11

ENVIRONMENTAL LAW
P. Leelakrishnan*

I INTRODUCTION

DURING THE year 2000 courts in India adopted different methods for solving
the problems of protection and improvement of environment. Constitutional
issues were raised and decided; doctrines evolved in the past were explained;
practices usually adopted in environmental processes were examined; limits of
judicial review in the area were demarcated; contours of coastal zone
management were looked into; widening horizons of protection of forest and
wild life were probed into; and vexed questions of pollution control were
examined. Amidst all other cases, stands tall the Narmada dam case with
divided opinion among judges on the modes of environmental clearance. Perhaps
in the days to come these pronoucements would afford opportunities for more
juristic exercises and dialogues on development projects vis-a-vis rehabilitation
at a massive scale. As it ought to be, the idea of sustainable development is
very much in the minds of courts whenever they embark upon resolution of
controversial issues.

II ENVIRONMENT AND THE CONSTITUTION

Right to life—oustees and better amenities

A question similar to Olga Tellis[ case with more enviornmental concern
was before the Andhra Pradesh High Court in Kamal Nagar Welfare Association
v. Government of A.P.1 The Nandavanam project was designed to beautify Moosi
river bed area which had been encroached and occupied by slum dwellers. The
project was challenged as infringing rights to life, livelihood, shelter, property
and as contrary to directive principles contained in articles 39 and 46. The court
found that the project was not only just for beautification but also for several
other benefits such as creation of healthy, and unpolluted atmosphere, elimination
of traffic congestion and provision for lung space. The oustees, though they are
encroachers, were rehabilitated to a more healthier and congenial habitat with
better civic amenities. Aiming at larger interest of society at the cost of

* M.A.(Aligarh), M.L.(Kerala), Ph.D.(London); Advocate, High Court of Kerala. Formerly

Professor and Dean, Faculty of Law, Cochin University of Science and Technology, Cochin-
68202.
1 Olga Tellis v. Bombay Municipal Corpn., AIR 1986 SC 180.
2 AIR 2000 AP 132.

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inconvenience to a microscopic population, such a project would never be against

right to shelter declared as a basic human right under international human rights
covenant nor against fundamental rights under articles 14 and 21 of the
Constitution.
The wider boundaries of the concept of rehabilitation came to be examined
in Narmada Bachao Andolan v. Union of India? The Supreme Court held the
view that rehabilitation of oustees to a new location with better facilities than
which they had enjoyed in their original hamlets would not result in violation
of their fundamental right under article 21. On the other hand it would lead them
to a gradual assimilation in the social mainstream. Water is the basic need for
survival of human beings. It is a matter of grave concern if even after half a
century of freedom, water potentialities are not exploited and water is not made
available to the people. In Narmada the court held such situation as violating the
right to life under article 21 of the Constitution.

Constitutional mandate
In M.C.Mehta v. Kamal Nath,A the Supreme Court held that a notice for levy
of pollution fine issued in pursuance of one of their earlier orders was without
reference to any laws and hence was neither valid nor justified on the ground
of doing complete justice under article 142 of the Constitution. Article 142 with
all its potentialities cannot be used to build a new edifice by ignoring express
statutory provisions dealing with a subject and to achieve something indirectly
which cannot be achieved directly. However, the court ordered for a fresh notice
for the levy of exemplary damages from the respondents. Referring to
constitutional provisions in articles 21, 48A and 51A(g), the court made it clear
that "any disturbance of the basic environmental elements, namely, air, water,
and soil, which are necessary for life', would be hazardous to iife' within the
meaning of article 21 of the Constitution".
In M/s. Chandmari Tea Co. v. State of Assam5 the Gauhati High Court
sought strength from the directive principles and fundamental duties to justify
deprivation of privileges of persons and plantations for protecting the habitat of
wild animals. In Kenchappa v. State of Karnataka6 the Karnataka High Court
examined acquisition of lands surrounding a residential village for industry siting.
The court referred to articles 47, 48A and 51A(g) of the Constitution and held
that it was the duty of the state to protect the lands and the fundamental right
of the villagers to have access to the land reserved for greenbelt around their
village. In Nature Lovers Movement v. State of Kerala1 the Kerala High Court
laid emphasis on the constitutional concepts, such as, environmental protection,
agricultural production and excellence in all spheres of individual and collective
activity. Interestingly, this was done to make valid a seemingly eco-unfriendly
act, namely, rendering of titles to 'settlers' and 'encroachers' in forest.

3 AIR 2000 SC 3751 at 3787, 3804.

4 AIR 2000 SC 1997 at 2000, 2003.
5 AIR 2000 Gau 13.
6 AIR 2000 N O C 73 (Kant).
7 AIR 2000 Ker 131 at 143, 144.

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Religion and healthy environment

In Church of God (Full Gospel) in India v. K.K.R.M.C. Welfare Association?
the Supreme Court dealt with the problem of noise pollution vis-a-vis freedom
of religion under articles 25 and 26 of the Constitution. The appellants contended
that the higher noise level was not due to beating of the musical instruments at
their place of worship but was exclusively caused by vehicles plying outside.
Rejecting the contention, the court noted that every fundamental right should co-
exist in harmony with the exercise of another fundamental right. It is true that
in urban or industrial centres noise pollution may exceed permissible limits.
That is no ground for permitting noise pollution caused by voice amplifiers, loud
speakers or musical instruments.

Other rights and environment

The interest of the general public is not a ground on which the freedom of
speech, assembly and association can be restricted while it is a ground to restrict
freedom to move which may not have anything to do with noise pollution. In
Vijayananda Pathra v. District Magistrate9 the Orissa High Court noted this
constitutional position. The rights connected with advertisement, entertainment
shows, speeches of leaders and the assemblage of people on various occasions
such as marriage, fairs, exhibitions, street procession, pop songs and election
campaigns invariably go with loudspeakers. These rights are not subject to
reasonable restrictions on ground of noise. In the court's view this difficulty may
be eased by interpreting the expression 'decency' in article 19(2) on a future day
to justify ban on noise by loudspeakers. The court had no doubt that health is
a specific ground for prohibiting excessive noise by loudspeakers in places of
religious worship though the nexus between noise and health will have to be
judicially established.
Difficulties in interpreting article 19 does not seem to pose a problem now
as right to healthy environment is held to be already part of the right to life
under article 21. Any executive action taken or law passed is to be found valid
under this provision.

