11

ENVIRONMENTAL LAW
P Leelakrishnan*

I INTRODUCTION

JUDICIAL PROCESS in respect of the law on environment reached new

horizons in the year 2003. The courts invoked more provisions in the
Constitution so as to protect environment. The law of public nuisance was
widened to encompass many pollution control activities within its domain.
More thrust was given to criminal liability of polluters but at the same time
standards of procedure for criminal sanctions were tailored into the laws.
Disobedience to the orders of courts was not left out in a soft manner but was
duly dealt with by using the power of contempt With the same degree of
force and sensitivity the courts cracked down on corruption and manipulation
which was found to be plaguing the higher echelons of environmental
management. However, one cannot be fully satisfied to say that there was a
total commitment to the constitutional mandate. There are a few cases where
the courts were reluctant to interfere even when they were convinced of the
need to reiterate the law.

II ENVIRONMENT AND THE CONSTITUTION

Right-duty relationship and the concept of environment

What is meant by the expression 'environment'? In common parlance
physical surroundings constitute environment. The Environment (Protection)
Act, 1986 (EPA) renders an inclusive definition and it places no limit as to its
dimensions. 1 Two judgments are enlightening. One is K.M.Chinnappa v.
Union of India2 pronounced by the apex court and the other Vijay Singh
Punia v. RSBPCWP3 by the Rajasthan High Court. Both judgments quote
verbatim the reply of the Red Indian Chief when the White Chief in
Washington offered to buy the land of the Red Indians. The Red Indian chief

* M A (Alig); M L (Kerala); Ph D (London), Formerly Professor & Dean, Faculty of Law and
UGC Emeritus Fellow, Cochin University of Science & Technology; Lawyer, High Court of
Kerala
1 S. 2(a) defines "environment" as to include water, air and land and the inter-relationship
which exists among and between water, air and land, and human beings, other living
creatures, plants, micro-organism and property.
2 AIR 2003 SC 724 at 729-36.
3 AIR 2003 Raj 28.

www.ili.ac.in The Indian Law Institute

292 Annual Survey of Indian Law [2003

was not at all amused at the offer. According to him the sale would nullify
many facets of environment - the sacredness of the land, the freshness of the
air, the sparkle of water, the midst of dark woods, the music of the minds, the
songs of the humming insects and the fragrance of the flowers. Would
anybody depart from possessing such environmental wonders? The
illuminating words of the Red Indian Chief highlight how trees, beasts, rivers,
sky and other beauties of nature are closely-knit with the lives of men. The
Rajasthan High Court illustrates the inter-relationship as follows: 4

The concept of inter-relationship and inter-dependency which exists

between human beings, nature and other life forms, is the essence of
well-being of the human race. To illustrate the point, one may give
the example of a lonely earthworm. It works for human beings. It
enriches the soil and makes it fertile for them to reap the benefits

Would not 'hygienic atmosphere and ecological balance' be brought

within its ambit if the word 'environment' has wider dimensions?
Theoretically, it would be the duty of the state and citizens, to maintain
hygienic environment, though the state has a particular duty to forge its
policies to maintain ecological balance and hygienic environment. Explaining
the concept of right to life in article 21 of the Constitution, the Supreme Court
held in Chinnappa.5

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.

Hygienic environment is an integral part of the right to a healthy life. It

would be impossible to live with human dignity without a humane and healthy
environment. Both courts laid stress on the duties of the State and citizens
combined in articles 48-A, 47 and 51-A (g) of the Constitution of India.
"Hygienic environment is an integral part of healthy life. Right to live
with human dignity becomes illusory in the absence of humane and healthy
environment." So saying the Supreme Court in State ofM.P. v. Kedia Leather
& Liquor Ltd.b reiterated that the special laws on pollution do not impliedly
repeal the law of nuisance under section 133 of the Criminal Procedure Code
(Cr PC). The executive magistrate has power under the provision to take steps
to abate nuisance of pollution of water.
Environment protection, therefore, has now become a matter of grave
concern for human existence. The central government, state governments and

4 Id. at 293.
5 AIR 2003 SC 729 at 731.
6 (2003)7 SCC 389 at 394.

www.ili.ac.in The Indian Law Institute

Vol. XXXIX] Environmental Law 293

the local bodies have an imperative duty not only to ensure and safeguard a
proper environment but also to choose adequate measures to promote, protect
and improve the natural and man made environment.

