T.N. Godavarman Thirumalpad Vs. Union
of India & Ors  Insc 453 (30 October 2002)
Y.K. Sabharwal & Arijit Pasayat. Arijit Pasayat, J.
destroying nature, environment, man is committing matricide, having in a way
killed Mother Earth. Technological excellence, growth of industries, economical
gains have led to depletion of natural resources irreversibly. Indifference to
the grave consequences, lack of concern and foresight have contributed in large
measures to the alarming position. In the case at hand, the alleged victim is
the flora and fauna in and around Kudremukh National Park, a part of the Western Ghats. The forests in the area are among
18 internationally recognized "Hotspots" for bio-diversity
conservation in the world. The I.A. 670 of 2001 was filed by Sri K.M. Chinnappa
describing himself as trustee, Wildlife First.
said I.A. 670 of 2001 is an offshoot of I.A.548 filed by learned Amicus Curiae
questioning the correctness of orders issued by the States of Karnataka and
Uttar Pradesh respectively which according to him were in violation of the
provisions contained in the Wildlife (Protection) Act, 1972 (in short the
'Act'). By order dated 14.2.2000, operation of any order permitting removal of
certain trees from National Parks, Game Sanctuaries and Forests was injuncted.
Subsequently, the word 'forests' was deleted.
present I.A. learned Amicus Curiae has pointed out that notwithstanding orders
passed by this Court on 12.12.1996 and 14.2.2000 mining activities were being
conducted by Kudremukh Iron Ore Co. Ltd. (hereinafter referred to as a
'company') which were in clear violation of orders passed by this Court. The
main reliefs sought are:
to direct the MoEF to withdraw the illegal "temporary working permission"
issued by it and stop mining activities;
KIOCL to stop polluting the Bhadra river due to open cast mining;
action against KIOCL for illegal encroachment in the forests and for
destruction of forests in the Kudremukh National Park; and
stop KIOCL from laying new slurry pipe line in the forests of the National
10.5.2001, this Court passed an order to the following effect:
notice returnable in the second week of July, 2001.Mr. A.D.N. Rao, Advocate
accepts notice on behalf of the Union of India. Service be effected on
respondent No. 2 through Mr. S.R. Hedge, A dvocate and on respondent No. 3 by
ordinary process and by registered post.
of India will file an affidavit within eight weeks and in the affidavit they
will also state the reason as to why the Government of India having once
notified the area as a National Park then permit mining activity to be carried
out notwithstanding this Court's order of 12th December, 1996." It was
noted that Kudremukh National Park in which mining activities were being
carried out was declared to be a National Park in terms of Section 35(1) of the
Act. The matter was referred to the Central Empowered Committee (in short the
'Committee') constituted under Section 3 of the Environment (Protection) Act,
1986 (in short the 'Environment Act'). After hearing the parties and taking
note of the materials placed before it the Committee has recommended as
carefully considering all the views and suggestions, the exceedingly rich
biodiversity of the area and investment made by the KIOCL, suggestion made by
the learned Amicus Curiae, the Committee is of the view that the KIOCL be asked
to wind up its operations within a period of five years or on the exhaustion of
the oxidized weathered secondary ore, whichever is earlier, in the already
broken up area. It is clarified that the period of 5 years would commence from
25-7-1999, when its lease had expired.
winding up period of five years shall be subject to the following conditions:
MoEF should prepare or get a rehabilitation and reclamation and a proper
eco-restoration plan prepared for the mined area and project impact area
through appropriate agency at the cost of KIOCL;
KIOCL shall undertake to make available funds necessary for implementing for
the aforesaid plans. The plans would be implemented by the agencies selected by
the MoEF and under the supervision of the MoEF;
a monetary compensation of Rs.25 crores @ Rs.5/- crores per year will have to
be deposited by KIOCL with MoEF in a separate bank account which would be
utilized for the purposes of research, monitoring and strengthening protection
of the Kudremukh National Park and for other protected areas in the State of
Monitoring Committee shall be constituted by the MoEF comprising representative
of MoEF, representative of the State of Karnataka, two NGO experts preferably
from Karnataka, which shall monitor the implementation of the rehabilitation
the winding up operations are complete, the KIOCL will transfer all the
buildings and other infrastructure to the Forest Department of the State of Karnataka at book value.
guidelines for dealing with development projects in protected areas as
recommended by Learned Amicus Curiae and agreed to by the MoEF in its affidavit
filed by Shri S.C. Sharma, Additional Director General of Forests shall be
notified within 30 days with the concurrence of the Central Empowered
Committee." One of the members of the Committee Shri Valmik Thaper gave a
dissenting note. According to him all mining operations must stop immediately
and the five years' period starting on 25th July, 1999 (on which the original
lease period expired) must be treated as a "Restoration and Winding up period"
so that the company can restore all mined lands, plant indigenous species and
protect the region and give back to one of the world's finest forests what has
been taken from it. All costs will be met by the project proponent. When the
matter was taken up, Shri Thaper was requested to submit further materials, if
any, to justify his dissenting note. A photographic Report has been submitted.
