out by all concerned at any cost. Simply because no
such formal restriction has been imposed has been imposed in other
parts of India and the fundamental rights under Article 19(1)(a) are
enforced strictly in the State of West Bengal and it is not enforced in
other parts of India that does not amount to any case of discrimination.
The Court futherheld that use of loudspeakers and microphones in
―Azaan‖ (A call for player at mosque) is not essential and integral
part of any religion, hence there is no violation of right to religion
guaranteed under Article 25 of the Constitution of India. The Apex
Court in Church of God (full Gospel) in India v. K.K.R. Majestic
Colony Welfare Association & others,3 has held that no religion
prescribes that prayers should be performed by disturbing the peace of
others. The question involved in this case was whether in a country
having multiple religious communities a religious community could
claim its right to add to noise pollution on the ground of religion.
The Court expressed the view that undisputably no religion prescribes
that prayers should be performed by using microphones/loudspeakers
or by beating of drums. In a civilized society in the name of religion,
activities which disturb old or inform persons, students or children
having their sleep in early hours or during day time or other persons
carrying on other activities cannot be permitted. It should not be
forgotten that young babies in the neighbourhood are also entitled to
enjoy their natural right of sleeping in a peaceful atmosphere. A
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49
student preparing for his examination is entitled to concentrate on his
studies without there being any unnecessary disturbance by
neighborhood. Such natural rights ar also required to be honoured.
The Apex Court while referring to some observations made by the
Constitution Bench of this Court qua right under Article 25(i.e.
Freedom of Conscience and free profession, practice and propagation
of religion), Article 26 (i.e. Freedom to manage religious affairs) of
the Constitution in Acharya Maharajshri NarendraPrasad Ji anand
Prasad Ji Maharaj v. The State of Gujarat, reiterated that no right in
an organized society can be absolute. Enjoyment of one‘s right must
be consistent with the enjoyment of rights also by others. Wherein a
free play of social forces is not possible to bring about a voluntary
harmony, the State has to step into and set right the imbalance
between competing interest. The Court restated that a particular
fundamental right cannot exist in isolation in a watertight
compartment. One Fundamental Right of a person may have to co-
exist in harmony with the exercise of another Fundamental Right by
others also with reasonable and valid exercise of power by the State in
the light of Directive Principles in the interest of social Welfare as a
whole. Even, no function should be carried out in violation of the Act
and the Rules. It is submitted that the use of loudspeakers/public
address system is neither a fundamental right nor a Constitutional
right.
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In P.A. Jacob v. Superintendent of Police, Kotttayam, the Kerala
High Court had an occasion to consider whether the Constitution of
India guarantees a right to use loudspeakers or other such devices or
whether use of such device flows from the right to freedom of speech
and expression of guaranteed under. Article 19 (1) (a) of the
Constitution of India. It was held by the Kerala High Court that the
right to speech implies the right to silence. It also implies freedom not
to listen, and not to be forced to listen. It is clear that the right to
speech is subordinate to peace and public order. The Court was of the
view that a person can refuse to read a printed material or can switch
off his radio or a television set. But, these choices are not present in
case of use of loudspeakers by some one else. A sound from
loudspeakers cannot be prevented from reaching to him. But, he could
not be compelled to hear what he wished not to hear. The Court
further held that no one has right to trespass on the mind or ear of
another and to commit auricular or visual aggression. The Court made
it clear that the use of loudspeaker may be incidental to the exercise of
the Right of Freedom of Speech and Expression, but its use is not a
matter of right, or part of that right.
Similarly, Calcutta High Court in Om Biramgama Religious Society
v. State, has held that freedom of speech and expression guaranteed
under Article 19 (1) (a) of the Constitution of India essentially
includes freedom not to listen and/or to remain silent. One cannot be
permitted to exercise his fundamental right at the cost of others health
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51
or well being. In the present case the sub-divisional officer rightly
directed the petitioner/society not to use any microphone while
performing the pooja and other religious activities.
Recently, the Supreme Court in Forum for the Prevention of
Environment and Sound Pollution v. Union of India has held that
prohibition on use of loudspeaker or public system between 10 p.m. to
12 midnight is not invalid or unconstitutional.
Thus, Rule 5(2) of the Noise Pollution (Regulation and Control)
rules, 2000 (As amended in 2002) provided that loudspeaker or a
public address system shall not be used at night between 10 p.m. and 6
a.m. except in closed premises, it is constitutional and not invalid. It is
submitted that it is the duty of the State to preserve and protect the
freedom of speech and expression, but without causing invasion to
others as the peoples‘ right cannot be forcibly suspended by any
person.