Repugnancy between central and state laws

Laws bearing on environment may at times come into conflict with other
laws which the courts will have to examine and resolve. The question in MI
s. Narayana Saw Mill v. State of Bihar7 was whether there would be a conflict
between the Forest (Conservation) Act, 1980 (FCA) and the Bihar legislation
on sawmills. The FCA is a central legislation that prohibits use of forest for
non-forest purpose without prior approval of the central government. The
Bihar legislation is a state law with a system of licensing of sawmills and it
provides that a person is deemed to have been granted licence if his
application for licence was pending consideration beyond a period of 30 days.
No doubt, operation of sawmills is a non-forest activity. Will not the grant of
deemed licence under the Bihar law be contrary to the central law, which
makes prior approval mandatory for non-forest purpose? The court looked at
article 254 in the Constitution, which deals with the inconsistency between
parliamentary legislation and state laws. The FCA and the Bihar law do have
the same aim and object, namely, prevention of deforestation and regulation
of non-forest use. The court found that the provision in the Bihar law for
deemed licence gives a chance of using forestlands for non-forest purpose
immediately on the expiry of 30 days after filing the application for licence.
The court held that this would be against public policy and repugnant to the
central law, which makes prior approval by the centre mandatory before
granting licence.

Total prohibition of ivory trade justified

Does complete ban on import of ivory trade violate the fundamental right
to carry on any trade or business? This was the question in Indian Handicrafts
Emporium v. Union of India* when the 1991 amendment to the Wildlife
(Protection) Act, 1972 (WLPA) was challenged. The apex court made it clear
that under articles 19(l)(g), a trade dangerous to ecology could be either
regulated or totally prohibited. The fundamental rights to trade are to be
balanced with the demands of social interest. This balancing is reflected in
the directive principles in article 48-A and the fundamental duties in article
51-A(g) of the Constitution. According to the court, total prohibition of import
of African ivory had a laudable object. Killing Indian elephants and trafficking
in Indian ivory under the pretext of dealing in imported ivory is to be stopped.
The court observed:9

Animals play a vital role in maintaining ecological balance. The

amendments have been brought for the purpose of saving the species

7 AIR 2003 Jhar 31.

8 AIR 2003 SC 3240.
9 Id. at 3255.

www.ili.ac.in The Indian Law Institute

294 Annual Survey of Indian Law [2003

from extinction as also for arresting depletion in their numbers caused

by callous exploitation thereof.

The apex court followed Indian Handicrafts Emporium in the next case,
Bahrain Kumawat v. Union of India}0

Restriction on bona fide use - not arbitrary

The 1991 amendment to WLPA not only banned import of ivory but also
required that for mere possession of imported ivory, which is not for sale,
needs a certificate from the chief wild life warden. In Indian Handicrafts
Emporium11 it was contended that this violated article 14. After total ban
there is to be no trade. Therefore, there is no reason why a certificate of
possession is insisted on. The court pointed out that despite the legal ban, a
person might have recourse to illegal trading and this is to be stopped.
Parliament which enacted the law putting a complete ban on ivory trade is
competent to lay down the manner in which the law is not evaded by hidden
stratagems.12
A person who had imported ivory before 1991 had to keep it for himself
on a declaration by himself and on grant of ownership by the chief wild life
warden. This requirement is due to the fact that acquisition of an animal article
by an individual non-trader is presumed to be for his personal use while that
by the traders would be for the purpose of sale. The court said that the chief
wild life warden is not given unguided power to issue certificate. The
certificate should be issued on the basis of the requirement of bona fide
personal use. The decision is also subject to appeal or even judicial review.
In the court's view the trader must be dispossessed and the articles handed
over to a competent authority. Where a statute has been enacted in public
interest, restriction in the matter of possession of the property must be held to
be implicit. The prohibition in section 49(7) against possession of ivory
without certificate of ownership is to be so construed that the sellers and
stockists have no right to possess the articles. According to the court, the
vesting of the property in the state is to be implied. No question of
compensation arises.13

Ill PRESERVATION OF ECOLOGY

Open space and parks

'Open spaces are the lungs of a densely populated region. The judicial
stand against their conversion to other uses has been firm and consistent.
Whether it is for residential quarters, 14 or a site for an industrial