The Company has filed its response in relation to the Committee's
recommendation and connected reports.
contending that there was no violation of any law relating to forests and
environment certain legal issues were raised by the Company which need to be
dealt with first. With reference to Rule 24 (B) of the Mineral Concession
Rules, 1960 (in short the 'Concession Rules') framed under the Mines and
Minerals (Regulation and Development) Act, 1957 (in short the 'Mines Act'), it
was submitted that notwithstanding anything provided under the Act,
Conservation Act or the Environment Act, on an application being made the lease
was to be renewed for twenty years and therefore, the recommendations made at a
point of time for such period were in order. Further, the draft Notification
under Section 35(1) of the Act was issued on 2.9.1987 and the final
Notification was published on 16th June, 2001
under Section 35(4) of the Act, whereby the land under mining was specifically
excluded. In any event, 900 hectares of land was outside the land covered by
the Notification. The Notification dated 29.5.1982 issued under Section 349 of
the Karnataka Municipalities Act, 1964 (in short 'Municipalities Act') was also
relevant. All these, according to Shri Venugopal, took the land in question
outside the purview of the operations of the Act, Conservation Act and the
to the order dated 14.11.2000 passed in W.P.337/2000, it was submitted that the
same was relatable to a stage under Section 35(5) of the Act. Since there was
an existing legal right to get a renewal, which had already accrued, there was
no question of any embargo on the renewal of the mining lease. In this
background, it was submitted that the State and the Central Governments at
earlier points of time had acceded to the request of the company for renewing
the lease for twenty years. Reference in this context was made to a letter
dated 6.7.1999 issued by the State Government.
pointed out that the company had subsisting contracts with foreign buyers, and
if the lease is not renewed or the mining activities are required to be
abandoned, there shall be large financial implications on account of
impossibility to perform the contracts. It was submitted that for the purpose
of renewal, no consent is necessary as an existing right is only to be extended
further. In any event, the period as suggested by the Committee should be
reckoned prospectively and not retrospectively and the two years' period
already covered by temporary working permit should be reckoned while computing
the period. It was pointed out that subsisting contracts with some foreign countries
are operative till 2005 and 2006 and at least adequate time could be given to
fulfill these contracts. Learned counsel for the State of Karnataka has
submitted that originally it had accepted the proposal for the longer period,
but taking into account the various circumstances, its final stand is that five
years period from 24.10.2001 would be adequate, equitable and fair.
company has taken a stand that it is earning valuable foreign exchange and
discontinuous of its business activities would stop earning of valuable foreign
exchange in addition to rendering large number of employees jobless. It is
pointed out that some subsisting contracts are there and in fact there is
possibility of extracting 342 million tons of primary ores, in addition to 119
million tons of secondary weathered ores. In fact, the company's request is for
permitting activities in some additional areas so that the primary ores can be
extracted and exported in addition to the secondary weathered ores.
main thrust of the Company's plea relating to environmental issues which was
highlighted by Shri Venugopal during hearing of the application was that the
Company has taken all possible steps to preserve and conserve nature in its
pristine glory. It is eco-friendly as would be evident from the various
activities undertaken by it and vast sums of money spent for preservation of
nature and environment in addition to efforts to prevent pollution. It has
received several awards for its admirable achievements in the field of environmental
protection. It was submitted that sustainable development is permissible and is
universally accepted phenomenon. At the time the company was incorporated
environment impact assessment was conducted and detailed guidelines were
formulated to see that there was least degradation of the environment. The
approach was clearly environmental friendly. The approach in such matters is to
see as to what prevailed when the project was commenced. There has been a
substantial change in the approach and if the contemporaneous factual backdrop
is considered, it will be seen that the company's anxiety was to protect nature
and environment. Further, the various reports submitted by expert bodies give a
lie to the impressions created before the Committee that there was continued
destruction of nature of the flora and fauna by the mining activities
undertaken by the company. The reality is otherwise. With reference to a
Notification dated 29.5.1982 issued under Section 349 of the Municipalities
Act, it is submitted that the concerned area cannot be a treated to be a forest
land. A reference was also made to a decision in State of Bihar v. Banshi Ram Modi and Ors. (1985(3)
SCC 643) to contend that the Act has no application.
Amicus Curiae has pointed out that stands of the company are per se not
acceptable. The Committee has granted to the company much more than what it
deserves. With reference to the report of Shri Valmik, it is pointed out that
the situation is so grave that "hands off situation" has come to
play. It is pointed out that the role of the Karnataka State Government and the
Central Government in the Ministry of Environment and Forest is far from satisfactory. Even
without any Environment Impact Assessment report, stand was taken for granting
20 years renewal period. There is no consistency in the stand of the State and
the Central Governments because at one point of time they agreed to renewal
period of 20 years and subsequently turned around to five years period, and
then again took inconsistent stands. All these go to show that there is no
proper application of mind and without realizing the serious consequences
involved, recommendations are being made. In W.P.337/2000 by order dated
14.11.2000, it was, inter-alia, directed as follows:
further orders, no de-reservation of forests/sanctuaries/national parks shall
of the State Government in excluding land while issuing Notification under
Section 35(4) of the Act is in clear violation of this Courts' order.
Ram's case on which emphasis was laid by the company is not good law in view of
the subsequent decisions of this Court in Ambica Quarry Works v. State of Gujarat and Ors. (1987 (1) SCC 213).
Reference may also made be made to the decisions in Tarun Bharat Sangh, Alwar
v. Union of India and Ors. (1992 Supp. (2) SCC 448), Tarun Bharat Sangh, Alwar
v. Union of India and Ors. (1993 Supp. (3) SCC 115) and two reported orders
in T.N. Godavarman Thirumulkpad v. Union of India and Ors. (1997 (2) SCC 267)
and T.N. Godavarman Thirumulkpad v. Union
of India and Ors. (1997 (3) SCC 312). The
stand of the company that Notification dated 29.5.1982 excluded the land in
question from being forest land is clearly untenable in view of the Section
2(ii) of the Forest (Conservation) Act, 1980 (in short the 'Conservation Act').
seminal issue involved is whether the approach should be "dollar
friendly" or "eco friendly".
is a difficult word to define. Its normal meaning relates to the surroundings,
but obviously that is a concept which is relatable to whatever object it is
which is surrounded. Einstein had once observed, "The environment is
everything that isn't me." About one and half century ago, in 1854, as the
famous story goes the wise Indian Chief of Seattle replied to the offer of the
great White Chief in Washington to buy their land. The reply is profound. It is
beautiful. It is timeless. It contains the wisdom of the ages.
the first ever and the most understanding statement on environment.
whole of it is worth quoting as any extract from it is to destroy its beauty.
can you buy or sell the sky, the warmth of the land? The idea is strange to us.
do not own the freshness of the air and the sparkle of the water, how can you
buy them? Every part of the earth is sacred to my people.
shining pine needle, every sandy shore, every mist in the dark woods, every
clearing and humming insect is holy in the memory and experience of my people.