Federal set up—inter-state cooperation

Non-cooperation by a state is not desirable in a federal set up and the state
cannot be allowed to flout an award of inter-state tribunal especially when the
fundamental right of the people continues to be infringed due to shortage of
water. In the Narmada case70 the Supreme Court deprecated the lukewarm attitude
of the Madhya Pradesh (MP) government towards rehabilitation of oustees. The
willingness of the Gujarat government to rehabilitate oustees from MP does not
absolve the State of MP of their responsibility to comply with the award of the
inter-state tribunal. The MP government was for a dam height of 436 ft. only.
Oustees even at that height were not rehabilitated in MP. The court reminded

8 AIR 2000 SC 2773.

9 AIR 2000 Ori 70 at 74.
10 Supra note 3 at 3825, 3830.

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that in a federal set up like India whenever any such inter-state project is approved
and work undertaken the states involved have a responsibility to co-operate with
each other,

III PRECAUTIONARY PRINCIPLE AND BURDEN OF PROOF

Inadequacies of science has led to precautionary principle which in its turn

has led to the special principle of burden of proof in environmental cases.11 In
the Narmada case12 the Supreme Court made an effort to highlight these doctrines
further and held that they will 'apply in a case of polluting or other project or
industry where the extent of damage likely to be inflicted is not known'. The
court explained:13

When there is a state of uncertainty due to lack of data or material

about the extent of damage or pollution likely to be caused, then, in
order to maintain the ecology balance, the burden of proof that the said
balance will be maintained must necessarily be on the industry or the
unit which is likely to cause pollution. On the other hand where the
effect on ecology or environment of setting up of an industry is known,
what has to be seen is that if the environment is likely to suffer, then
what mitigating steps can be taken to off set the same. Merely because
there will be a change is no reason to presume that there will be
ecological disaster. It is when the effect of the project is known then the
principle of sustainable development would come into play which will
ensure that mitigative steps are and can be taken to preserve the
ecological balance. Sustainable development means what type or extent
of development can take place which can be sustained by nature/ ecology
with or without mitigation.

The Narmada case relates to construction of a dam, not a nuclear

establishment or a polluting industry. India has the experience of over 40 years
of construction of dams. Large dams may not be cost effective or may lead to
ecological or environmental degradation. On the contrary, there has been
ecological upgradation with construction of large dams. The impact on
environment is wellknown. Therefore, the court held that the proposition of
burden of proof is not applicable to a case like the construction of a dam where
the impact is ascertainable.14
It may be that a project with foreseeable impact and harm does not have to
prove anything if environmental safeguards are tailored into it. The position will
not be so if there were no environmental safeguards. The mere fact that the

11 AP Pollution Control Board v. M.VNayudu, AIR 1999 SC 812 and Vellore Citizen's Forum v.
Union of India, (1996) 5 SCC 647.
12 Supra note 3.
13 Id. at 3803, 3804.
14 Id. at 3804.

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Vol. XXXVI] Environmental Law 253

impact is well known does not ipso facto make the project environmentally
benign.

IV THE NARMADA DAM CASE

Problems
In Narmada Bachao Andolan v. Union of India,15 the petitioners challenged
implementation of Sardar Sarovar Project (SSP) on several grounds:
Environmental clearance was given without application of mind, the height of
the dam as planned at full reservoir level (FRL) of 455 feet would submerge a vast
region under water, oustees would not be suitably rehabilitated and the changes in
situation would lead to violation of fundamental rights under article 21.
In the battle for exploitation of Narmada water the award of the inter-state
water tribunal in 1979 was a turning point. The Supreme Court considered the
award as binding on all three states of Gujarat, Maharashtra and Madhya Pradesh.
The court emphasized the dire need of the nation to augment water supply in the
following words:16

To feed the increasing population, more food grain is required and

effort has to be made to provide safe drinking water, which, at present,
is a distant reality for most of the population specially in the rural areas.
Keeping in view the need to augment water supply, it is necessary that
water storage capacities have to be increased adequately in order to
ward off the difficulties in the event of monsoon failure as well as to
meet the demand during dry season. It is estimated that by the year
2050 the country needs to create storage of at least 600 billion cubic
meter against the existing storage of 174 billion cubic meter.

Environmental clearance
It is in Narmada that the Supreme Court for the first time went into the
requisites of environmental clearance though in a few cases in the past the court
had asked an expert agency or committee to study the ins and outs of a project.
What are the essentials of an environmental impact assessment (EIA)? Can it be
done on modes other than set out by administrative instructions or regulations
framed under law?

Majority opinion
Before adverting to what the majority judges held on the question of
environmental clearance, it may be mentioned that the United States is one of
the countries where EIA is subjected to a hard look in judicial review. The
National Environmental Policy Act, 1969 (NEPA) makes it necessary to have an
EIA before a major federal project having significant impact on human
environment is accepted for implementation. There were occasions when the

15 Supra note 3.
16 Id. at 3786.

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U.S. Supreme Court stopped construction of a work on the ground that the project
did not follow NEPA requirements. In the Snail Darter case,17 the court relied on
the provisions of the Endangered Species Act and stopped construction of a dam
feared to cause extermination of a particular species of fish living in the river.
The majority judgement in Narmada held that U.S. decisions were not yet
applicable because Indian laws are not modelled on the U. S. pattern. EIA under
a legal framework was introduced only in 1994 when the EIA notification was
formulated and issued under EPA. This notification is clearly prospective and is
not applicable to the clearance of 1987 as till then there was no statutory obligation
for assessment and clearance was essentially administrative. Endorsing the
clearance, the court observed:18

There are different facets of environment and if in respect of a few of

them adequate data was not available it does not mean that the decision
taken to grant environmental clearance is vitiated. The clearance required
further studies-to be undertaken and we are satisfied that this has been
and is being done Care for environment is an on-going process and
the system in place would ensure that ameliorative steps are taken to
counter the adverse effect, if any, on the environment with the
construction of the dam.