In S.K. Ikram Sheikh Israil v. State of Maharashtra, where the
appellants carrying out manufacturing of brass utensils was causing
noise pollution affecting the schools and the people of the area. As a
result notice to the appellant was issued by the Superintendent of
police directing appellants to stop their activities/business. Before the
Supreme Court, appellants submitted that they should be given an
opportunity toreduce the noise level and take remedial measures. The
Supreme Court ruled that in these circumstances, appellants were
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52
directed to submit a concrete proposal before the authorities concerned
stating how they would stick to the norms.
(b) Global Warming and Depletion of ozone layer in atmosphere.
Ans. Defilement of air is called air pollution. The gases released or
generated by industrial activities are absorbed in the atmosphere. Even
the harmful ultraviolet radiations are also absorbed in the stratosphere
by the vital ozone layer. This is sufficient to damage the terrestrial
life. Increase in green houses, namely, carbon-di-oxide, Methane and
Sulphur-di-oxide etc. and release of 65,000 compounds into the
atmosphere is badly affecting the quality of air and also composition
of the atmosphere. As a result it leads to global warming. The
scientists had reported that earth‘s surface temperature has risen by 0.7
celsius since 1950. On the other hand, ozone layer which protects
earth from the ultraviolet radiation, is rapidly thinning particularly the
protective ozone shield in the northern hemisphere. According to
scientists – the damaging trend of ozone layer and increase of global
temperature may result in the eruption of cancerous and tropical
diseases, melting of glacier, flood in low lying coastal areas,
submergence of islands (Tsumani disaster), and raising of sea levels. It
is true that the problem of environmental pollution is global and it is
not confined to particular part of the world. The environmental
pollution is global and it is not confined to particular part of the world.
The environmental pollution is capable of moving from the continent
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to another continent and irresponsible disposal of radioactive wastes
may result in the considerable destruction of life and property.
According to the world Health Organisation (W.H.O.). an estimated
77,000 deaths are recorded annually in the Asia-Pacific region due to
health problems arising from global warming. The report stated that
we have now reached a critical stage in which global warming has
already seriously affected lives and health and this problem will pose
an even greater threat to mankind in coming decades if we fail to act
now.‖ As quoted by Mr. Shigeru Omi, W.H.O. regional director for
the Western Pacific.
( c) Acid Rain
The formation of acid rain mainly caused with the emissions of
Sulphur-di-oxide and nitrogen oxide. The emissions of these
hazardous gases are caused by industrial operations, automobiles and
burning of oil, wood etc. These gases combined with water vapours in
clouds form nitric acid and sulphuric acid. When precipitation falls
from the clouds, it is highly acidic in nature. Thus, acid rain is a
combination of gases, i.e., Carbon-di-oxide, Sulphur-di-oxide.
Nitrogen oxide and Chlorine with water vapours which get converted
in carbonic acid, Sulphuric acid, Nitric acid and Hydro-chloric acid in
presence of sunlight. It is clear that these acids are capable to damage
soils, vegetation and surface water. These acid pollutants can travel
thousand of kilometers by means of air causing erosion and
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54
desertification. Acid rain is detrimental to human health but also
capable to bring changes in marble, limestone, mortar and metals etc.
(d) Municipal Council, Ratlam vs. Vardhichand, A.I.R. 1980 1622.
Brief facts – In the present case the residents of a locality within
limits of Ratlam Municipality tormented by stench and public
excretion by nearby slum dwellers moved the Magistrate under
Section 133 of Cr.P.C. to require Municipality to do its duty towards
the members of the public. The Magistrate gave directions to
Municipality to draft a plan within six months for removing nuisance.
In appeal, Sessions Court reversed the order. The High Court
approved the order of Magistrate. In further appeal, the Supreme
Court also affirmed the Magistrate‘s order. Held – Where there
existed a public nuisance in a locality due to open drains, heaps of dirt,
pits and public excretion by humans for want of lavatories and
consequential breeding of mosquitoes, the Court could require the
Municipality under Section 133 of the Cr.PC. and in view of Section
123 of the Municipalities Act to abate the nuisance by taking
affirmative action on a time bound basis. When such order was given
the Municipality could not take the plea that notwithstanding the
public nuisance financial inability validly exonerated it from statutory
liability.