The sap which courses through the trees carries the memories of the red man.
white man's dead forget the country of their birth when they go to walk among
the stars. Our dead never forget this beautiful earth, for it is the mother of
the red man. We are part of the earth and it is part of us.
perfumed flowers are our sisters; the horse, the great eagle, these are our
brothers. The rocky crests, the juices in the meadows, the body heat of the
pony, and man all belong to the same family.' So, when the Great Chief in Washington sends word and he wishes to buy our
land, he asks much of us.
Great Chief sends word he will reserve us a place so that we can live
comfortably to ourselves. He will be our father and we will be his children. So
we will consider your offer to buy our land. But it will not be easy. For this
land is sacred to us.
shining water moves is the streams and rivers is not just water but the blood
of our ancestors. If we sell you land, you must remember that it is sacred, and
you must teach your children that it is sacred and that each ghostly reflection
in the clear water of the lakes tells of events and memories in the life of my
people. The water's murmur is the voice of my father's father.
rivers are our brothers, they quench our thirst.
rivers carry our canoes, and feed our children. If we sell you our land you
must remember, and teach your children, that the rivers are our brothers, and
yours and you must henceforth give the kindness you would give any brother.
know that the white man does not understand our ways. One portion of land is
the same to him as the next, for he is a stranger who comes in the night and
takes from the land whatever he needs. The earth is not his brother but his
enemy and when he has conquered it, he moves on. He leaves his father's graves
behind, and he does not care.
kidnaps the earth from his children. His father's grave and his children's
birthright are forgotten.
treats his mother, the earth, and his brother, the sky, as things to be bought,
plundered, sold like sheep or bright beads. His appetite will devour the earth
and leave behind only a desert.
not know. Our ways are different from your ways. The sight of your cities pains
the eyes of the red man. But perhaps it is because the red man is a savage and
does not understand.
is no quiet place in the white man's cities.
place to hear the unfurling of leaves in spring or the rustle of in insect's
wings. But perhaps it is because I am a savage and do not understand. The
clatter only seems to insult the ears. And what is there in life if a man
cannot hear the lonely cry of the whippoorwill or the arguments of the frogs
around a pond at night? I am a red man and do not understand. The Indian
prefers the soft sound of the wind darting over the face of a pond, and the
smell of the wind itself, cleansed by a mid-day rain, or scented with the pinon
air is precious to the red man, for all things share the same breath the beast,
the tree, the man, they all share the same breath. The white man does not seem
to notice the air he breathes. Like a man lying for many days, he is numb to
the stench. But if we sell you our land, you must remember that the air is
precious to us, that the air shares its spirit with all the life it supports.
wind that gave our grandfather his first breath also receives the last sign.
And if we sell you our land, you must keep it apart and sacred as a place where
even the white man can go to taste the wind that is sweetened by the meadow's
will consider your offer to buy our land. If we decide to accept, I will make
one condition. The white man must treat the beasts of this land as his
I am a
savage and I do not understand any other way. I have seen thousand rotting
buffaloes on the prairie, left by the white man who shot them from a passing
train. I am a savage and I do not understand how the smoking iron horse can be
more important than the buffalo that we kill only to stay alive.
is man without the beasts? If all the beasts were gone, man would die from a
great loneliness of spirit. For whatever happens to the beasts soon happens to
man. All things are connected.
must teach your children that the ground beneath their feet is the ashes of our
grandfathers, so that they will respect the land. Tell your children that the
earth is rich with the lives of our kin. Teach your children what we have
taught our children, that the earth is our mother. Whatever befalls the earth
befalls the sons of the earth. If man spit upon the ground, they spit upon
we know : The earth does not belong to man, man belongs to the earth. This we
know: All things are connected like the blood which unites one family. All
things are connected.
befalls the earth befalls the sons of the earth. Man did not wave the web of
life; he is merely a strand in it. Whatever he does to the web he does to
the white man, whose God walks and talks with him as friend to friend cannot be
exempt from the common destiny. We may be brothers after all. We shall see. One
thing we know, which the white man may one day discover our God is the same
God. You may think now that you own him as you wish to own our land; but you
cannot. He is the God of man, and his compassion is equal for the red man and
the white. This earth is precious to him, and to harm the earth is to heap
contempt on the creator. The white too shall pass perhaps sooner than all other
tribes. Contaminate your bed and you will one night suffocate in your own
your perishing you will shine brightly, fired by the strength of the God who
brought you this land and for some special purpose gave you dominion over this
land and over the red man. That destiny is a mystery to us, for we do not
understand when the wild buffaloes are slaughtered, the wild horses are tamed,
the secret corners of the forest heavy with scent of many men and the view of
the ripe hills blotted by talking wires. Where is the thicket? Gone, where is
the eagle? Gone. The end of living and the beginning of survival." It
would be hard to find out such dawn to earth description of nature.
hates monopolies and knows no exception. It has always some levelling agency
that puts the overbearing, the strong, the rich, the fortunate substantially on
the same ground with all others" said Zarathustra.
is polycentric and multi-facet problem affecting the human existence. The
Stockholm Declaration of United Nations on Human Environment, 1972, reads its
Principle No.3, inter-alia, thus:
has the fundamental right to freedom, equality, and adequate conditions of
life. In an environment of equality that permits a life of dignity and well
being and bears a solemn responsibility to protect and improve the environment
for present and future generations." The Declaration, 'therefore, says
that' in the developing countries, most of the environmental problems are
caused by underdevelopments. The Declaration suggests to safe actions with
prudent care for ecological balance.
necessary to avoid massive and irreversible harm to the earthly environment and
strife for achieving present generation and the posterity a better life in an
environment more in keeping with the needs and hopes. In this context
immediately comes to mind the words of Pythogarus who said:
so long as man continues to be the ruthless destroyer of lower living beings,
he will never know health or peace. For so long as men massacre animals, they
will kill each other. Indeed, they who sow the seeds of murder and pain cannot
reap joy and love." Article 48-A in Part IV (Directive Principles) of the
Constitution of India, 1950 brought by the Constitution (42nd Amendment) Act,
1976, enjoins that "State shall endeavour to protect and improve the
environment and to safeguard the forests and wild life of the country."