The bureaucratic model of environmental clearance that existed in India at

that time had one essential requirement. The Ministry of Environment and Forest
(MoEF) had to satisfy itself of the details given by the sponsors of a project. The
court noted that when the Prime Minister gave clearance to SSP there were
abundant materials-response of the Gujarat Government to the check list, techno-
economic appraisal by the Central Water Commission, independent studies by
M.S.University, favourable opinion from the Ministry of Water Resources on
FRL height and approval by the environmental appraisal committee of the
Department of Environment of the project in principle. However, it was a fact
that the environmental appraisal committee had asked for collection of further
data.19 The Prime Minister's secretariat recommended clearance with conditions.
Setting up of a monitoring agency was one of the main conditions. Monitoring
had to be done on rehabilitation, catchment area treatment, compensatory
afforestation and command area development. In the light of these facts, the
majority rejected the contention that environmental clearance was given without
application of mind. A conscious decision was taken. The government was aware
that more studies and data were to be collected. Clearance was given with the
direction to constitute the Narmada Management Authority which had to
implement environment management plans pari passu with engineering and
other works.20

17 437 US 153; 57 L Ed 2d 117.

18 Supra note 3 at 3804, 3805.
19 Id. at 3789.
20 Id. at 3795 .

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Vol. XXXVI] Environmental Law 255

The court examined the events that happened after clearance to find out
whether the conditions were fulfilled. It found that impoundment was much less
than the catchment area treatment. Compensatory afforestation was almost
complete. In the court's view construction of dam would result in more regulated
and perennial flow into the river with an overall beneficial impact. Until major
work was completed, there was no question of adverse impact including the
fishing activity. Efforts were made to re-site important monuments. With the
construction of dam, water availability and soil moisture would increase and this
will support varieties of plants and animals and reduce the alleged impacts on
health. The MoEF had not abdicated its responsibility. The Narmada Control
Authority had to consider all recommendations of the environmental sub-group.
In case of difference of opinion the matter was to be referred to a review
committee in which Minister of Environment is a member. The majority was of
opinion that there could not have been a more effective mechanism than the
arrangement.

The dissent
On environmental clearance the dissenting judge had an entirely different
view. Even in 1987 it was found necessary by the Government of India to
rigorously assess the environmental impact of river valley projects. Moreover,
the order issuing environmental clearance had sought for details from project
authorities on several matters such as rehabilitation, catchment area treatment,
compensatory afforestation, command area development and survey on flora
and fauna. The condition that the rehabilitation plans were required to be "so
drawn as to be completed ahead of reservoir filling" showed clearly that
before water was impounded in the reservoir, catchment area treatment and
rehabilitation programmes would be completed. The fact that Prime Minister
gave clearance did not make any difference at all. Under the* guidelines, the
Government of India was bound to give environmental clearance only after
all necessary data had been collected and assessed and safeguards and cost
worked out.21 The judge held that until such a clearance was given further
construction work on the dam should cease. It could restart after the grievance
redressal authorities certified that all oustees had been satisfactorily
rehabilitated. This process should be repeated for every successive proposed
five meter increase in the dam height.22 The dissenting judge made it absolutely
clear that the committee of experts as envisaged under EIA notification of
1994 should carry out surveys, assess the environmental impact and so doing,
consider that the construction of the dam and other work had already
commenced.

Sustainable development
Effective rehabilitation of project affected people is (PAPs) one of the
significant indicators of sustainable development. In the Narmada case the judges

21 Id. at 3776-81.
22 Id. at 3771.

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who subscribed to the majority view undertook a thorough discussion on the

entire relief and rehabilitation measures. The State of Gujarat had allotted to
tribal oustees lands equal to, if not better in quality of, what they had originally
owned. This satisfied the stipulation of ILO convention.23 The project itself
would bring out substantial benefits. It would provide safe and clear drinking
water to 8215 villages and 135 towns in Gujarat and 131 villages in desert
areas of Rajasthan, although against these benefits only 241 villages were
getting submerged partially and only four villages fully. It would be of great
relief to draught-prone and arid zones in Gujarat and Rajasthan.24 The court
observed:25

[Environment concern has not only to be of the area which is going to

be submerged and its surrounding area. The impact on environment
should be seen in relation to the project as a whole. While an area of
land will submerge .... the construction of the Dam will result in multifold
improvement in the environment of the areas where the canal waters
will reach.

Obviously, the majority probed how the project struck a balance between
developmental needs and environmental values. They found the project had
built-in safeguards and satisfied the goal of sustainable development.
It was found that compared to other similar projects SSP had the least
ratio of submergence to the area benefitted (1.97% only). The PAPs to FRL
455 ft were being resettled with better amenities and health care. Rehabilitation
agencies were satisfied with the resettlement when they cleared the dam
height in the year 1999. The canal affected people are benefitted with more
agricultural output; they cannot be equated with PAPs. Resettlement as a
community does not mean rehabilitation in homogenous groups or resettlement
on the basis of tribes, sub-tribes, groups or sub-groups. The objective was to
fully integrate the displaced people in the community in which they were re-
settled. This is easily achievable if they were re-settled in the command area
which is more productive than the affected land. This was what the tribunal's
award had stipulated. The court concluded that the tribunal award is final
and the NCA is an independent authority as envisaged by the tribunal and
there is no reason why there is grievance against the grievance redressal
mechanisms presided over by retired judges. Acquisition for all lands required
for FRL was not made in one go. The court gave several reasons. Money
need not be blocked. Trespass can be avoided. Land need not be kept fallow
for long period. Sizable amount would be saved if weeds are not to be
removed.26 Whether these are really serious and acceptable reasons for the
delay in acquisition is a debatable point.