Code operates against statutory body – The Criminal Procedure
Code operates against statutory bodies and others regardless of the
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55
cash in their coffers, even as human rights under Part III of the
Constitution have to be respected by the State regardless of budgetary
provision. Likewise, Section 123 of the Municipalities Act has no
saving clause when the Municipal Council is penniless. Otherwise a
profligate statutory body or pachydermic governmental agency may
legally defy duties under the flaw by urging in self defence a self
created bankruptcy or perverted expenditure budget. That cannot be.
Section 133 of Cr.P.C. is categoric and has a mandatory import.
Although reads discretionary judicial discretion when facts for its
exercise are presented. Therefore, when the Magistrate has, before
him, information and evidence, which disclose the existence of a
public nuisance and on the materials placed, he considers that such
unlawful obstruction or nuisance should be removed from any public
place which may be lawfully used by the public, he shall act. Thus, his
judicial power shall, passing through the procedural barrel, fire upon
the obstruction or nuisance, triggered by the jurisdictional facts. The
Magistrate‘s responsibility under Section 133 Cr.P.C. is to order
removal of such nuisance within a time to be fixed in the order. This is
a public duty implicit in the public power to be exercised on behalf of
the public and pursuant to a public proceeding. Failure to comply with
the direction will be visited with a punishment contemplated by
Section 188 I.P.C. Therefore, the Municipal Commissioner or other
executive authority is bound by the order under Section 133 Cr.P.C.
and shall obey the direction, because disobedience, if it causes
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56
obstruction or annoyance or injury to any person lawfully pursuing
their employment, shall be punished with simple imprisonment or fine
as prescribed in the Section. The offence is aggravated if the
disobedience tends to cause danger to human health or safety The
imperative tone of Section 133 Cr.PC. read with the punitive temper
of Section 188 I.P.C., make the prohibitory act a mandatory duty.
Public nuisance must be checked – Public nuisance, because of
pollutants being discharged by big factories to the detriment of the
poorer sections, is a challenge to the social justice component of the
rule of law. Likewise, the grievous failure of local authorities to
provide the basic amenity of public conveniences drivers the
miserable slum-dwellers to ease in the streets, on the sly for a time and
openly thereafter, because under Nature‘s pressure, bashfulness
becomes a luxuary and dignity a difficult art. A responsible municipal
council constituted for the precise purpose of preserving public health
and providing better finances cannot run away from its principal duty
by pleading financial inability. Decency and dignity are non-
negotiable facets of human rights and are a first charge on local self
governing bodies. Similarly, providing drainage system-not pompous
and attractive, but in working condition and sufficient to meet the
needs of the people, cannot be evaded if the municipality is to justify
its existence.
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(e) Sachidanand Pandey Vs. State of West Bengal A.I.R. 1987
S.C.1109 In this case the scope of judicial review in environmental
cases was explained by the Apex Court.
Brief facts – Where a group of citizens challenged the location of a
hotel on the ground that the construction of hotel would interfere with
the flight path of migatory birds. However, the construction of the
Calcutta Taj Hotel was delayed for six months while administrative
agencies and courts considered whether a proposed six-storey hotel
would impede the flight pattern of migatory birds. The land on which
the hotel was to be constructed formerly belonged to the Alipore
Zoological Garden and was put to important zoo related uses. The zoo
directors had withdrawn their objections to the hotel after the
government promised them adjacent lands and relocation grants, the
hoteliers agreed to reconstruct all displaced facilities on the adjacent
lands, at no expense to the zoo.
Scope of judicial review – The least that the Court may do is to
examine whether appropriate considerations are borne in mind and
irrelevancies excluded. In appropriate cases the Court may go further
but how much further must depend on the circumstances of the case.
The Court may always give necessary directions. However, the Court
will not attempt to nicely balance relevant considerations. When the
question involves the nice balancing of relevant considerations, the
Court may feel justified in resigning itself to acceptance of the
decision of the concerned authorities. The Supreme Court expressed
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58
the view that it is not merely another town planning case but a ringing
statement of the court‘s duty to protect the environment. Here the duly
authorized construction of medium-size five star hotel was alleged to
interfere with the flight path of migratory birds and the Court inquired
extensively into this question. If the migratory birds are worthy of the
court‘s attention, a ―fortiori‖ the Court‘s protection would extend to
environmental issue of more direct impact on human beings.
Held – Whenever a problem of ecology is brought before the Court,
the Court is bound to bear in mind Article 48-A of the Constitution
and Article 51-A(g)… When the Court is called upon to give effect to
the Directive principle and Fundamental duty, the Court is not to
shrug its shoulders and say that priorities are a matter of policy and so
it is a matter for the policy making authority. The least that the Court
may do is to examine whether appropriate considerations are borne in
mind and irrelevancies excluded. In appropriate cases, the Court may
go further, but how much further will depend on the circumstances of
the case. The Court may always give necessary directions. However,
Court will not attempt to nicely balance relevant considerations. When
the question involves the nice balancing of relevant considerations, the
Court may feel justified in resigning itself to acceptance of the
decision of the concerned authority.
