Report No. 186

The Court further observed:

During the two decades from Stockholm to Rio, 'Sustainable Development' has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacity of the supporting ecosystems. 'Sustainable Development' as defined by the Brundtland Report means 'Development that meets the needs of the present without compromising the ability of the future generations to meet their own needs." We have no hesitation in holding that 'Sustainable Development' as a balancing concept between ecology and development has been accepted as a part of the customary international law though its salient features have yet to be finalized by the international law jurists."

In the same case, after referring to the Polluter Pays principle, the Supreme Court observed that remediation of the damaged environment is part of the process of 'Sustainable Development'. It then referred to the Precautionary Principle and the Polluter Pays Principle and New Burden of Proof and supported them on the basis of Article 21, 47, 48A and 51A(g) of the Constitution. It declared that they have become 'part of the environmental law of the country'.

In M.C. Mehta vs. Kamal Nath: 1997(1) SCC 388, the Supreme Court referred to the 'Public Trust' doctrine and stated that it extends to natural resources such as rivers, forests, seashores, air etc. for the purpose of protecting the ecosystem. It held that by granting a lease to a motel located at the bank of the river Beas which resulted in interference by the Motel, of the natural flow of the water, the State Government had breached the above doctrine. The prior approval granted by the Government of India was quashed, the Polluter Pays Principle was applied and the public company was directed to compensate the cost of restitution of environment and ecology in the area.

The adverse effect of 'Shrimp Culture' in the Coastal Zone notified under the Coastal Zone Regulation Notification dated 19.2.91, under the Environment (Protection) Rules, 1986, came up for consideration in S. Jagannath vs. Union of India: AIR 1997 SC 811. The employers were directed to close the Shrimp Culture industry in view of the ecologically fragile coastal areas and the adverse effect on the environment. The Court directed the employees to be paid six years' wages. It referred to Article 48A of the Constitution, the damage by aquaculture and shrimp culture in several States resulting in wells and streams in coastal areas becoming saline resulting in pure water not being available for irrigation and for drinking purpose.

The Court called for and considered the requests from the Marine Products Export Development Agency (MPEDA), and the State Government. It also considered the Report of the Central Pollution Control Board on 'Coastal Pollution Control', report of the Food and Agriculture Organisation (FAO) of the UN, the Alagiraswamy Report, another Report of team of scientists, the reports of the NEERI (Nagpur), report of Justice Suresh 37Committee, the report by Mr. Solon Barraclong & Andrea Finger-Stitil of UN, and then applied the provisions of the Water (Protection and Control of Pollution) Act, 1974, the Polluter Pays principle, the new onus of proof, and referred to the concept of sustainable development.

It finally directed the constitution of a high powered 'Authority' under that Act to scrutinize each and every case from the environmental point of view, under section 3(3) of Environment (Protection) Act and confer on the authority the requisite power under section 5. The authority should be headed by a retired Judge of the High Court and members having expertise in the field of aquaculture, pollution control and environment protection. The Government should confer powers under section 5 on the said authority to take appropriate measures. The Authority should implement the 'Precautionary Principle' and the 'Polluter Pays' principle. All aquaculture industries should be closed.

In the course of the discussion, the Supreme Court referred to Article 253 of the Constitution and the legislative powers of Parliament to make laws in respect of matters in the State List in the VII Schedule. The Court observed: (page 846)

(At this stage, we may deal with a question which has incidentally come up for our consideration. Under para 2 of the CRZ notification, (of the Government of India) the activities listed thereunder are declared as prohibited activities. Various State Governments have enacted coastal aquaculture legislations regulating the (industries) set up in the coastal areas.

It was argued before us that certain provisions of the State legislation including that of the 38State of Tamil Nadu are not in consonance with the CRZ notification issued by the Government of India under section 3(3) of the Act. Assuming that or so, we are of the view that the Act being a Central Legislation, has the overriding effect. The Act, (the Environment Protection Act, 1986) has been enacted under Entry 13 of List I of Schedule VII of the Constitution of India. The said entry is as under:

Participation in international conferences, associations and other bodies and implementing of decisions made thereat".

