K- 108 ENVIRONMENTAL LAW by Mr. Ajay Tiwari 108 ENVIRONMENTAL LAW by Mr. Ajay Tiwari.pdf · Q.1(c) Brief note on environmental protection and Public Trust Doctrine? Ans. Environmental

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.


26

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.


27

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;


28

(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


29

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.


30

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;


31

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.


32

(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.


33

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.


34

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


35

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


36

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


37

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 –


38

(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


39

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;


40

(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


41

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


42

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


43

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


44

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.


45

(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.


46

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


47

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,


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


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.


50

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


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


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


53

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


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


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


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.


57

(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


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


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


59

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


60

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.


61

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


62

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


63

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….‖


64

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


65

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.‖


66

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


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.


68

(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


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.


70

(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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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


72

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


73

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


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


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


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


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.?


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.

Documents

K- 108 ENVIRONMENTAL LAW by Mr. Ajay Tiwari 108 ENVIRONMENTAL LAW by Mr. Ajay Tiwari.pdf · Q.1(c) Brief note on environmental protection and Public Trust Doctrine? Ans. Environmental