Developmental allowed – Though the citizens of Indian cities are
facing environmental urban problems, however, the hotel project was
eventually permitted to proceed, not only because the hotelier had
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taken environmental values into account in fashioning the project but
also because there were obvious public benefit, viz – increased
revenues from tourism, and general upgrading and beautification of
the area.
Q.15 Mention the contribution of following cases in Protection of
Environment –
(a) M.C. Mehta Vs. Union of India AIR 1988 S.C. 1037
Ans. In M.C. Mehta v.. Union of India, where the public interest
litigation was filed before the Supreme Court by a social worker Mr.
M.C. Mehta seeking writ of mandamus against the respondents (7 to
9) restraining them from letting out the trade effluents into the river
ganga till such time they install necessary treatment plants for treating
the trade effluents in order to arrest the pollution of Ganga Water. In
the facts and circumstances the Supreme Court has held that :-
Water is the most important of the elements of nature. River valleys
are the cradles of civilization from the beginning of the world. Aryan
civilization grew around the towns and villages at the banks of river
Ganga.Varanasi which is one of the cities on the bank of the river
Ganga. Varanasi which is one of the cities on the bank of the river
Ganga is considered to be one of the oldest human settlements in the
world. It is the popular belief that the river Ganga is the purifier of all
but we are now led to situation that action must be taken to prevent
the pollution of the water of river Ganga since we have reached a
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stage that any further pollution of the river Ganga is likely to lead to a
catastrophe. There are also large industries on its banks. Sewage of the
towns and cities on the banks of the river and trade effluents of the
factories and other industries are continuously discharged into the
river. It is the complaint of the petitioner that neither the Government
nor the people are giving adequate attention to stop the pollution of
the river Ganga. Steps have therefore to be taken for the purpose of
protecting the cleanliness of the stream of the river Ganga which is in
fact the life sustainer of a large part of the northern India. The
proclamation adopted by the United Nations Conference on the
Human Environment which was held at Stockholm from 5th to 16th
June, 1972 and in which the Indian delegation led by the Prime
Minister of India took a leading role contemplates as follows :-
1. ―Man is both creature and moulder of his environment which
gives him physical sustenance and affords him the opportunity for
intellectual, moral, social and spiritual growth, Both the aspects of
man‘s environment, the natural and man made, are essential to his
well being and to the enjoyment of the basic human rights even to the
right of life itself.
2. The protection of the human environment is a major issue which
affects the well being of peoples and economic development
throughout the world is the urgent desire of the people of the whole
world and the duty of all Governments.
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3. Man has constantly to sum up experience and go on discovering,
inventing, growing and advancing. In our time man‘s capability to
transform his surroundings if used wisely can bring to all people the
benefits of development and the opportunity to improve the quality of
life. We see around growing evidence of manmade harms in many
regions of the earth.‖
The Supreme Court further held that:-
The river Ganga is the life of millions of people of India, Indian
culture and civilization has grown around it. The Ganga has always
been an integral part of the Nation‘s history, culture and environment.
It has been the part of sustenance for the millions of people who have
lived on it‘s the part of sustenance for the millions of people who have
lived on its banks from times immemorial. Millions of our people
along the Ganga drink its water on the faith and belief to purify
themselves to achieve the Moksha and release from the cycle of birth
and re-birth. It is tragic that the Ganga, which has since times
immemorial purified the people, is being polluted by man in numerous
ways by dumping of garbage, throwing the carcass of dead animals
and discharging of effluents. Scientific investigation and survey
reports have shown out the Ganga which serves 1/3rd of India‘s
population is polluted by Municipal sewage and the industrial
effluents discharged into the river. The pollution of the river Ganga is
affecting the life, health and ecology of Indo-Gangetic plain. The
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Government as well as Parliament both have taken a number of steps
to control the water pollution but nothing substantial has been
achieved. No law or authority can succeed in removing the pollution
unless the people co-operate. It is the sacred duty of all those who
reside and carry on business along the river to close the tanneries if
they have failed to take immediate steps required for the primary
treatment of industrial effluents.