Article 47 further imposes the duty on the State to improve public health as
its primary duty.
51-A(g) imposes "a fundamental duty" on every citizen of India to
protect and improve the natural "environment" including forests,
lakes, rivers and wild life and to have compassion for living creatures. The
word "environment" is of broad spectrum which brings within its ambit
"hygienic atmosphere and ecological balance." It is, therefore, not
only the duty of the State but also the duty of every citizen to maintain
State, in particular has duty in that behalf and to shed its extravagant
unbridled sovereign power and to forge in its policy to maintain ecological
balance and hygienic environment. Article 21 protects right to life as a
fundamental right. Enjoyment of life and its attainment including their right
to life with human dignity encompasses within its ambit, the protection and
preservation of environment, ecological balance free from pollution of air and
water, sanitation without which life cannot be enjoyed. Any contra acts or
actions would cause environmental pollution. Therefore, hygienic environment is
an integral facet of right to healthy life and it would be impossible to live
with human dignity without a humane and healthy environment. Environmental
protection, therefore, has now become a matter of grave concern for human
existence. Promoting environmental protection implies maintenance of the
environment as a whole comprising the man- made and the natural environment.
Therefore, there is constitutional imperative on the Central Government, State
Governments and bodies like Municipalities, not only to ensure and safeguard
proper environment but also an imperative duty to take adequate measure to
promote, protect and improve the environment man-made and natural environment.
urbanisation, explosion of population, over- exploitation of resources,
depletion of traditional sources of energy and raw materials, and the search
for new sources of energy and raw materials, the disruption of natural
ecological balances, the destruction of multitude of animal and plant species
for economic reasons and sometimes for no good reason at all are factors which
have contributed to environmental deterioration. While the scientific and
technological progress of man has invested him with immense power over nature,
it has also resulted in the unthinking use of the power, encroaching endlessly
on nature. If man is able to transform deserts into oasis, he is also leaving
behind deserts in the place of oasis. In the last century, a great German
materialist philosopher warned mankind : "Let us not, however, flatter
ourselves over much on account of our human victories over nature. For each
such victory nature takes its revenge on us. Each victory, it is true, in the
first place brings about the results we expected, but in the second and third
places it has quite different, unforeseen effects which only too often cancel
the first. Ecologists are of the opinion that the most important ecological and
social problem is the wide spread disappearance all over the world of certain
species of living organisms. Ecologists forecast the extinction of animal and
plant species on a scale that is incompatibly greater than their extinction
over the course of millions of years. It is said that over half the species
which became extinct over the last 2000 years did so after 1900. The
International Association for the Protection of Nature and Natural Resources
calculates that now, on average, one species or sub-species is lost every year.
It is said that approximately 1000 birds and animal species are facing
extinction at present. It is for this that the environmental questions have
become urgent and they have to be properly understood and squarely met by man.
Nature and history are two components of the environment in which we live, move
and prove ourselves. This Court in Sachindanand Pandey and Anr. v. State of
West Bengal and Ors. (AIR 1987 SC 1109) and Virender Gaur v. State of Haryana,
(1995 AIR SCW 306) has highlighted these aspects.
law is an instrument to protect and improve the environment and to control or
prevent any act or omission polluting or likely to pollute the environment. In
view of the enormous challenges thrown by the industrial revolution, the legislatures
throughout the world are busy in this exercise. Many have enacted laws long
back and they are busy in remodeling the environmental law. The others have
moved their law making machineries in this direction except the under-developed
States who have yet to come in this wave length. India was one of those few
countries which paid attention right from the ancient time down to the present
age and till date, the tailoring of the existing law to suit the changing
conditions is going on. The problem of law-making and amending is a difficult
task in this area.
are a variety of colours of this problem. For example, the industrial
revolution and the evolution of certain cultural and moral values of the
humanity and the rural and urban area developments in agricultural technology,
waste, barren or industrial belts; developed, developing and under-developed
parts of the lands; the rich and poor Indians; the population explosion and the
industrial implosion; the people's increasing awareness and the decreasing
State Exchequer; the promises in the political manifestos and the State's
development action. In this whole gamut of the problems the Tiwari Committee
came out with the date that we have in India "nearly five hundred
environmental laws" and the Committee pointed out that no systematic study
had been undertaken to evaluate those legislative developments. Some legal
controls and techniques have been adopted by the legislatures in the field of
Indian Environmental Laws. Different legislative controls right from the
ancient time, down to the modern period make interesting reading. Attention has
to be paid to identify the areas of great concern to the legislature; the
techniques adopted to solve those problems;
pollutants which required continuous exercises; the role of legislature and
people's participation outside. These are some of many areas which attract the
attention in the study of history of the Indian Environmental Law.
time immemorial, natural objects like rivers enjoyed a high position in the
life of the society. They were considered as Goddesses having not only the
purifying capacity but also self-purifying ability.
of the water of a river was considered a sin and it attracted punishments of
different grades which included, penance, outcasting, fine, etc. The earth or
soil also equally had the same importance, and the ancient literature provided
the means to purify the polluted soil. The above are some of the many
illustrations to support the view that environmental pollution was controlled
rigidly in the ancient time. It was not an affair limited to an individual or
individuals but the society as a whole accepted its duty to protect the
environment. The 'dharma' of environment was to sustain and ensure progress and
welfare of all. The inner urge of the individuals to follow the set norms of
the society, motivated them to allow the natural objects to remain in the
natural state. Apart from this motivation, there was the fear of punishment.