23 Id. at 3783, 3784.

24 Id. at 3786, 3787.
25 Id. at 3828.
26 Id. at 3820.

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V JUDICIAL REVIEW

The hands-off approach

In Narmada Bachao Andolan v. Union of India27 the Supreme Court by a
majority decision was reluctant to review the appropriateness of constructing
large dams. Environmental clearance for construction was given with conditions
for massive rehabilitation. The court held that whether to have an infrastructural
project or not is a policy decision. The type of project to be undertaken and the
manner in which it has to be executed are also in the domain of policy making
process. Courts are ill equipped to adjudicate on these questions although they
have a duty to see that in the implementation of a decision no law is violated
and people's fundamental rights are not transgressed upon except to the extent
permissible under the Constitution. Even then any challenge to such a policy
decision must be made before the execution of the project is undertaken.28
A considered decision by a responsible democratic government cannot be
said to be contrary to the public interest. For providing water to drought-prone
zones construction of the dam is the only decision the government could take.
It may have adverse impact on the people whose houses and lands are submerged.
The decision is taken after due care and consideration to these conflicting issues.
The court cannot sit in appeal over such a decision. The decision is not against
any law, nor is it mala fide. It is not in public interest to require the court to
investigate into those areas which are the function of the executive.29

Laches
The petitioners were agitating against the dam from 1986. They challenged
the clearance given in 1987 only in 1994. No wonder the majority found 'laches'
on the part of the petitioners. It was in 1979 that the inter-state water dispute
tribunal determined the height of the dam. This remained unchallenged till 1994.
Despite this lacuna, the court entertained the petition only because the case
involved rehabilitation schemes concerning the fundamental rights of oustees.30
The dissenting judge did not agree on 'laches'. According to him public interest
is so demonstrably involved in the case that it would be against public interest
to decline relief on laches.31

VI ECOLOGICAL PRESERVATION

Coastal zone management

Coastal Regulation Zone (CRZ) Notification with a view to protecting coastal
eco-system was issued in 1991 under EPA. Its impact on three development
projects in Mumbai coast was examined in Sneha Mandal Co-op. Housing Society

27 Supra note 3.
28 Id. at 3825.
29 Id. at 3828.
30 Id. at 3782-84.
31 Id. at 3771.

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Ltd. v. Union of India.32 One of the projects, the bulk receiving station, planned
to be set up near BEST sub-station was held to be only a feeder plant supplying
electricity to the station which with its underground facilities and infrastructures
was in existence prior to the year 1991. New development is permissible according
to the CRZ notification in a developed area in CRZ II. The Bombay High Court
held that the larger public interest, namely, the need for the bulk receiving
station in the locality "got more weight when two public interests compete with
each other.33 In respect of other two projects the court had a different view. The
construction of helipad in the region surrounded by human habitat was without
clearance either from the Ministry of Environment and Forest(MoEF) or from
the Coastal Zone Management Authority(CZMA) in the state. The other project
for change of user from garden or playground to housing in CRZ was also
without clearance from CZMA. Both these projects were found to be violating
CRZ regulations.

Agricultural lands and brick kilns

Transformation of agricultural lands into brick kilns not only leads to
environmental havoc but also affects food security. In M.CMehta v. Union of
India,34 the Supreme Court accepting this position, laid down that no brick kiln
is normally permitted in agricultural land if it is less than one hectare; only a
fraction of the land is to be used if it is more than a hectare. Lands are being
used for agricultural purpose. However, the two erstwhile brick kiln owners who
had switched over to enviro-friendly fly ash technology were allowed not to
surrender their lands.

Parks or shopping complex?

The Supreme Court had decided in 1999 in M.I.Builders Pvt. Ltd. v. Radhey
Shyam35 that an underground market, though almost complete, should be
dismantled in order to restore the grandeur of the old natural garden of historical
importance. In Partha Pratin Ghosh v. State of West Bengal36 the Culcutta
High Court examined whether M.I. Builders dictum had to be applied when a
public park was encroached by building a multi storied shopping centre for
rehabilitation of the hawkers in the area. Interestingly, the municipality had
not formulated a policy for rehabilitation nor did they approve transfer of land
under the West Bengal municipal legislation. The court found the conduct of
the municipality 'suspect', but still refrained from ordering demolition of the
structure. The court found its reason. Ecological balance and greenery are a
must but the need of development of the area cannot be brushed aside. In the
court's view they cannot adopt a rigid attitude in such matters and in all
cases. 37

32 AIR 2000 B o m 121.

33 Id. at 126, 127, 130 and 131
34 AIR 2000 S C 3052.
35 AIR 1999 S C 2468.
36 AIR 2000 Cal 84.
37 Id. at 87.

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In M.l.Builders the contract was given without tender clandestinely and

without examining whether there were more competent men to do the work. The
contractors did the work at their own risk; the law was breached by Mahapalika
with impunity. This distinction drawn by the Calcutta High Court does not seem
to be inapplicable when the court found that the municipality's actions without
a specific rehabilitation policy were not above board but 'suspect'. The case also
boosts an idea that environmental degradation can be retrieved and environment
restored only when a benami developer had done something illegal and not
when public authorities acted against constitutional commitment to environment.