(b ) M.C. Mehta Vs. Union of India, A.J.R. 1987 Sc 965
Ans. In this case the question arose because of leakage of Oleum Gas
from one of the units of the Shriram Food & Fertilizers Industries, as a
result of which several persons were affected. In the facts and
circumstances of the case and based upon the reports submitted by the
expert committees on the subject, the Supreme Court has held that -
―It is undoubtedly true that chlorine gas is dangerous to the life and
the health of the community and if it escapes either from the storage
tank or from the filled cylinders or from any other point in the course
of production, it is likely to affect the health and well being of the
workmen and the people living in the vicinity…., we have, with
considerable hesitation bordering almost on trepidations, reached the
conclusion that, pending consideration of the issue whether caustic
chlorine plant should be directed to be shifted and relocated yet to
some other place, the caustic chlorine plant should be allowed to
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restart by the management of the Shriram subject to certain stringent
conditions.‖ The Apex Court formulated the conditions as follows:-
1. ―Since it is clear from the affidavits and the reports of the various
expert committees that the management of the Shriram was negligent in
the operation, maintenance of the caustic chlorine plant and did not take
necessary measures for improving the design and quality of the plant and
equipment and installing adequate safety device and instruments with a
view to ensure the maximum safety of the workers and the community
living in the vicinity and it is only after writ petition no.12739 of 1985
was filed and all the glaring deficiencies were pointed out that the
management carried out various alterations and adopted various measures
in accordance with the recommendations made by Man Mohan Singh
Committee and Nilay Choudhary Committee, it is necessary that an
expert committee should be appointed by us which will monitor the
operation and maintenance of the plant and equipment and ensure the
implementation of the recommendations of these two committees….
2. ―One operator should be designated as personally responsible for
each safety device or measure and head of the caustic chlorine division
should be made individually responsible for the efficient operation of
such safety device or measure. If at any time during the examination by
the expert committee or inspection by the Inspectorate it is found that any
safety device or measure is inoperative or it is not totally functioning, the
head of the caustic chlorine plant as well as the operator in-charge of such
safety device or measure should be held personally responsible….‖
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3. ―The Chief Inspector of Factories or any Senior Inspector duly
nominated by…..will inspect the caustic chlorine plant at least once in a
week by paying surprise visit… and examine whether the
recommendations of Man Mohan Singh Committee and Nilay Choudhary
Committee are being complied with by the management…. Or whether
there are any defects or deficiencies in the operation and maintenance of
the caustic chlorine plant and in the safety devices or instruments
installed in the plant…‖
4. ―The Central Board will also depute a Senior Inspector to visit the
cautstic chlorine plant and the vanaspathy plant at least once in a week
without any prior notice to the management for the purpose of
ascertaining whether the effluent discharged from the vanaspathy plant as
also the terminal outlet complies with the limiting standards laid down in
the consent order issued under the Water Act and the particular matter
entitled by the stacks of the boilers in the power plant complies with the
standards laid down in the consent order issued under the Air Act and if
there is any default in complying with the relevant standard in either case,
such default should be brought to the notice of this Court and the Central
Board will be entitled to take such action as it thinks fit including
revocation of the relevant consent order.‖
5. ―The management of Shriram will give an undertaking…. That in
case there is any escape of any chlorine gas resulting in death or injury to
the workmen or to the people living in the vicinity, they will be
personally responsible for payment of compensation for such death or
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injury such undertaking shall be filed in Court within one week from
today.‖
6. ―There Shall be a committee to look after the safety arrangement in
the caustic plant if ther is any default or negligence in the observance of
the safety measures and maintenance and operation of the safety devices
and instruments to draw the attention of the Labour Commissioner….‖
7. ― There shall be placed in each department or section of the caustic
chlorine plant as also on the gate premises the detailed chart in English
and Hindi stating the effects of the chlorine gas on human body and
informing the workmen and people, as to what immediate treatment
should be taken in case they are affected by leakage of chlorine gas.‖
8. ―Every worker in the caustic plant should properly trained and
instructed in regard to the functioning of the specific plant equipment in
which` he is working and he should also be educated and informed as to
what precautions should be taken in case of leakage of chlorine gas to
control and contain such leakage.‖
9. ―Loud speakers shall be installed all around the factory premises for
giving timely warning and adequate instructions to the people residing in
the vicinity in case of leakage of chlorine gas.‖
10. ―The management should maintain proper vigilance as to the
wearing of helmets, gas masks or safety belts by the workmen in the
caustic chlorine plant while on work and then require medical check
up to ensure that the workers are in good health.‖
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11. ―The management of Shriram will deposit in this Court a sum of
Rs.20 lakhs by way of security for payment of compensation claims.‖
The Court pointed out ―that the caustic chlorine plant of Shriram is