10 AIR 2003 SC 3268 at 3271.

11 AIR 2003 SC3240.
12 Id. at 3257.
13 Id. at 3267.
14 Damodar Rao v. Municipal Council, Hyderabad, AIR 1987 AP 170.

www.ili.ac.in The Indian Law Institute

Vol. XXXIX] Environmental Law 295

undertaking15 or even for a hospital complex16 the need to preserve the right
to health and hygiene demands that a change of use without taking care of its
adverse impact is not allowed. In one of the memorable decisions of the
recent past, the apex court had directed to dismantle the underground market
built beneath a garden of historical importance on the ground that such a
market would change the garden into a terraced garden.17
These landmark cases did not seem to have any sway in Bimal N. Desai
v. State of Karnataka1* where the Supreme Court lost the opportunity to
reiterate the law. The facts of the case show that part of a famous park was to
be cleared for a use not at all permitted under a specific statute. The
conversion was to take place at the very nose of the apex institutions within
the state. The attempt may appear to be quite intriguing to a student of public
law and jurisprudence in the light of clear and unambiguous dicta laid down
by the courts in the past. The Advocate General of the State justified the
clearance pleading that the constructions in this part of the park were
inevitable. According to him the conversion would cover only three to four per
cent of the total area of the park; there would be no further coverage of an
open area for any purpose; more trees would be planted; and the park
developed and nourished. The high court accepted this plea and declined to
quash the impugned notification. However, the court directed that no further
construction could be made 'without obtaining the clearance from the high
court'.
The Karnataka Government Parks (Preservation) Act, 1975 (KGPPA) was
enacted with the laudable object of preserving certain government parks in the
state. In 1983 a notification issued under the Act laid down specific limits of
the famous 'Cubbon Park'. The existing buildings such as the high court, the
vidhan soudha, the legislators* home, the raj bhawan, a tennis stadium and
NRDE campus with surrounding areas were all within these limits. The
impugned notification altered the area of the park. It was issued in 1998. It
required 2.25 acres for the extension of the legislator's home and for the
construction of a water reservoir. This notification was challenged on a
number of grounds: The reduction in the area was detrimental to a healthy
environment. Since the area of the park had been already delimited by the
1983 notification, the government could not delete any area subsequently.
Deletion, if made, would violate section 21 of the General Clauses Act. 19
Manifestly, the impugned notification was arbitrary and in disregard to the
environmental needs of the city.

15 V.Laksmipathy v.State, AIR 1992 Kant 57.

16 Bangalore Medical Trust v. Mudappa, AIR 1991 SC1902.
17 M.I.Builders Pvt.Ltdv. Radhe Shyam, AIR 1999 SC 2968.
18 (2003)5 SCC 395.
19 Power to issue, to include, to add to, amend, vary or rescind orders, rules or bye-laws -
Where, by any Central Act or Regulation, a power, exercisable in the like manner and
subject to the like conditions ( if any ), to add to, amend, vary or rescind any notifications,
orders, rules or bye-laws so issued.

www.ili.ac.in The Indian Law Institute

296 Annual Survey of Indian Law [2003

The Supreme Court adverted to section 4(2) of KGPPA and held that the
provision prohibits alienation of the land. It also held that the buildings
planned and constructed within the park are for a use in contravention of the
Act. Manifestly, the land use change under the impugned notification shall be
null and void. Contrary to the view taken by the high court, the Supreme Court
said that the contentions of the petitioner-appellants had some force. 20
However, the court thought it appropriate to keep the questions of law open.
It was reluctant to interfere with the decision saying that, the high court below
had a holistic view of the matter. Perusing the judgment closely one wonders
why the apex court seemed to have closed its eyes on the obvious violation of
law. Certainty of legal propositions is the key for the development of law.
Bimal Desai seems to put the clock backwards.