Disposal of solid waste

Directions of courts may not be implemented on certain occasions due to
some difficulties. In Almitra H.Patel v. Union of India 3* the highest court had
to wake up the municipal and government agencies by re-issuing time-bound
directions to keep Delhi clean. The respondents raised practical difficulties to
which the court reacted in strong words. There ii no dearth of retired officials
in Delhi willing to act as magistrates to execute laws and take action against
those who litter the city. Being not commercial ventures but environmental
measures, sites for landfill should be identified. Floating population may make
cleaning the city a daunting task. In this context the court quoted the example
of a single man, the municipal commissioner, who after the plague in 1995,
endeavoured to make Surat as the second most clean city in India. Holding that
'rewarding an encroacher on public land with free alternative site is like giving
a reward to a pickpocket', the court signalled against 'slum creation* instead of
'slum clearance' and came heavily against agencies who forgot to prevent growth
of slums.39 The court directed that the names of the officers in charge should be
published and compliance filed within eight weeks.

VII PROTECTION OF FOREST

Reservation of forest
Reservation of forests will affect the rights of the forest dwellers to a large
extent and the state should take protective measures when they declare the
reservation. This does not mean that the forest dwellers are entitled to any
exemption. The Madras decision in Padavettai v. State of T.N40 is an example.
Petitioners' joint family migrated to the private forest more than 60 years ago
and had been carrying out agricultural operations ever since with the benefit of
adverse possession. The petitioners refused to receive the copy of the reservation
notification and also did not respond after it was published on the notice board
of the panchayat and by beat of drum. Rejecting their claim for agricultural
lands in the region, the court held that once notification for reservation is made
and objections are not filed within the stipulated period no argument for exception

38 AIR 2000 SC 1256.

39 Id. at 1258, 1259.
40 AIR 2000 Mad 524.

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for agricultural lands from reservation can ever be accepted. In the circumstances
the pleas such as utter disregard of the rights of the citizens, violation of law and
equity and infringement of equality clause in the Constitution should fail.

Regularization of encroachment
Growth of population pushes people to move on to new and unoccupied
regions in search of shelter and livelihood. In Nature Lovers Movement v. State
of Kerala41 the question was whether the government decision to give title to
such occupiers in forests was valid under section 2 of the Forest (Conservation)
Act, 1980 (FCA) which requires prior sanction of the central government for use
of forest for non-forest purpose. The court relied on sustainable development
and adopted a super deferential attitude towards development and planning
decisions of government. According to the court, the conditions for regularisation
of encroachment are sufficient guarantee for development of agriculture, trade
and industry and for reconciliation between preservation of environment and
augmentation of economy.42 The state government took a policy decision on
11.3.1992 to assign forest areas which had been in possession and enjoyment of
the encroachers prior to 1.1.1977. Evidently, the assignment relates to lands
occupied before FCA came into being. The court said FCA does not operate
retrospectively; it checks all 'further' deforestation. No prior approval is needed
for past encroachment. Compensatory afforestation cannot be insisted on as a
condition precedent to prior approval. The government made the decision on
regularization after taking into account needs of agricultural advancement as
well as imbalance on environment. The advisory committee also had considered
all conditions including afforestation before they recommended for prior approval.
In a densely populated state, to find out equal extent of non-forest land is not
at all possible; the only way is to reafforest degraded forest. This is being done;
requirements of sustainable development are met. No wonder the court was
reluctant to review the wisdom of the executive in evolving a methodology of
their own to implement compensatory afforestation programme.43 The court
accepted the views expressed in an inquiry report and held it impossible to evict
and rehabilitate lakhs of people who had occupied the land with tacit consent of
the government for promotion of cultivation. The issue raised human problems
which have social and economic dimensions.44
According to the court, the attempt of public spirited enthusiastic people to
dislodge fair opportunity to the victims of threatened eviction is only to be
disdained. These remarks do not seem to be relevant in view of the court's
recognition of the petitioners' locus standi on behalf of the lovers of environment
as well as its awarding of the cost to the petitioners.45 According to the court the
formidable and remarkable defence of the state for regularisation of title deeds

41 AIR 2000 Ker 131

42 Id. at 148.
43 Id. at 156-70.
44 Id. at 171, 172.
45 Id. at 142, 175.

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had removed the vacuum in argumentation of those who were not parties to the
investigation. Obviously, the court approved the petitioners' plea that 'there was
environmental degradation in de-reserving the forest land or using it for non-
forest purposes by occupants/encroachers affecting the environmental
equilibrium.46 The compensation collected by the government from the settlers
is to be spent for afforestation programme. When forests are used for non-forest
purpose a dialogue on social cost and benefits in relation to environment has to
take place on more serious plane. The cost is too great to be compensated and
the gap too wide to be bridged by such a small fund.

Illegal timber
The Godavarman cases had their impact during the year under review. In
T.N.Godavarman Thirumulkpad v. Union of India,41 the Supreme Court ratified
the action of officers of the MoEF in detaining railway wagons containing
illegal timber. So doing the court went on to lay down the law. No court will
have jurisdiction to entertain any complaint with regard to the timber already
seized. MoEF has power to suspend licences, disconnect electricity to delinquent
units, sell the illegal timber and keep the sale proceeds in a separate bank. Inter-
state movement of timber can be allowed only if the collectors in the districts
of entry certify that the movement is inter state. Earlier orders were modified
with regard to three cable factories in the State of Madhya Pradesh. Eucalyptus
and mango tree wood can be transported to these factories provided the collectors
in the districts* where the factories are situate certify that the wood will be used
for making cable drums only. Cable drums are necessary to protect the cables.
Cutting of trees is permitted for that purpose. Will this not help sustainable
development to a little extent?