The preamble to the Act clearly states that it was enacted to implement the decisions taken at the United Nations Conference on the Human Environment held at Stockholm in June 1972. The Parliament has enacted the Act under Entry 13 of List I of Schedule VII read with Article 253 of the Constitution of India. The CRZ notification having been issued under that Act shall have overriding effect and shall prevail over the law made by the legislators of the States."

In M.C. Mehta vs. Union of India 1997(11) SCC 312, the Supreme Court dealt with 'ground water' management. It directed the Ministry of Environment & Forests, Government of India to appoint Central Ground Water Board as an authority under section 3(3) of the Environment (Protection) Act, 1986 permitting it to exercise powers for regulating and control of ground water management. Central Government should confer powers on that authority under section 5 to issue directions.

Use of pesticides and chemicals causing damage to health came up for consideration in Ashok (Dr) vs. Union of India: 1997(5) SCC 10. The Supreme Court directed a committee of senior officers to be appointed to look into the matter by gathering information through internet and take suitable measures in future in respect of any other insecticides and chemicals which is found to be hazardous for health.

In Animal and Environment Legal Defence Fund vs. Union of India :1997(3) SCC 549, the activity of fishing in reservoirs within the areas of the National Park, Madhya Pradesh, came up for consideration. The Court referred to the Wildlife (Protection) Act, and to permits issued thereunder, and observed that the livelihood of tribals should be considered in the context of maintaining ecology in the forest area. If there is shrinkage of forest area, the Government must take steps to prevent any destruction or damage to the environment, the flora and fauna and wild life under the Act, keeping Article 48A and Article 51A(g) in mind.

The Calcutta tanneries' discharge of untreated noxious and poisonous effluent into Ganga river came up for consideration in M.C. Mehta (Calcutta tanneries matter) vs. Union of India: 1997(2) SCC 411. Referring to the Water (Protection and Prevention of Pollution) Act, 1974 and the Environment (Protection) Act, 1986, and the Pollutor Pays principle, the Supreme Court directed closure of the tanneries, relocation and payment of compensation to the employees.

In M.C. Mehta vs. Union of India: 1997(11) SCC 327, in an elaborate judgment, the Supreme Court dealt with shifting, relocation, closure of 40hazardous/noxious/heavy/ large industries from Delhi, and to the utilization of land available as a result thereof and payment of compensation to workmen.

As to preservation of forests, a series of orders were passed by the Supreme Court in T.N. Godavarman Thirumalpad vs. Union of India 1997 (2) SCC 267; 312 etc. The case concerned the unlawful felling of trees in all forests in the country. Directions were given under the Forest (Conservation) Act, 1980. In 1997(7) SCC 440, the Court appointed a High Powered Committee.

The preservation of the tourists spots near Delhi at the Badkal and Surajkund lakes (located in Haryana, bordering Delhi) came up in M.C. Mehta (Badkal and Surajkund Lakes Matter) vs. Union of India 1997(3) SCC 715. The Supreme Court referred to Article 47, 48A and 51A(g) as well as Article 21, the concept of 'sustainable development' and the 'Precautionary Principle' and banned construction activities within the radius of 1 km from the Lakes.

It clarified that, in view of the reports of experts from NEERI and the Central Pollution Control Board, it was not advisable to permit large-scale construction activity in the close vicinity of the lakes because if such construction is permitted, it would have an adverse impact on the local ecology. It could affect water levels under the ground and could also disturb the hydrology of the area. NEERI had recommended a green belt of 1 km radius. The Court, however, clarified that where plans were already sanctioned, they should have the further clearance of the Central Pollution Control Board and the Haryana Pollution Control Board..