There were efforts not just to punish the culprit but to balance the
eco-systems. The noteworthy development in this period was that each individual
knew his duty to protect the environment and he tried to act accordingly. Those
aspects have been highlighted by a learned author C.M. Jariwala in his article
"Changing Dimensions of the Indian Environmental Law" in the book
"Law and Environment" by P. Leelakrishnan.
Economic and Special Council of the United Nations passed a resolution on 30th
July, 1968 on the question of convening an International Conference on problems
of human environment. In the United Nations Conference on Human Environment at
Stockholm from 6th to 16th June, 1972, proclamation was made on United Nations
on Human Environment. It was stated in the proclamation in these profound words:
is both creature and moulder of his environment which gives his physical
sustenance and affords him the opportunity for intellectual, moral, social and
spiritual growth. In the long and tortuous evolution of the human race on this
planet a stage has been reached when through the rapid acceleration of science
and technology, man has acquired the power to transform his environment in
countless ways and on an unprecedented scale. Both aspects of men's
environment, the natural and the man made, are essential to his well being and
to the enjoyment of basic human rights even the right to life itself.
protection and improvement of the human environment is a major issue which
affects the well being of people and economic development throughout the world,
it is the urgent desire of the peoples of the whole world and the duty of all
Governments." When the necessity to promote the environment turned grave,
doubt was expressed by some commentators whether the issue of the environment
would last. They have been proved wrong, since it is clearly one of the big
issues, perhaps the biggest issue of the 1990s. It is a big issue in political
terms, since protection of the environment is high on most people's priorities
for the 1990s. As a result political parties and Governments are falling over
each other in their eagerness to appear green, even if as yet their actions
rarely match their rhetoric. It is big in terms of the size of the problem
faced and the solutions required; global warning, the destruction of the ozone
layer, acid rain, deforestation, overpopulation and toxic waste are all global
issue which require an appropriately global response. It is big in terms of the
range of problems and issues air pollution, water pollution, noise pollution,
waste disposal radioactivity, pesticides, countryside protection, conservation
of wildlife the list is virtually endless. As observed by Simon Bell and Stuart
Bell in 'Environmental Law' :
the words of the White Paper on the Environment. This Common Inheritance (cm.
1200, 1990) the issues range 'from the street corner to the stratosphere.'
Finally, it is big in terms of the knowledge and skills required to understand
a particular issue. Law is only one element in what is a major
cross-disciplinary topic. Lawyers need some understanding of the scientific,
political and economic processes involved in environmental degradation. Equally
all those whose activities and interests relate to the environment need to
acquire an understanding of the structure and content of environmental law,
since it has a large and increasing role to play in environmental
protection." Apart from the direct cost to business of complying with
stricter regulatory controls, the potential liabilities for non-compliance are
also increasing. These liabilities fall into five general categories :
number of criminal offences for non-compliance with environmental legislation
is immense, and in recent years the regulation agencies have shown an increased
willingness to resort to prosecution.
prosecution is also a possibility. Fines will be the normal penalty, though in
a number of cases sentences of imprisonment have been imposed (there is
normally a potential personal liability for directors and senior managers).
Maximum fine levels have risen in recent years, as have actual levels of fines
Administrative sanctions :
most regulatory systems there is a range of options available to the regulator,
including variation, suspension or revocation of a licence. Since these steps
may lead to the closure of a plant, they are obviously of great importance.
Clean up costs :
most environmental legislation there is a power to clean up after a pollution
incident and receive the cost from the polluter or (in some cases) the
Civil liability :
is growing interest in the toxic torts, although many of the actions have in
fact been around for a long time. Many environmental actions rest upon strict
liability. Although liability may often be difficult to establish, the size of
claims may be very high indeed.
Adverse publicity :
practice the publicity attracted as a result of infringements of the law may be
as costly as any direct costs.
tide of judicial considerations in environmental litigation in India symbolizes the anxiety of Courts in
finding out appropriate remedies for environmental maladies. At global level,
the right to live is now recognized as a fundamental right to an environment
adequate for health and well being of human beings. (See World Commission on
Environment and Development - Our Common Future (1987). To commemorate the
tenth anniversary of the Stockholm Conference, the World Community of States
assembled in Nairobi (May 10-18, 1982) to review the action taken on to
implement Stockholm Declaration. It expressed serious concern about the state
of environment world wide and recognized the urgent need of intensifying the
effort at the global, regional and national levels to protect and improve it.
and pollution go together. As this Court observed in M.C. Mehta and Anr. v.
Union of India and Ors. (AIR 1987 SC 965), when science and technology are
increasingly employed in producing goods and services calculated to improve the
quality of life, there is certain element of hazard or risk inherent in the
very use of science and technology and it is not possible to totally eliminate
such hazard or risk altogether. We can only hope to reduce the element of
hazard or risk to the community by taking all necessary steps for locating such
industries in a manner which would pose least risk of danger to the community
and maximizing safety requirements.
observed in the United Nations Conference held at Stockholm in June, 1972,
economic and social development was essential for ensuring a favourable living
and working environment for man and for creating condition on earth that were
necessary for the improvement of the quality of life.
tragedy of the predicament of the civilized man is that 'Every source from
which man has increased his power on earth has been used to diminish the
prospects of his successors. All his progress is being made at the expense of
damage to the environment which he cannot repair and cannot foresee'. There is
increase in awareness of the compelling need to restore the serious ecological
imbalances introduced by the depredations inflicted on nature by man. The state
to which the ecological imbalance and the consequent environmental damage have
reached is so alarming that unless immediate, determined and effective steps
were taken, the damage might become irreversible. In his foreward to
International Wild Life Law, M.R.M. Prince Philip the Duke of Edinburgh said :
people seem to think that the conservation of nature is simply a matter of being
kind to animals and enjoying walks in the country-side. Sadly, perhaps, it is a
great deal more complicated than that................. As usual with all legal
systems, the crucial requirement is for the terms of the conversions to be
widely accepted and rapidly implemented......Regretfully progress in this
direction is proving disastorously slow." (See International Wildlife Law
by Simon Lyster, Cambridge, Grotius Publications Ltd. 1985 Edn.) The United
National General Assembly adopted on October 29, 1982, 'the World Charter for
Nature'. The Chapter declares the Awareness that :
Mankind is a part of nature and life depends on the uninterrupted functioning
of natural systems which ensure the supply of energy and nutrients.