Taj heritage project

The apex court has been anxious to keep the Taj trapezium (TTZ) clean
and unpolluted for the last many years. This is clear from 1997 onwards when
it had directed to remove encroachments and polluting industries in the
vicinity of the Taj Mahal. 21 The court had appointed a monitoring committee
to report on the progress of the action. In the meantime there evolved the
controversial Taj corridor project, which proposed for a diversion of the river
Yamuna near the international heritage monuments.
The monitoring committee gave a warning. In its report the committee
asked that diversion and reclamation should be stopped till an environment
impact assessment was made. This report helped the court to get at certain
hard facts in M.C. Mehta v. Union of India on behalf of Monitoring
Committee22 where the diversion was challenged.
The court issued a direction for a CBI enquiry. The enquiry revealed that
the Agra Mission Management Board, which was empowered to take decisions
on the project, did not ever decide to commence work. What it had done was
only to ask for a techno-feasibility study and detailed project report. On
perusal it was found that there were corrections in the minutes. The
expressions "immediate commencement of the work" were added.
Apparently, this was done with an ulterior motive of starting the work soon
contrary to what the monitoring committee had asked. Forensic examination
revealed further corrections in the records of the government of U P as well
as in the files of the Ministry of Environment and Forest (MOEF). This was
another attempt to cover up the over-enthusiasm in starting the work before
getting the techno-feasibility study and project report. Needle of suspicion
was turned towards an array of dignitaries such as the Chief Minister of U P
and her secretary and the minister, secretary and under secretary in charge of
environment in the state and the secretary for environment in MOEF,
Government of India.

20 (2003) 5 SCC 395 at 398.

21 M.C.Mehta v. Union of India, (1997) 2 SCC 353.
22 JT2003 (Suppl 1)SC 391.

www.ili.ac.in The Indian Law Institute

Vol. XXXIX] Environmental Law 297

The inquiry disclosed more skeletons in the cupboard. The file was sent
to the chief minister through the environment minister stating that the chief
secretary had approved the expenditure. The fact was that the chief secretary
had no knowledge. Work was entrusted to the NPCC on an oral instruction
from the state environment secretary. No government department or agency
was made responsible for the work. An amount of Rs.17 crore was released
without the approval from the chief minister, the minister or the cabinet
committee. However, later, the minister for environment in U P sanctioned a
sum of Rs.20 crore. Both the minister and the secretary pressurized the under
secretary to tamper with the files in order to make interpolation in the official
records so that his subsequent note in the files matched, and was in line, with
interpolation made in the notes of the minister. The secretary, MOEF, also
appeared to have tampered with the file and tainted himself in the cover up. 23
In these revealing circumstances of tampering the records, spending money
without authority and cover up attempts of covert designs, the apex court had
no hesitation to direct the CBI to interrogate the persons involved and to
verify their assets. The court issued directions for immediate departmental
inquiries and also for inquiries against the managing director of NPCC. The
CBI was given the freedom to use its machinery against the chief minister and
environment minister in UP. It was made absolutely clear that in every inquiry
CBI should take into consideration the relevant laws such as IPC/Prevention
of Corruption Act, 1988 and Water (Prevention and Control of Pollution) Act,
1974. The compliance report had to be filed within four months.
The Taj corridor project had far-reaching environmental consequences.
Diversion of the river itself is the single factor that makes it essential for a
prior impact study. The facts of the case are that the work commenced under
the cover of the corrected minutes and without making such a study. Needless
to say that hasty steps ignored the safeguards specifically laid down by the
Agra Mission Management Board. There were allegations of dereliction of
official duties and wanton destruction of environmental and ecological
security. The apex court's interference was timely, signifying that such quick
action guarantees protection against manipulation and corruption leading to
environment vandalism.

Conversion: residential colony to commercial complex

Widening of the ring roads in a fast developing city like Delhi has a
public interest goal. In the process, there is an onerous responsibility to
remove encroachments on the roads. Relocation of the encroachers is a
problem to be dealt with. In 'B' Block Residents Welfare Association v.
DDA24 the Delhi High Court held it improper to relocate such encroachers in
a residential colony. Examining the relevant provisions of the Delhi
Development Act 1957(DDA) the court laid down the following propositions
regarding change in the land use. 25

23 Id. at 396, 397.

24 AIR 2003 Del.169.
25 Id. at 174, 175.

www.ili.ac.in The Indian Law Institute

298 Annual Survey of Indian Law [2003

1. Convenience shopping such as a retail service, repair or informal

shopping is permitted in residential areas under DDA. A huge
commercial complex to rehabilitate the displaced shopkeepers
would not come within the purview of convenience shopping.
2. There is nothing on record to show the existence of a policy
decision to rehabilitate mere encroachers. Their eviction should
take place according to law. The rehabilitation of such shopkeepers
should not be in violation of law, whether it is in the public interest
or not. Nonetheless, one public interest cannot be crucified for
achieving a purported public interest.
3. Construction of a large number of shops in a residential colony
would further disturb the ecological balance of the locality and
create such problems as noise pollution and traffic congestion.
Modification of development plan could be made only after
following the procedural and substantive requirements of section
HAofDDA.
4. The legal position is clear after the existing industries were closed.
The occupants of plots and owners of industries should apply afresh
and go through all procedural requirements for setting up of a new
industry, i.e., government permission, consent from the pollution
control board and sanction for electric and water facilities.
5. If there were vacant shops, the respondents are not debarred from
accommodating some of the oustees in accordance with law.