Preservation of Taj Mahal came up in M.C. Mehta (Taj Trapezium Matter) vs. Union of India 1997(2) SCC 353 = AIR 1997 SC 734. The Court, after accepting the report of NEERI, directed that, with a view to balance industry and environment, the coke/coal industry within Taj Trapezium Zone must changeover to the use of natural gas or otherwise the industries should stop functioning or shift. The Court gave directions regarding the compensation payable to workmen who may be discontinued pursuant to the directions. It relied upon the Dr. Varadarajan Committee Report of 1995.

Vehicular pollution in Delhi city, in the context of Article 47 and 48 of the Constitution came up for consideration in M.C. Mehta vs. Union of India 1998(6) SCC 60 and 1998(9) SCC 589. It was held that it was the duty of the Government to see that the air was not contaminated by vehicular pollution. The right to clean air also stemmed from Article 21 which referred to right to life. Lead free petrol supply was introduced in M.C. Mehta vs. Union of India 1998 (8) SCC 648 and phasing out old commercial vehicles more than 15 years old was directed in M.C. Mehta vs. Union of India 1998(8) SCC 206. These judgments are important landmarks for the maintenance of clean air in Delhi.

The Supreme Court observed that illegal mining in Doon Valley was to be assessed by a Committee appointed by the Court and matter had to be investigated. (T.N. Godavarman Thirumalpad vs. Union of India 1998(2) SCC 341 and 1998(6) SC 190). Felling and removal of felled trees in the State of J&K was prohibited by the Court in T.N. Godavarman Thirumalpad vs. Union of India: AIR 1998 SC 2553.

In regard to the poor efficiency of the Common Effluent Treatment Plants (EFTPs) at Patancheru, Bolaram and Jeedimetla in Andhra Pradesh, the Supreme Court, in India Council for Environ-legal Action vs. Union of India 1998(9) SCC 580, gave directions that the industries should not be allowed to discharge effluents which exceeded permissible levels and they should install systems which would release effluents upto the permissible levels. The areas concerned had showed tremendous ground water pollution by industrial effluents.

Similar directions were issued in case of UP industries which were discharging effluents beyond the permissible limits and directions were issued in World Saviour vs. Union of India 1998(9) SCC 247.

Issue of Urban solid waste management came up for consideration in Almitre H. Patel vs. Union of India 1998(2) SCC 416 and the Court appointed a committee to go into the questions.

The appointment of a Committee by the Supreme Court for management of hazardous wastes lying in the docks/ports/ICDS came up in Research Foundation for Science vs. Union of India 1999(1) SCC 223. The authorities having custody of wastes were directed not to release or auction the wastes till further orders. This was in the context of the Hazardous Wastes (Management and Handling) Rules, 1989.

Pollution from effluents from distillery attached to a Sugar industry came up for consideration in Bhavani River Sakthi Sugars Ltd. RE 1998(6) SCC 335.

In M.C. Mehta vs. Union of India 1998(2) SCC 435, the Court criticized the casual manner in which the Pollution Control Board gave consent. The Supreme Court referred to the constitution of the appropriate authority under section 3(3) of the Environment Protection Act for the National Capital Territory. Regarding such committees for other States, directions were again issued in T.N. Gudavarman Thirumalpad vs. Union of India 1999(9) SCC 151.

Right to clean air and the need for slowly eliminating 'diesel' for motor vehicles came up in M.C.Mehta vs. Union of India (matter regarding diesel emissions) 1999(6) SCC 9. Right to life was held to include right to good health and health care. M.C. Mehta vs. Union of India 1999(6) SCC 9.

Hot mix plants meant to supply hot mix for the runways in airports and the pollution by the smoke emitted by them came up for consideration in M.C. M`ehta vs. Union of India 1999(7) SCC 522.

Coastal Regulation Zone for Mumbai came up for discussion in P. Navin Kumar vs. Bombay Municipal Corpn 1999(4) SCC 120.