Civilization is rooted in nature, which has shaped human culture and influenced
all artistic and scientific achievement, and living in harmony with nature
gives man the best opportunities for the development of his creativity, and for
rest and recreation." Towards the end of his reign, King Asoka in the
third century B.C. issued a decree that it has a particularly contemporary ring
in the matter of preservation of wild life and environment. He had written :
years after my coronation, I declare that the following animals were not to be killed,
parrots, mynas, the aruna, ruddy geese, wild geese, the nandimukha, cranes,
bats, queen, ants, terrapins, boneless fish, rhinoceroses..... and all
quadrupeds which are not useful or edible.....Forest must not be burned."
To protect and improve the environment is a constitutional mandate.
a commitment for a country wedded to the ideas of a welfare State. The world is
under an impenetrable cloud. In view of enormous challenges thrown by the
Industrial revolution, the legislatures throughout the world are busy in their
exercise to find out means to protect the world. Every individual in the
society has a duty to protect the nature. People worship the objects of nature.
The trees, water, land and animals had gained important positions in the
ancient times. As Manu VIII, page 282 says different punishments were
prescribed for causing injuries to plants. Kautilya went a step further and
fixed the punishment on the basis of importance of the part of the tree. (See Kautilya
III, XIX, 197) As observed by this Court in Rural Litigation and Entitlement
Kendra v. State of Uttar Pradesh (AIR 1987 SC 359), natural resources have got
to be tapped for the purpose of social development but one cannot forget at the
same time that tapping of resources has to be done with requisite attention and
care so that ecology and environment may not be affected in any serious way;
there may not be any depletion of water resources and long-term planning must
be undertaken to keep up the national wealth. It has always to be remembered
that these are permanent assets of mankind and are not intended to be exhausted
in one generation.
Academy Law Review at pages 137-138 says that a recent survey reveals that
every day millions of gallons of trade wastes and effluents are discharged into
the rivers, steams, lake and sea etc.
water pollution is a problem all over the world but is now acute in densely
populated industrial cities. Our country is no exception to this. Air pollution
has further added to the intensity and extent of the problem. Every year
millions of tons of gaseous and particulate pollutants are injected into the
atmosphere, both through natural processes and as a direct result of human
activity. Scientists have pointed out that earth's atmosphere cannot absorb
such unlimited amount of pollutant materials without undergoing changes which
may be of an adverse nature with respect to human welfare. Man in order to
survive in his planetary home will have to strike the harmonious balance with
nature. There may be boundless progress scientifically which may ultimate lead
to destruction of man's valued position in life. The Constitution has laid the
foundation of Articles 48-A and 51-A for a jurisprudence of environmental
protection. Today, the State and the citizen are under a fundamental obligation
to protect and improve the environment, including forests, lakes, rivers,
wildlife and to have compassion for living creatures.
learned Jurist has said, the Rig Veda praises the beauty of the dawn (usha) and
worships Nature in all its glory. And yet today a bath in the Yamuna and Ganga
is a sin against bodily health, not a salvation for the soul so polluted and
noxious are these 'Holy' waters now. "One hospital bed out of four in the
world is occupied by a patient who is ill because of polluted
water.....Provision of a safe and convenient water supply is the most important
activity that could be undertaken to improve the health of people living in
rural areas of the developing world." (W.H.O.) "Nature never did
betray. That heart that loved her." (Wordsworth). The anxiety to save the
environment manifested in the Constitution (Forty-Second Amendment) Act, 1976
by the introduction of a specific provision for the first time to "protect
and improve" the environment. Man is Nature's best promise and worst
enemy. If industry is necessity, pollution inevitable. Since progress and
pollution go together, there can be no end of progress, and consequently, no
escape from pollution. If industry is necessary evil, pollution surest
sufferance. Several enactments have been made to combat pollution.
is noun derived from the transitive verb "pollute" which means to
make foul or unclean, dirty, to make impure or morally unclean. In Halsbury's
Laws of England (Forth Edition, Volume 38, para 66) "pollution" means
the direct or indirect discharge by man of substances or energy into the
aquatic environment resulting in hazard to human health, harm to living
resources and aquatic ecosystems, damage to amenities on interference with
other legitimate use of water.
Divisional Forest Officer and Ors. v. S. Nageswaramma (1996 (6) SCC 442) it was
observed that the renewal of lease is not a vested right of the lessee. There
is a total prohibition against the grant of mining lease in a forest area
without concurrence of the Central Government. As was observed by this Court in
M.C. Mehta v. Kamal Nath and Ors. ( 1997 (1) SCC 388), our legal system based
on English Common Law includes the public trust doctrine as part of its
jurisprudence. The State is the trustee of all natural resources which are by
nature meant for public use and enjoyment.
at large is the beneficiary of the sea-shore, running waters, airs, forests and
ecologically fragile lands. The State as a trustee is under a legal duty to
protect the natural resources. These resources meant for public use cannot be
converted into private ownership.