Slum improvement
The condition under which the people live in densely populated parts of
commercially advanced cities like Mumbai are pathetic. They live in tiny
structures without ventilation. Lack of sufficient number of toilets, inadequate
septic tanks, improper mismanagement of wastewater and non-availability of
streetlights intensify their woes. To protect such dwellers, the Maharashtra
legislation 26 enabled the state government to notify and declare the areas as
slums and take up measures for improvement and development. This Act was
of great concern in R.P. Thakurdin Pande v. Dy. Collector (ENC), Bandra21
The Act imposes on the landlords a duty to provide the people with minimum
basic facilities and requirements. If they fail the area can well be declared as
a slum. The Bombay High Court refused to nullify such a declaration.

IV PUBLIC NUISANCE

The law of public nuisance under section 133 Cr PC has a significant

history in India. It is an important tool for executive magistrates to adopt
immediate measures to remove nuisance in the first instance with a conditional
order and then with a permanent one. The courts have greened and

26 The Maharashtra Slums Areas (Improvement, Clearance and Redevelopment) Act, 1971.
27 AIR 2003 Bom 150.

www.ili.ac.in The Indian Law Institute

Vol. XXXIX] Environmental Law 299

strengthened this provision for the purpose of quick action to prevent pollution
and ecological maladies. Some high courts28 doubted whether the subsequent
enactments of water and air Acts which laid down a code of their own for
pollution control have not impliedly repealed the provision under the Cr PC
which had been used in the past for preventing the nuisance from pollution of
air and water.
In State ofM.P. v. Kedia Leather and Liquor Ltd 29 the apex court struck
a different note. It stressed the utility of the law of nuisance despite laws on
water and air pollution. The facts of the case show that the sub-divisional
magistrate had directed the respondents to close their industries and stop the
discharge of effluents causing public nuisance. The high court held that the
magistrate had no jurisdiction under section 133 of the Cr PC as there was an
implied repeal of the Code. When the question came before it, the Supreme
Court went into the entire gamut of public nuisance. The term 'nuisance' is
an inconvenience, which materially interferes with the ordinary physical
comfort of human existence. The object and purpose behind the section is to
avert imminent danger to the property and consequential nuisance to the
public. It involves a sense of urgency. If the magistrate fails to take recourse
immediately, irreparable damage would be done to the public. The court
observed that the provision does not deal with all potential nuisances, and on
the other hand applies when the nuisance is in existence.30 The proceedings
are rather civil than criminal in nature. In the court's view, in spite of the
provisions in the water and air Acts, section 133 of the Code can be called in
aid to remove public nuisance caused by water and air pollution and thus to
remedy the hardship to the general public.31
Implied repeal can be found only when the provisions of the later Act are
not inconsistent with, or repugnant to, the provisions of the earlier Act that the
two laws cannot stand together. If they can be read together and a harmonious
construction is possible, the doctrine of implied repeal is ruled out. The court
clarified how section 133 Cr PC and the provisions in the water and air Acts
operate in different fields and how they can stand together without any
conflict. It observed: 32

The area of operation in the Code and the pollution laws in question
are different with wholly different aims and objects, and though they
alleviate nuisance, that is not of identical nature. They operate in
their respective fields and there is no impediment for their existence
side by side. While ... the provisions of section 133 of the Code are
in the nature of preventive measures, the provisions contained in the
two Acts are not only curative but also preventive and penal. The

28 Tata Tea Ltd. v. State of Kerala, 1984 KLT 645 and Abdul Hameed v. Gwoliar Ryons
Silk Mg. Co., 1989 Cri LJ 2013.
29 (2003) 7 SCC 389.
30 Id. at 393.
31 Id. at 394.
n Ibid.

www.ili.ac.in The Indian Law Institute

300 Annual Survey of Indian Law [2003

provisions appear to be mutually exclusive and the question of one

replacing the other does not arise.