Deficiencies of the judicial and technical inputs in environmental appellate authorities were elaborately discussed in A.P. Pollution Control 44Board vs. Prof. M.V. Nayudu 1999(2) SCC 718. (This case has been elaborately discussed in Chapter II.) It referred to uncertainties in scientific evidence, to the Precautionary Principle, the new Burden of Proof and Polluter Pays Principle, and required a detailed study into the question whether environmental courts which should comprise not only of judges but also as to scientists/environmentalists to effectively assess expert evidence.

Preservation of the environment around Beas river in Himachal Pradesh came up for consideration in M.C. Mehta vs. Kamal Nath 1999(1) SC 702. Court's power to impose fine or special damages came up in M.C. Mehta vs. Kamal Nath 2000(6) SCC 213. Providing clean drinking water for Agra town came up for consideration in D.K. Joshi vs. Chief Secretary, State of UP 1999(9) SCC 578.

Need to bring about awareness of environmental issues came up for consideration in M.C. Mehta vs. Union of India 2000(9) SCC 411.

Denotification of Chinkara Sanctuary by the State Legislature under section 26A(3) of the Wildlife (Protection) Act, 1972 was upheld in Common Education & Research Society vs. Union of India 2000(2) SCC 599. The denotification resulted in permitting a restructured and controlled mining in an area of 321-56 km of Narayan Sarovar Chinkara Sanctuary. It was held that the economic development of an impoverished and backward area, was equally importan.- Environmental protection and economic development would have to be balanced.

The Supreme Court observed that the Pollution Control Board and their appointees or experts were accountable for the wrong advice. (Pollution Control Board vs. Mahabir Coke Industry 2000(9) SCC 344).

Three experts who gave a clean chit to certain industrial units, in respect of levels of emissions while advising the Pollution Control Board, were given show cause notices by the Supreme Court as their report was not in conformity with the evidence which showed existence of severe air pollution.

In the matter of criminal prosecution for offences relating to environmental pollution, the liberal attitude of the High Court in the matter of the quantum of punishment was seriously criticized by the Supreme Court in U.P. Pollution Board vs. Mohan Meakins Ltd. 2000(3) SCC 745. It was observed that the Courts could not afford to deal lightly with cases involving pollution of air and water. The Courts must share the parliamentary concern on the escalating pollution levels of our environment.

Those who discharge noxious polluting effluents into streams appear to be totally unconcerned about the enormity of the injury which they are inflicting on the public health at large, to the irreparable impairment it causes on the aquatic organisms, and to the deleterious effect it has on life and health of animals. Courts should not deal with the prosecution for pollution-related offences in a casual or routine manner.

There was a serious dispute about the correctness of a latter Report of the Central Pollution Control Board, in regard to pollution, as it contained certain adverse findings which were not pointed out by it in an earlier inspection Report. The Court then felt, in the facts of the case, that another independent agency should inspect the site, in the presence of the officers of the Central Pollution Control Board, and file a report. (Imtiaz Ahmed vs. Union of India 2000(9) SCC 515).

Processing of hazardous waste and finding out the number of industries releasing such waste came up for consideration in Research Foundation for Sciences vs. Union of India 2000(9) SCC 41. Directions were issued to the Union Government to file particulars.

One of the major irrigation projects in the country relating to construction of Dam on Narmada river came up for consideration in Narmada Bachao Andolan vs. Union of India 2000(10) SCC 664. We shall deal with this case in some detail. In that case there was a final award by the Tribunal constituted under the Inter-State Water Disputes Act, 1956 published on 12.12.79. The Dam was to be of the height of 455 feet. The Tribunal gave its directions regarding submergence, land acquisition and rehabilitation of displaced persons.