VIII WILD LIFE

Wild life sanctuary

The Wild Life (Protection) Act, 1972 was enacted when environmental
consciousness was at a low ebb. However, the provisions for declaration of wild
life sanctuary and national park has 'ecological, faunal, floral, geomorphologic
or zoological significance'. Entry and movement restrictions into the area are the
notable features. In Bombay Burmah Trading Corporation v. Field Director,
Project Tiger and Conservator of Forests,48 the Madras High Court had to deal
with the use of road within a wild life sanctuary where the petitioners' estate
was situate. The court said that once a particular area is declared as wild life
sanctuary, any private rights in the territory are subjected to the conditions of
permit granted by chief wild life warden. Such conditions are imposed for
preservation of the sanctuary and protection of wild animals and their habitat in
the sanctuary. Hence, restrictions on the number of vehicles on the roads within

46 Id. at 174.
47 AIR 2000 SC 1636.
48 AIR 2000 Mad 163.

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the sanctuary and the limited duration of movement of vehicles between 6 a.m. and
6 p.m. were held to be not arbitrary. However, the court found two other conditions
unreasonable. One is that which empowered the deputy director to cancel permit
without assigning reasons. The other is that in emergency, the permit holders should
get permission of deputy director whose office is located 30 kilometers away.49
Can the extent of a wild life sanctuary be reduced in order to exploit mineral
resources available in the territory? Can such a reduction be valid if it is made
by the legislature enacting a law? Should not the legislature, if it can do so,
consider all relevant aspects relating to sanctuary? Consumer Education and
Research Society v. Union of India50 raised these questions when the Gujarat
legislature by a resolution, and the government by an order executing the
resolution, reduced the area of Narayan Sarovar Chinkara Sanctuary from 765.79
square kilometers to 444.23 square kilometers. The high court held that for
about 1200 chinkaras the reduced area was enough and the economic development
of the area is of immense benefit to the people. On special leave appeal, the
Supreme Court agreed with the petitioners that the legislature should have better
consideration and taken relevant factors into account. Nevertheless, the legislature
took the decision after deliberating upon the materials available to them. By
section 26-A(3) of the Wild Life Protection Act the power to take decision for
reduction of the notified area was given to the legislature which consists of
people who know the requirements of the area. The court observed:51

Even when it is found by the Court that the decision was taken by the
State Legislature hastily and without considering all the relevant aspects
it will not be prudent to invalidate its decision unless there is material
to show that it will have irreversible adverse effect on the wild life and
the environment.

The inarticulate idea lying behind the observation is prophetic. It may clear
the way for courts to interfere if the law violates provisions concerning
environment protection in the directive principles of the Constitution. Expert
committees of the Union of India and the Gujarat Ecology Commission considered
that the area as edaphic thorn forest rich in bio-diversity; any reduction in the
area would endanger the diverse species of trees. These facts did not seem to
have weighed with the court when it gave precedence to the legislative and
executive functions to balance economic development with environment. The
court thought it proper to permit restricted exploitation of mineral wealth for a
period of time under observation and direct afterwards for a comprehensive
study. A judicial trend is developing. Contentions of ecological imbalance and
destruction to bio-diversity are being rejected on the ground of sustainable
development. In fact sustainable development brings economic growth without
destroying the resource base. Preservation of bio-diversity is one of its significant

49 Id. at 166, 167.

50 AIR 2000 SC 975.
51 Id. at 978 (Emphasis supplied).

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elements. The facts of the case show that experts had already reached the
conclusion that the area was of ecological significance and 'developmental
activities' would affect ecological balance. In such a situation courts can
legitimately adopt a deferential attitude. Deference to what and whom is the
question. Should there be deference to the words of wisdom and expertise towards
sustainable development? Or should it be to what the legislature and the executive
say? There is a silver lining in the judgement. Instead of blindly approving the
development planned for in the denotified area, the court wanted to have an
overseeing expert committee headed by a retired judge and to see periodical
reports on air and water pollution.52
Extension of a sanctuary for providing better habitat for rhinos and corridors
of animals was under challenge in M/s. Chandmari Tea Co. v. State of Assam.53
The petitioners belonged to different groups. One had interest in a tea estate
which was ordered to be closed. Some were people who had the privilege to
graze their cattle in the locality. Some others were men who managed to establish
schools without any authorization in the areas. Still others were flood affected
people allowed to be settled in the area under dispute. The alluvial flood plains
are ecologically suitable habitat for rhinoceros and other associate species.
Inclusion of the area was necessary for protecting wild life, improving environment
and safeguarding the forest. Most of the petitioners were not actual inhabitants
of the area and were people giving headache to the forest authority with
innumerable problems at the cost of precious but endangered wild life. The court
did not find any lapse or defect in the notification for the extension. It held that
genuine claimants would be given compensation and not others.

Victims of wild animals

Can a state government be made liable for damages in tort for injuries
sustained by an attack of a wild animal? In State of Himachal Pradesh v. Haiti
Devi,54 the H.P. High Court noted that there is no provision in the wild life law for
such a relief. The respondent was attacked by a black bear and he sustained permanent
disability. Dissatisfied by an ex gratia payment of Rs. 50,000/-, the victim filed a suit
for damages against the government. On second appeal, the high court noted that an
act done in good faith by the state or its officers is insulated by a statutory bar against
a civil suit. Moreover, there was no evidence that the animal was let loose in the
jungle by the state officials. Hence the claim for damages as a result of attack by
a wild animal would not stand. It is true that the animals hunted or kept or bred in
captivity are the property of the state. But the mere fact that killing of animals
roaming in jungle is prohibited under law does not mean that the state is their owner.
Ex gratia payment does not mean that the government had accepted tort liability.
The appellant had not discharged the onus of proof.

Mobile zoo to surrender animals

In All India Mobile Zoo Owners and Animal Welfare Association v. Union

52 Id. at 979.
53 AIR 2000 Gau 13.
54 AIR 2000 H P 113

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of India,55 the Delhi High Court had examined the question of compensation
further. The court held that surrender of animals whose possession and holding
were not legal under the wild life law does not create a claim on the petitioners
for compensation. Nor can it create a liability on the state to pay compensation.
What the petitioners can do is only to apply for ex gratia payment on surrendering
the animals. In respect of animals under valid possession, surrender renders
legitimate claim for compensation.