not the only plant which is a hazardous industry. There are many other
plants in Delhi which are employing hazardous technology or are
engaged in manufacture of hazardous goods and if a proper and
adequate precaution are not taken, they too are likely to endanger the
life and health of the community. We would therefore suggest that a
High Power Authority should be set up by the Government of India in
consultation with the central Board for overseeing the functioning of
hazardous industries with a view to ensure that there are no defects or
deficiencies in the design, structure or quality of their plant and
machinery, there is no negligence in the maintenance and operation of
the plant and equipment and necessary safety devices and instruments
are installed and are in operation and proper and adequate safety
standards and procedures are strictly followed. This is a question
which needs serious attention by the Government of India and we
would request the Government of India to take necessary steps at the
earliest because the problem of the health and well being of the
community on account of the chemical and other hazardous industries
has become a pressing problem in modern industrial society. It is also
necessary to point out that when science and technology are
increasingly employed in producing goods and services calculated to
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67
improve the quality of life, there will be certain element of hazard and
risk inherent in the very users of science and technology and it is not
possible to totally eliminate such hazard and risk altogether‖. The
Supreme Court said,‖ we cannot possibly adopt a policy of not having
any chemical or any hazardous industry merely because they pose
hazard or risk to the community. If such policies were adopted it
would mean the end of progress and development. Such industries,
even if hazardous, have to set up since they are essential for economic
development and advancement of well being of people.‖ The Supreme
Court further said‖ we can only hope to reduce the element of hazard
or risk to the community by taking all necessary steps for locating the
industries in such a manner which would pose least risk or damage to
the community and ensure maximum safety requirement of such
industries and the Court would therefore like to impress upon
Government of India to evolve a national policy for location of
chemical and other hazardous industries in the areas where population
is scarce and there is little hazard or risk to the community and when
hazardous industries are located in such area every care must be taken
to see that much human habitation does not grow around them. There
should preferably be a green of 1to 5km. of width around such
hazardous industries.‖ Thus, upon leakage of Oleum gas from caustic
chlorine plant affecting several persons, the Supreme Court allowed it
to be restarted by the management subject to certain stringent
conditions that were specified as aforesaid.
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(c ) M.C. Mehta Vs. Union of India, A.I.R 1987 S.C. 382 Ans. M.C.
Mehta V. Union of India
Brief facts.- The relief claimed in the application under Article 32 of
the Constitution of India are for issuing appropriate directions to
cinema exhibition halls to exhibit slides containing information and
messages on environment free of cost; directions to spread
information relating to environment in national and regional languages
and for broadcast thereof on the television in regular and short term
programmes with a view to educate the people of India about their
social obligation in the matter of the upkeep of the environment in
proper shape and making them alive to their obligations not to act as
polluting agencies or factors. In this case the petitioner also sought
relief that environment should be made a compulsory subject in school
and colleges in a graded system so that there would be a general
growth of awareness.
Held.- Law is a regulator of human conduct but no law indeed
effectively work unless there is an element of acceptance by the
people in society. No law works out smoothly unless the interaction in
voluntary. In order that the human conduct may be in accordance with
the prescription of law It is necessary that there should be appropriate
awareness about what the law requires and there is an element of
acceptance that the requirement of law is grounded upon a philosophy
which should be followed. This would be possible only when steps are
taken in an adequate measure to make people aware of the
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69
indispensable necessity of their conduct being oriented in accordance
with the requirement of law. In a democratic polity dissemination of
information is the foundation of the system. Keeping the citizens
informed is an obligation of the Government. It is equally the
responsibility of society to adequately educate every component of it
so that the social level is kept up. The Supreme Court, therefore,
accepted on principle the prayers made by the petitioner for issuing
appropriate directions to cinema exhibition halls to exhibit slides
containing information relating to environment in national and
regional languages and for broadcast thereof on the All India Radio
and exposure thereof on the television in regular and short term
programmes with a view to educating the people of India about their
social obligations in the matter of the up keep of the environment in
proper shape and making them alive to their obligations not to act as
polluting agencies or factors and to make environment as a
compulsory subject in schools and colleges in a graded system so that
there would be a general growth of awareness and issued certain
directions to the Government, to that effect.
Directions – In the instant case the Apex Court passed directions to
the Central Government as follows :-
(i) Environmental pollution –Mass awareness through slide show,
Radio and T.V.
(ii) Education –Environment to be made compulsory subject in
schools and colleges.
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(iii) In democratic polity it is the obligation of the Central Government
for ensuring mass communication.