It stipulated that no submergence of any area should take place unless the oustees were rehabilitated. The Tribunal allocated the utilizable water stream to four States. The Narmada Control Authority (NCA) was directed to be constitute for implementation of the award. Eight years later, on 24.6.1987, the Ministry of Environment and Forests granted 'environmental clearance' to the Sardar Sarovar Project subject to the following conditions:

1. NCA will ensure that environmental safeguards are planned and implemented pari passu with progress of work on the project.

2. Detailed surveys/studies will be carried out as per the schedule proposed.

3. The rehabilitation plans which have to be drawn up should be completed ahead of the filling up of the reservoir.

The Supreme Court called for various reports. The construction was halted in May 1995 and the case was finally decided in the year 2000. (Narmada Bachao Andolan vs. Union of India 2000(10) SCC 664. The project involved construction of a network of over 3000 large and small dams. The three learned Judges were unanimous that the PIL of April 1994 was belated and could not be allowed to seek to stop the project itself. Two learned Judges found that Environmental Impact Assessment Notification under the Rules made under the Environment (Protection Act), 1986 was issued much later on 27.1.94 and was not retrospective and applicable for the purpose of grant of clearance by the Ministry earlier on 24.6.87.

The clearance given on 24.6.1987 in fact required that the NCA could ensure that 'environmental safeguard measures' be taken and therefore the project did not require any further environmental impact assessment to be done. Adverting to the Precautionary Principle laid down in Vellore Citizens' Welfare forum vs. Union of India 1996(5) SCC 647 and distinguishing A.P. Pollution Control Board vs. M.V. Nayudu 1999(2) SCC 718, the Supreme Court said that the Precautionary Principle and the Burden of Proof rul.- (which shifted the burden to the person or body which was interfering with the ecology, to prove that there is no adverse impact.- would apply to a polluting project or industry where the extent of damage likely to be inflicted, is not known.

But where the effect on ecology or environment on account of the setting up of an industry is known, what has to be seen is whether the environment is likely to suffer, and if so, what mitigative steps have to be taken to efface the same. Merely because there will be a change in the environment is no reason to presume that there will be ecological disaster. Once the effect of the project is known, then the principle of sustainable development would come into play and that will ensure that mitigative steps are taken to 48preserve 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.

In the present case, the dam is not comparable to a nuclear establishment nor to a polluting industry. No doubt, the construction of a dam would result in the change of environment but it will not be correct to presume that the construction of a large dam like this will result in an ecological disaster. India has an experience of 40 years in construction of dams. Those projects did not lead to environmental disasters but have resulted in upgradation of ecology. On the above reasoning, two learned Judges (out of three) felt that inasmuch as rehabilitation was provided by the award, there was no violation of Article 21.

The court issued directions as to allotment of land to oustees. There was no need to have another authority to monitor rehabilitation. The NCA could itself do this. Its decision could be reviewed by the Review Committee. (One of the three Judges however felt that environmental impact assessment was necessary and the construction work should stop till such assessment was made).

The provision of section 3 (2) (v) of the Environment Protection Act, 1986 and sections 2 (e), 2(k) and 17, 18 of the Water (Prevention and Control of Pollution) Act, 1974 came up for consideration again in A.P. Pollution Control Board (II) v. Prof. M. V. Naidu 2001(2) SCC 62. The court relied upon Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664 and A.P. Pollution Control Board (I) v. Prof. M. V. Naidu (1999) 2 SCC 710 and held that once the State Government issued an order prohibiting location of any industry within 10 km radius of the lakes which were providing drinking water to two cities, the State Government ought not to 49have granted exemption as it offended the precautionary principle.

Without permission of the Pollution Control Board, no industry could be established. While dealing with the construction of a hotel in Goa for a sea-beach resort, the Supreme Court in Goa Foundation v. Diksha Holdings Pvt. Ltd. 2001(2) SCC 97 held that economic development had to be maintained. The permission granted by the State Government was based upon a proper consideration of the Coastal Regulation Zone (CRZ) notification dated 19.2.1991 issued by the Ministry of Environment and Forests, Government of India under sections 3 (1) and 3 (2) (v) of the Environmental Protection Act, 1986 and Rule 5 (3) (d) of the Rules and approved by the Coastal Zone Management Plan of the State of Goa.