IX CONTROL OF POLLUTION

Noise pollution
The courts had grave concern on the impact of noise pollution on the health
of people. In Church of God (Full Gospel) in India v. K.K.R.M.C. Welfare
Association,56 dealing with the problem of sound vis-a-vis freedom of religion,
the Supreme Court held that directions of the high court to bring down noise
level were perfectly legal. They were in consonance with the Madras City Police
Act, 1888 and Madras Town Nuisance Act, 1889 and in conformity with the
Noise Pollution (Regulation and Control) Rules, 2000 framed by central
government under the EPA. In a civilized society every person is entitled to
enjoy his natural rights to quietness without being interfered by noise pollution.
The aged, sick, people with psychic disturbances and children up to six years of
age are considered to be very sensitive to noise. Their rights are to be honoured.57
The evil effects of noise pollution are enormous—interruption of sleep, loss of
efficiency, hearing loss or deafness, high blood pressure, depression, irritability,
fatigue, gastro-intestinal problems, allergy, distraction, mental stress and
annoyance. The extent of damage depends upon the duration and the intensity
of noise and sometimes may lead to serious law and order problem. Further, in
an organized society, rights are related with duties towards others including
neighbours. The court held that there is no ground for permitting noise pollution
caused by voice amplifiers, loud speakers or musical instruments.58
With the rapid industrialization and urbanization, the noise pollution has
become a disturbing phenomenon. This has been examined thoroughly by the
Orissa High Court in Bijayananda Patra v. District Magistrate, Cuttack.59 Noise
causes increase in cholesterol level, makes one prone to heart attack and stroke
and leads to neurosis and nervous breakdown. The court went into the Puranas
and quoted Ramcharit Manas, Sunder Kanda 27/1, to show that "the roar of
Hanuman, while back from Lanka, brought abortion to many a demoness in
Lanka". Concern over noise pollution has led to many reforms: noise proof
motor vehicles, sound barriers on road sides; tunnels instead of fly-overs and
restriction on noisy traffic. Noise is nuisance. When noise from a machinery or
an instrument at defendants' premises materially affects physical comfort of the

55 AIR 2000 Del 449.

56 See supra note 8.
57 Id. at 2773.
58 Ibid
59 See supra note 9.

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occupant of the plaintiff's house, the person causing noise can be restrained by
injunction. Pollution of air, water or atmosphere through noise continues to be
part of, and not severable from, the common law of nuisance despite the enactment
of the new laws on environment whose purposes have been to include the
pollution control measures in the wider conspectus of social justice.60
The judgement is significant by its suggestions: adoption of environment
friendly technology, design of sound-proof machinery, planting trees on both
sides of roads and outside factories, spreading awareness about the evils of noise
pollution and planning flights of aeroplanes to curb noise. The court said, "House
of God should be kept peaceful and noise free as it is rightly said that God is
not deaf. Crossing the danger point, noise like smog is threatening as a slow
agent of death. The court was aware of the urgency of controlling noise. A noise
code should aim at strict enforcement of governmental standards and establishment
of noise control courts to dispose cases quickly. District magistrate should be
empowered under section 144 of the Criminal Procedure Code, 1973 to limit
hours of the use of loudspeakers. Pollution control boards and district
administration should work out modalities of controlling noise pollution.61

Sharing of cost in pollution control

The polluter pays principle is now part of the Indian environmental law.
Can a polluter or potential polluter demand for reduction of share of contributions
to common effluent treatment plants (CEPTs)? In Re M/s. Jajmann Tanneries
Association62 relates to such a question. Should the Supreme Court modify its
order fixing 60 per cent contributions to be paid by 175 tanneries to the state's
share for the maintenance and operational cost of CEPTs and reduce the
contributions to 50 per cent? The plea was that too high a fee would exceed the
capital cost of installing secondary treatment plant. The court held that the ratio
had been arrived at after a thorough consultation with the tanneries' association
and after taking into account the fact that pollution load to tanneries was just
double the load of municipal sewer. However, sympathizing with the plight of
the owners of tanneries, the court thought it 'just and proper' to direct reduction
from 60 per cent to 50 per cent.

Agencies of environmental control

The EPA and pollution control laws have endowed the pollution control
boards with significant powers. It is a tragedy that on many occasions in the past
courts had to remind them of their powers. Suo Motu v. Vatva Industries
Association, Ahmedabad,63 presents a peculiar situation in which a note prepared
by the board official is submitted to the court requesting for a direction to 7th
respondent to stop its unauthorized movement of wastes to its unit members. It
often happens that courts issue mandamus and direct boards to take action when
the latter fail in their duties. Strangely, this case presents a reverse process. The

60 Id. at 75.
61 Id. at 76, 77.
62 AIR 2000 SC 150.
63 AIR 2000 Guj 33.

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board asks the court to take steps. According to the Gujarat High Court, such a
course is nothing but dereliction of duty on the part of the board. It is the
function of the board to take immediate and stringent action against units which
dump hazardous waste and release untreated effluents. If the board waits for a
direction from court, the situation will help nefarious activities to continue under
the pretext that the case is pending before the high court.

Closure not a blanket power

After the enactment of EPA in 1986 both water and air laws were amended.
The boards were given the power to issue binding directions to any person,
officer or authority. Petitioners in M/s. Jadav Soap Works v. Union of India64
were the owners of or a small scale industry established in 1948 long before the
laws came into being. The court held that the series of actions of the board
culminating in the closure order appear to be arbitrary. Notice of closure was
issued without affording an opportunity to apply for consent.
According to the court, the power to issue directions is not a blanket power to
pass any order it likes. If it is found that the petitioner industry was emitting high
black smokes creating hazard to the inhabitants without any preventive measures at
the source, the board had to take appropriate action by following due process of law.