Court’s observation – The Court observed that there has been an
explosion of human population over the last 50 years. Life has become
competitive. Sense of Idealism in the living process has systematically
eroded. As a consequence of this the age old norms of good living are
no longer followed. The anxiety to do good to the needy or for the
society in general has died out, today, oblivious of the repercussions
of one‘s actions on society, every one is prepared to do whatever is
easy and convenient for his own purpose. In this backdrop if the laws
are to be enforced and the malaise of pollution has to be kept under
control and the environment has to be protected in an unpolluted State
it is necessary that people are of the vice of pollution and its evil
consequences.
(d) Municipal Council, Ratlam Vs. Vardichand, A.I.R. 1980 1622
Brief facts – In the present case the residents of a locality within
limits of Ratlam Municipality tormented by stench and public
excretion by nearby sum dwellers moved the Magistrate under Section
133 of Cr.P.C. to require municipality to do its duty towards the
members of the public. The Magistrate gave directions to Municipality
to draft a plan within six months for removing nuisance. In appeal,
Sessions Court reversed the order. The High Court approved the order
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71
of Magistrate. In further appeal, the Supreme Court also affirmed the
Magistrate‘s order.
Held – Where there existed a public nuisance in a locality due to open
drains, heaps of dirt, pits and public excretion by human for want of
lavatories and consequential breeding of mosquitoes, the Court could
require the Municipality under Section 133 of the Cr. P.C. and in view
of Section 123 of the Municipalities Act to abate the nuisance by
taking affirmative action on a time bound basis. When such order was
given the Municipality could not take the plea that notwithstanding the
public nuisance financial inability validly exonerated it from statutory
liability. Code operates against statutory body – The Criminal
Procedure Code operates against statutory bodies and other regardless
of the cash in their coffers, even ashuman rights under Part III of the
Constitution have to be respected by the State regardless of budgetary
provision. Likewise, Section 123 of the Municipalities Act has no
saving clause when the Municipal Council is penniless. Otherwise a
profligate statutory body or pachydermic governmental agency may
legally defy duties under the law by urging in self defence a self
created bankruptcy or perverted expenditure budget. That cannot be.
Section 133 of Cr.P.C.is categoric and has a mandatory import.
Although reads discretionary judicial discretion when facts for its
exercise are presented. Therefore, when the Magistrate has, before
him, information and evidence, which considers that such unlawful
obstruction or nuisance should be removed from any public place
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which may be lawfully used by the public, he shall act. Thus, his
judicial power shall, passing through the procedural barrel, fire upon
the obstruction or nuisance, triggered by the jurisdictional facts. The
magistrate‘s responsibility under Section 133 Cr.P.C. is to order
removal of such nuisance within a time to be fixed in the order. This is
a public duty implicit in the public proceeding. Failure to complay
with the direction will be visited with a punishment contemplated by
Section 188 I.P.C. Therefore, the Municipal Commissioner or other
executive authority is bound by the order under Section 133 Cr.P.C.
and shall obey the direction, because disobedience, if it causes
obstruction or annoyance or injury to any person lawfully pursuing
their employment, shall be punished with simple imprisonment or fine
as prescribed in the Section. The offence is aggravated if the
disobedience tends to cause danger to human health or safety. The
imperative tone of Section 133 Cr.P.C. read with the punitive temper
of Section 188 I.P.C. make the prohibitory act a mandatory duty.
Public nuisance must be checked- Public nuisance, because of
pollutants being discharged by big factories to the detriment of the
poorer sections, is a challenge to the social justice component of the
rule of law. Likewise, the grievous failure of local authorities to
provide the basic amenity of public conveniences drives miserable
slum-dwellers to ease in the streets, on the sly for a time and openly
thereafter, because under Nature‘s pressure, bashfulness becomes a
luxuary and dignity a difficult art. A responsible municipal council
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constituted for the precise purpose of preserving public health and
providing better finances cannot run away from its principal duty by
pleading financial inability. Decency and dignity are non-negotiable
facets of human rights and are a first charge on local self voerning
bodies,. Similarly, proving drainage system-not pompous and
attractive, but in working condition and sufficient to meet the needs of
the people, cannot be evaded if the municipality is to justify its
existence.
(e) Sachidanand Pandey Vs. State of West Bengal A.I.R. 1987
S.C.1109
In this case the scope of judicial review in environmental cases was
explained by the Apex Court.