aesthetic use and the pristine glory cannot be permitted to be eroded for
private, commercial or any other use unless the courts find it necessary, in
good faith, for public good and in public interest to encroach upon the said
cannot be disputed that no development is possible without some adverse effect
on the ecology and environment, and the projects of public utility cannot be
abandoned and it is necessary to adjust the interest of the people as well as
the necessity to maintain the environment. The balance has to be struck between
the two interests. Where the commercial venture or enterprise would bring in
results which are far more useful for the people, difficulty of a small number
of people has to be bypassed. The comparative hardships have to be balanced and
the convenience and benefit to a larger section of the people has to get
primacy over comparatively lesser hardship.
this background, the Environment Impact Assessment reports are of great
importance. The Council on European Economic Committee in their directive to
the member States highlighted objectives of such assessments as follows:
effect of a project on the environment must be assessed in order to take action
of the concerns to protect human health, to contribute by means of a better
environment to the quality of life, to ensure maintenance of the diversity of
species and to maintain the reproductive capacity of the eco-system as a basic
resource of life." A few decisions taken at the Convention on Biological
Diversity dated 5th June, 1992 would be relevant.
Preamble, inter-alia, contains the following:
that biological diversity is being significantly reduced by certain human
activities. Aware of the general lack of information and knowledge regarding
biological diversity and of the urgent need to develop scientific, technical
and institutional capacities to provide the basic understanding upon which to
plan and implement appropriate measures. Noting that it is vital to anticipate,
prevent and attack the causes of significant reduction or loss of biological
diversity at source. Noting further that the fundamental requirement for the
conservation of biological diversity is the in-situ conservation of ecosystems
and natural habitats and the maintenance and recovery of viable populations of
species in their natural surroundings." Articles 1, 6, 7 and 14(a) are
1: Objectives- The objectives of this Convention to be pursued in accordance
with its relevant provisions are the conservation of biological diversity, the
sustainable use of its components and the fair and equitable sharing of the
benefits arising out of the utilization of genetic resources including by
appropriate access to genetic resources and by appropriate transfer of relevant
technologies, taking into account all rights over those resources and to
technologies, and by appropriate funding.
6: General measures for conservation and sustainable use- Each contracting
party shall, in accordance with its particular conditions and capabilities:
develop national strategies, plans or programmes for the conservation and
sustainable use of biological diversity or adopt for this purpose existing
strategies, plans or programmes which shall reflect, inter alia, the measures
set out in this Convention relevant to the contracting party concerned; and
as far as possible and as appropriate, the conservation and sustainable use of
biological diversity into relevant sectoral or cross- sectoral plans, programmes
7: Identification and Monitoring Each contracting party shall, as far as
possible and as appropriate, in particular for the purposes of Articles 8 to
components of biological diversity important for its conservation and
sustainable use having regard to the indicative list of categories set down in
Monitor, through sampling and other techniques, the components of biological
diversity identified pursuant to sub-paragraph (a) above, paying particular
attention to those requiring urgent conservation measures and those which offer
the greatest potential for sustainable use;
identify processes and categories of activities which have or are likely to
have significant adverse impacts on the conservation and sustainable use of
biological diversity, and monitor their effects through sampling and other
techniques; and (d) maintain and organize, by any mechanism data, derived from
identification and monitoring activities pursuant to sub-paragraphs (a), (b)
and (c) above.
14(a): Impact Assessment and Minimizing Adverse Impacts- Each contracting
party, as far as possible and as appropriate, shall:
introduce appropriate procedures requiring environment impact assessment of its
proposed projects that are likely to have significant adverse effects on
biological diversity with a view to avoiding or minimizing such effects and,
where appropriate, allow for public participation in such procedures."
Sustainable development is essentially a policy and strategy for continued
economic and social development without detriment to the environment and
natural resources on the quality of which continued activity and further
development depend. Therefore, while thinking of the developmental measures the
needs of the present and the ability of the future to meet its own needs and
requirements have to be kept in view. While thinking of the present, the future
should not be forgotten. We owe a duty to future generations and for a bright
today, bleak tomorrow cannot be countenanced. We must learn from our
experiences of past to make both the present and the future brighter. We learn
from our experiences, mistakes from the past, so that they can be rectified for
a better present and the future.
cannot be lost sight of that while today is yesterday's tomorrow, it is
greenery of India should not be allowed to be perished, to be replaced by
deserts. Euthopia which at a point of time was considered to be one of the
greenest countries, is virtually a vast desert today.
Union Government framed National Forest Policy in 1988.
the basic objectives are very laudable, it is sad to note that it has virtually
been confined in papers containing it, and not much has been done to translate
them into reality. Nevertheless, it reflects anxiety of the Union Government to
protect and preserve natural forests with vast variety of flora and fauna,
representing biological diversity and genetic resources of the country.
is cast upon the Government under Article 21 of the Constitution of India to
protect the environment and the two salutary principles which govern the law of
principles of sustainable development and
needs to be highlighted that the Convention on Biological Diversity has been
acceded to by our country and, therefore, it has to implement the same. As was
observed by this Court in Vishaka and Ors. v. State of Rajasthan and Ors. (1997 (6) SCC 241), in the
absence of any inconsistency between the domestic law and the international
conventions, the rule of judicial construction is that regard must be had to
international convention and norms even in construing the domestic law. It is,
therefore, necessary for the Government to keep in view the international
obligations while exercising discretionary powers under the Conservation Act
unless there are compelling reasons to depart therefrom.