The plot of land allotted to the hotel fell within an area ear-marked as settlement (beach/ resort) by notification of the Governor of Goa under the Goa, Daman and Diu Town and Country Planning Act, 1974 and situated in category CRZ-III.

Need for balance between development and preservation of ecology was again stressed in Live Oak Resort (Pvt.) Ltd. v. Panchgani H.S. Municipal Council 2001(8) SCC 329.

With reference to vehicular pollution in Delhi and implementation of the orders for introduction of CNG, the court passed a series of orders in M.C. Mehta v. Union of India 2001(3) SCC 763, 756 and (2002) 4 SCC 356.

Smoking cigarettes in public places was prohibited by the Supreme Court in Murli S. Deora v. Union of India 2001(8) SCC 765. The right to clean air was part of the right to life under Article 21.

In Hinch Lal Tiwari v. Kamla Devi 2001(6) SCC 496 the Supreme Court held that healthy environment enables people to enjoy a quality of life which is the essence of the rights guaranteed under Article 21.

Concern for safety and well-being of wildlife in zoos came up for consideration in a case where a tiger was skinned alive in a zoo. The provisions of Article 48-A of the Constitution and the Wildlife (Protection) Act, 1972 (ss.38 (a), 38 (c), 38 (h) and 38 (j)), the provisions of the Forest Act, 1927 also were considered. (Navin M. Raheja v. Union of India 2001(9) SCC 762)

The Supreme Court pulled up the Madhya Pradesh State Pollution Control Board for not taking any interest and, in fact, acting negligently in the matter of discharging its functions since various industries were discharging pollutants in contravention of the provisions of the laws: State of M.P. v. Kedia Leather and Liquor Ltd. (2001) 9 SCC 605.

In Bittu Seghal v. Union of India (2001) 9 SCC 181 (Judgment dated 31.10.1996) the court gave a direction to the State of Maharashtra in regard to the protection of Dahanu Taluka, regarding CR.- notification of the Government of India dated 19.2.2001 and the Regional Development Plan as approved by the Government of India (subject to conditions) on 6.3.1996.

The court directed the Central Government to constitute an authority under section 3 (3) of the Environment Protection Act, 1986 to be headed by a retired Judge of the High Court and to confer on the authority powers required to protect the region, control pollution and issue directions under section 5 and for taking measures as stated in section 3 (2) (v) 2 (x) and (xii) of that Act. The said authority was to bear in mind the Precautionary Principle and the Polluter Pays Principle.

Cleaning and developing ponds which had dried up was part of the duty of the Government under Article 21. (Hinch Lal Tiwari v. Kamla Devi 2001(6) SCC 496).

Closure, shifting, re-location of polluting industries in the residential areas of Delhi came up again in M.C. Mehta v. Union of India 2002(9) SCC 481, 483 and 534.

Protection of monuments and religious shrines came up in Wasim Ahmed Saeed v. Union of India 2002(9) SCC 472. The court held that shifting of 24 licensed shops from the vicinity of the religions shrine of Dargah of Salim Chishti in Agra as recommended by the Archaeological Department, did not violate Article 21.

In M.C. Mehta v. Union of India 2002(4) SCC 356, the Supreme Court held that one of the principles underlying environmental law is that of sustainable development. The principle means that such development which also sustains ecology can take place. The essential features of sustainable development are (a) precautionary principle and (b) the polluter pays principle.

In N.D. Jayal vs. Union of India: (dt. 1.9.2003), the Supreme Court considered the issues arising out of construction of the Tehri Dam. One of the important issues related to environment impact assessment, rehabilitation of oustees etc.