Dilemmas of control
Under the Water (Prevention and Control of Pollution) Act, 1974 the state
government can supersede a state pollution control board on two contingencies.
They are (i) when the board persistently defaults in performing its functions, and
(ii) when there are circumstances that make it necessary for the government in
public interest to supersede. The law specifies that in the first instance the board
has to be given an antecedent hearing. The statute is silent on hearing in the
second instance. However, before it goes for the drastic action, in both instances
the state government has to form an opinion. A similar provision is there in the
air Act also.
R.A.Goel v. Union of India65 relates to supersession of the Haryana Pollution
Control Board on the ground of public interest. In order to promote small scale
industries, the Haryana government declared a policy that except the 17 small
scale industries identified by the Government of India as highly polluting
industries and the 19 other industries identified by the board itself as belonging
to this category of polluting industries, consent under the pollution control laws
was not required. In spite of pressures from several quarters, the board took the
position that the government has no right to issue administrative orders contrary
to the water, air and environment Acts and that pollution control parameters
should apply to all industries. On getting adverse remarks from the state industries
department on the behaviour of the board, the government decided to supersede
the board in public interest. Endorsing the action, the Punjab and Haryana High
Court held that no government would tolerate a defiant board throwing to winds

64 AIR 2000 Gau 47.

65 AIR 2000 P&H 320.

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its declared industrial policy by putting impediments to the growth of industrial

development. Supersession of a statutory body is no doubt a drastic action but
silence in the statute does not exclude hearing unless it is barred by necessary
implication. The Act provides for hearing only when supersession takes place on
persistent default of the board in performing its functions and not when the
government is satisfied of the circumstances that make it necessary to supersede
the board in public interest. The court held that in the case of supersession in
public interest, hearing is excluded by necessary implication.
The court may be right in its view on hearing. On the other hand what is
not adverted to in the case was whether there were sufficient circumstances
warranting supersession in public interest. What are the contours of public interest
that renders supersession essential, urgent and unavoidable? Has the government
correctly formed an opinion on this question in an objective manner free from
any external influence or from extraneous factors? The court is seen to have
relied on G.S.Oberoi v. State of Punjab66 In this case the supersession took place
when the government formed an opinion that acts of the board were not in
harmony with the purpose sought to be achieved by the laws on water and air
pollution. There were revealing reports of inquiry to support the conclusion that
the board favoured the industries guilty of pollution and had withdrawn a number
of cases booked against them for reasons other than public interest. Thus, Oberoi
makes the position clear. When the board acts contrary to the objectives of the
law that created it, its behaviour can be said to be against the public interest that
renders a legitimate ground for supersession. Obviously, the ground in Goel of
'harassing* small scale entrepreneurs does not seem to be relevant. The object
of pollution control laws is different, namely, protection of the environment free
from pollution. Small scale industries should operate under the discipline of law.
Should the board brush aside all environmental parameters and turn itself into
an instrument at carrying out the declared policy of government? Downgrading
the board to a subordinate wing of the industries department is not envisaged
under law, nor is it in the public interest. Manifestly, Oberoi situation, with
undue favours to the industries guilty of pollution demanded immediate remedial
action for elimination of pollution hazards, was not present in Goel. Moreover,
how can mere issuance of a notice be characterized as harassment?

X PROSECUTION OF ENVIRONMENTAL OFFENCES

No fine without law and trial

Will the power under article 32 to award damages, or even exemplary
damages to compensate environmental harm, extend to levy of a pollution fine?
In M.CMehta v. Kamal Nath61 the Supreme Court ruled that it will not. The
court traced the evolution of polluter pays principle, examined the penal provisions
in the water and air laws and in EPA and laid down that a fine is to be imposed
only when a person is found guilty after a fair trial. The inquiry in the case was

66 AIR 1998 P&H 67 at 75, 76.

67 AIR 2000 SC 1997.

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whether the show-cause notice for imposing pollution fine on M/s. Span Motel
Private Ltd. in pursuance of the decision of the court in 199668 was valid or not.
The notice was issued without reference to any provision of law. Nor could it
be justified on the ground of doing complete justice under article 142. Though
the notice for pollution fee was withdrawn, the court held that exemplary damages
could be awarded as detailed in the main judgment and a fresh notice for
exemplary damages in addition to damages was ordered to be issued.69

Pollution offence : corporate criminal liability

More often than not, courts are embroiled in controversy of technicalities in
prosecution. The result is that corporate leviathans go unpunished with a hushed
smile of victory. In U.P Pollution Control Board v. M/s. Mohan Meakins Ltd,10
the appellant board had launched prosecution of the respondent company and its
directors for continuous pollution of the river. Disappointed by the order of the
lower court not to discharge them, the respondents went in revision. The court
of sessions approved their stand that in issuing summons the magistrate did not
give a * speaking order'. On remand the chief judicial magistrate gave a detailed
and reasoned order. Still the session's court quashed the order. There was
inordinate delay of 15 years in the high court in dismissing a revision against
this order of the session's court. The Supreme Court indirectly expressed
displeasure by observing that it was not a pleasant task to probe into the causes
of this delay. According to the court, the sessions judge committed an error in
quashing the process merely on the ground that the issuing magistrate should
give a speaking order. It is unnecessary to write detailed orders in matters such
as issuing process, remanding the accused to custody, framing charges and passing
over to next stage in the trial. Every person who is in charge of, and is responsible
to, the company for the conduct of the business of the company is liable to be
prosecuted under section 47 of the Water Act. The respondents raised the plea
of lapse of several years for getting out from prosecution. The court did not
accept the plea but made it clear that the lapse of long period was a good reason
for expediting the trial. It observed:71

Those who discharge noxious polluting effluents to streams may be

unconcerned about the enormity of the injury which it inflicts on the
public health at large, the irreparable impairment it causes on the aquatic
organisms, the deleteriousness it imposes on the life and health of
animals. So the Courts should not deal with the prosecution for offences
under the Act in a casual or routine manner. Parliamentary concern in
the matter is adequately reflected in strengthening the measures
prescribed by the statute. The Court has no justification for ignoring the
seriousness of the subject.

68 M.CMehta v. Kamal Nath, (1997)1 SCC 388.

69 Id. at 2003.
70 AIR 2000 SC 1456.
71 Id. at 1457.

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