United Nations Conference on Human Environment held in Stockholm during June
1972 brought into focus several alarming situations and highlighted the
immediate need to take steps to control menace of pollution to the Mother
Earth, air and of space failing which, the Conference cautioned the mankind, it
should be ready to face the disastrous consequences. The suggestions noted in
this Conference were reaffirmed in successive Conference followed by Earth
Summit held at Rio-de Janeiro (Brazil) in 1992.
as the effect of Rule 24B of the Minerals Rules is concerned, it is to be noted
that Section 2(ii) of the Conservation Act rules out non-forest activities. The
Section begins with a non-obstante clause providing that notwithstanding
anything contained in any other law for the time being in force in a State, no
State Government or other authority shall make, except with the prior approval
of the Central Government any order of the nature enumerated in the provision. Section
3 of the Conservation Act deals with constitution of Advisory Committee and
Section 4 deals with power to make rules. Rules 4, 5 and 6 of the Forest
Conservation Rules, 1981 (in short 'Conservation Rules') are relevant. Rule 4
deals with procedure to make proposal by a State Government or their authority.
Rule 5 deals with the powers of the Committee to advise on proposals received
by the Central Government. The Committee referred to therein is the one
constituted under Section 3 of the Act. Rule 6 deals with action of the Central
Government on the advise of the Committee. Admittedly, the Central Government
has not accorded the approval for use of any forest land or any portion thereof
for being used for any non forest purpose. That being so, Rule 29(b) of the
Mineral Rules cannot be of any assistance to the company. So far as the order
dated 14.11.2000 in W.P. 337/2000 is concerned, it is clear therefrom that
de-reservation of forests, sanctuaries and national parks was prohibited.
exclusion of company's land in terms of the Notification under Section 35(4) of
the Act though same was being used for mining by the company, was not in order
to that extent.
as the letter dated 6th July, 1999 of the Government of Karnataka is concerned,
it does not in any way help the company and on the contrary makes its case more
brittle. A few paragraphs of the said letter need to be noted here:
x x x x
x x x "Considering the above and as the present lease will expire on
24.7.99, the P.C.C.F. has recommended for grant of temporary working permission
to the above company to carry out the mining activities for a period of 2 years
so as to avoid hardship to it, which is a Government of India Undertaking.
Further, Environment Impact Assessment and studies on impact of mining on flora
and fauna in this sensitive area is to be carried out by the reputed
Environmental Institute and Wildlife Institute respectively that is by
Environmental Research Institute, Nehrunagar, Nagpur (Maharashtra) and Wild
Life Institute, Dehradun (Uttar Pradesh). After these studies are conducted and
based on the recommendations to be made by these Institutes to minimize the
environmental damage it can be decided whether to allow the mining and renew
the lease or otherwise in favour of M/s. Kudremukh Iron Ore Company Ltd., in
this sensitive area of Western Ghat Region.
x x x x
x x x Under the circumstances explained above, I am directed to request you to
kindly communicate the approval of Government of India on the following
for renewal of lease of 1452.74 hectares of forest land which is already broken
up in favour of M/s. Kudremukh Iron Ore Company Ltd for a period of 20 years
with effect from 25.7.1999.
to grant temporary working permission in the already broken up area of 1452.74
hectares forest land to the above company to carry out mining activities for a
period of 2 years since the lease of forest land will expire on
24.7.1999." x x x x x x x It is an accepted fact that the Environment
Impact Assessment Reports of the two named institutes have not been obtained.
Therefore, in reality there was no Environment Impact Assessment report either
before the State or the Central Government. Further, the request of the State
Government was to grant temporary working permission in respect of already
broken up area, pending fulfillment of conditions enumerated.
to plea that in case of a renewal there is no requirement of compliance of
Section 2 of the Conservation Act, the stand is clearly untenable in view of
decisions in Ambica Quarry's case (supra) and Rural Litigation and Entitlement Kendera
v. State of U.P. ( AIR 1988 SC 2187) where at page 2201 it was observed that
'whether it is a case of first grant or renewal following exercise of option by
the lessee, the compliance of Section 2 of the Conservation Act is necessary as
a condition precedent'. It may be noted here that the area in question was
declared to be a reserved area in 1960 and in 1987 the Notification under
Section 35(1) was issued.
of significance that in the present case the Forest Advisory Committee under
the Conservation Act on 11.7.2001 examined the renewal proposal in respect of
the company's mining lease. It recommended that the mining may be allowed for a
period of four years i.e. upto the year 2005 by which time the weathered
secondary ore available in the already broken up area would be exhausted. The
Ministry of Environment and Forests deferred a formal decision on the said
recommendation as the matter was pending before this Court.
consideration of the materials on record we find no reason to vary the majority
view of the Committee, a statutory one when its findings and conclusions are
based on assessments of the factual aspects and after duly considering the
materials and Reports placed before it by the parties. We have also taken note
of the period indicated by the Forest Advisory Committee, which is also a
note of the factual background and the legal position highlighted above, we
think it proper to accept the time period fixed by the Forest Advisory
Committee constituted under Section 3 of the Conservation Act. That means
mining should be allowed till the end of 2005 by which time the weathered
secondary ore available in the already broken area should be exhausted. This
is, however, subject to fulfillment of the recommendations made by the
Committee on eco-logical and other aspects.
modalities as to how these have to be worked out shall be done in the manner
recommended by the Committee. It was submitted by the learned counsel for the
State of Karnataka that the recommendation made about transfer of buildings and
other infrastructure to the Forest Department of the State Government at book
value is not acceptable to it. This is a matter which can be considered by the
Committee on an appropriate motion being made by the State before it. The
modalities to be adopted to effectuate the order passed by this Court and
recommendations of the Committee shall be worked out by the Ministry of
Environment and Forests, the State Government and the company under the
supervision and guidance and monitoring of the Committee.
we part with the case, we note with concern that the State and the Central
Government were not very consistent in their approach about the period for
which the activities can be permitted. Reasons have been highlighted to justify
the somersault. Whatever be the justification, it was but imperative that due
application of mind should have been made before taking a particular stand and
not to change colour like a Chameleon, and that too not infrequently.
proceedings have been initiated against the company for alleged violation of
various statutes. These proceedings shall be considered by the respective
forums/Courts in their proper perspective, uninfluenced by any observation made
hereinbefore in this judgment.
Interlocutory application is disposed of accordingly.