Brief facts –Where a group of citizens challenged the location of a
hotel on the ground that the construction of hotel would interfere with
the flight path of migratory birds. However, the construction of the
Calcutta Taj Hotel was delayed for six months while administrative
agencies and courts considered whether a proposed six-storey hotel
would impede the flight pattern of migatory birds. The land on which
the hotel was to be constructed formerly belonged to the Alipore
Zoological Garden and was put to important zoo related uses. The zoo
directors had withdrawn their objections to the hotel after the
government promised them adjacent lands and relocation grants, the
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74
hoteliers agreed to reconstruct all displaced facilities on the adjacent
lands, at no expense to the zoo.
Scope of judicial review – The least that the court may do is to
examine whether appropriate considerations are borne I mind and
irrelevancies excluded. In appropriate cases the court may go further
but how much further must depend on the circumstances of the case.
The Court may always give necessary directions. However, the court
will not attempt to nicely balance relevant considerations. When the
question involves the nice balanceing of relevant considerations, the
Court may feel justified in resigning itself to acceptance of the
decision of the concerned authorities. The Supreme Court expressed
the view that it is not merely another town planning case but a ringing
statement of the court‘s duty to protect the environment. Here the duly
authorized construction fo medium-size five star hotel was alleged to
interfere with the flight path of migratory birds and the Court inquired
extensively into this question. If the migratory birds are worthy of the
court‘s attention, a ―fortiori‖ the court‘s protection would extend to
environmental issue of more direct impact on human beings.
Held – Whenever a problem of ecology is brought before the court,
the Court is bound to bear in mind Article 48-A of the Constitution
and Article 51-A(g) ….When the court is called upon to give effect to
the Directive Principle and Fundamental duty, the court is not to shrug
its shoulders and say that priorities are a matter of policy and so it is a
matter for the policy making authority. The least that the Court may
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75
do is to examine whether appropriate considerations are borne in mind
and irrelevancies excluded. In appropriate cases, the court may go
further, but how much further will depend on the circumstances of the
case. The Court may always give necessary directions. However,
Court will not attempt to nicely balance relevant considerations. When
the question involves the nice balancing of relevant considerations, the
Court may feel justified in resigning itself to acceptance of the
decision of the concerned authority.
Development allowed – Though the citizens of Indian cities are
facing environmental urban problems, however, the hotel project was
eventually permitted to proceed, not only because the hotelier had
taken environmental values into account in fashioning the project but
also because there were obvious public benefit, viz – increased
revenues from tourism, and general upgrading and beautification of
the area.
Important Questions
Q.1. What are the Main constitutional provision regarding Environment
Protection. Comment, citing the cases?
Q.2. What are Protectcal forest.? State the power of the Govt. to make rules for
Protected forest.?
Q.3. Explain the rules to regulate Environmental Pollution under
Environmental Protection Act- 1986.?
Q..4. Discuss the Powers given to State board under Water Prevention and
control of Pollution Act-1974.?
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76
Q.5. Discuss the role of Judiciary in controlling the environmental Pollution.
explain with the help of decided cases.?
Q.6. Discuss the role of judiciary in controlling the Environmental Pollution .
explain with the help of decided cases?
Q.7. Mention the constitution of nationals Board under Sec 5-A of wild life
protection Act- 1972.?
Q.8 Discuss the Constitution of State board under Air prevention and control of
Pollution Act 1981 also specify the terms and conditions of service of members
and disqualification of person to be member of state board
Q.9 Mention the powers of Central Govt. to take measures to protect and
improve environment under Environment Protection Act 1986
Q.10 Define ―Protected Forests‖. How did they differ from ―Reserved
Forests‖? What to regulate matters of protected forests?
Q.11 What are the authorities under Wild Life Protection Act 1972. Q,12
Discuss the powers of Central Govt. of Supersede the Central Board under
Water Prevention and Central Board 1974.
Q.13 Mention the contribution of following cases in Protection of Environment:
(a) M.C. Mehta vs Union of India 1985
(b) Municipality Council, Ratlam vs Vardhi Chand 1980.
(c) Rural Litigation and Entitlement Kendra Dehradun vs UP AIR 1985 SC 652.
(d) Andhra Pradesh vc Anupma Mineral 1995 Sec 117
(e) Union Carbide vs Union of India AIR 1990 SC 273
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Q.14 Short Notes:
(a) Protection of Atmospheres Zone Layer is a necessity.
(b) Noise is a Nuisance in Penal Code and a health hazard in Environmental
Laws comment.
(b) Acid Rain
Q.15 What are the constitutional provisions relating to protection of
Environment Elaborate your answer.
Q.16 What are the remedies under Sec 133 crpc relating to protection of
Environment.
Q.17 What remedies are provide to compensate the victim under Tort.
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