The Kedia Leather case puts the controversy over implied repeal of
section 133 of Cr PC at rest. By doing so it has strengthened the
environmental content in the existing provision enlivened by prior decisions
of the Supreme Court and the high courts. However, one doubts whether the
action against nuisance is limited to actual nuisance and not extended to
potential nuisance. One may not rule out occasions when a potential nuisance
turns out to be actual nuisance of intensive nature which could have been
conveniently avoided if timely preventive action was taken. The law of public
nuisance is yet to be exploited. The executive magistrates, the torchbearers of
action against public nuisance, have to rise above the influence of the
respective governments to which they belong and to act independently with the
detachment of a judge. It is necessary to fortify this remedy at the grass roots
by sensitizing the executive magistrates and the members of the general public
who become victims of environmental maladies

V CONTROL OF POLLUTION

Air pollution control areas

Control of pollution under the air Act has distinguishing features. (See
sections 19-20) The state government may declare air pollution control areas
"in such manner as may be prescribed". The consent from the board was
made preemptory before establishing or operating an industrial plant in this
area. No one is allowed to emit any air pollutant in excess of standards laid
down by the board. In Orissa State (Prevention and Control of Pollution)
Board v. M/s.Orient Paper Mills33 the respondents were charged for the
failure to comply with these provisions and for emitting an air pollutant in
excess of the toleration limits prescribed for suspended particular matter
(SPM). The sessions judge and the high court were unanimous in holding the
charge invalid. They held that in the absence of rules prescribing the manner
in which the air pollution control areas are declared, there can be no prima
facte case for violation of tolerance limits although the area as such was
declared by the state government as pollution control area. The apex court did
not agree. It observed: 34

Merely by absence of rules, the state would not be divested of its

powers to notify in official gazette any area declaring it to be air
pollution control area. In case, however, the rules have been framed
prescribing the manner, undoubtedly the declaration must be in
accordance with such rules.

33 JT2003 (3)SC 74.

34 Id. at 82.

www.ili.ac.in The Indian Law Institute

Vol. XXXIX] Environmental Law 301

Setting aside the order of the high court, the Supreme Court asked the trial
court to proceed with the matter and laid down the following proposition: 35

The area was notified as air pollution control area by the State
Government as authorized and provided by virtue of the powers
conferred under section 19 of the Act. The declaration is provided
to be made by means of a notification published in trie official
gazette. No other manner is prescribed nor exists. The relevant
notifications issued by the government cannot be said to be contrary
to any rules in existence as framed by the government.

The court noted that the respondent had knowledge of the notification and
had applied for consent of the board. The working and functioning of the Act
is meant for controlling the air pollution. It cannot be withheld and rendered
nugatory only for the reason that the rules prescribing the manner of
declaration were not framed. The area was notified by publication in an
official gazette although the manner of notifying the area was not laid down
by framing rules.36

Safeguards for collecting samples

The 'entry and inspection' clause in the water Act empowers the pollution
control board to enter and inspect any premises to oversee the implementation
of the law. By virtue of sub-section (2) of section 23 of the water Act, this
action is insulated by the safeguards as provided for search and seizure under
Cr PC, Should the same safeguards be extended to the process of taking
samples under the water Act?
The facts of the Gujarat decision in Dahyabhai Solanki v. State of
Gujarat3? show that the magistrate discharged the accused on the ground that
there was no independent witness at the time of taking samples. Manifestly,
one of the Cr PC safeguards was not followed. The Act was for prevention and
control of water pollution and for the maintenance and/or restoration of
wholesomeness of water. Provisions are made to prevent direct or indirect
entry into any stream, well, sewer or even on land of any poisonous, noxious
or polluting water. 38 For this purpose, the board may have to take samples
from any stream or well. The board's representative may go inside a plant or
out side a plant. Entry and inspection of a plant or seizure of any article from
the premises may be required for the purposes of detection of any offence
under the Act or for the purpose of performing any of the functions of the
board. For this taking or collecting samples may not necessarily be involved.
The provision of taking samples is a self-contained code with intention to
collect samples for analysis. Distinct and separate provisions are made in the

35 id. atS6.
36 ibid.
37 2003 Cri LJ 767.
38 Id. at 271,272.

www.ili.ac.in The Indian Law Institute

302 Annual Survey of Indian Law [2003

Act for entry or inspection. Separate forms of notices are prescribed for this
purpose. Therefore the court held that taking of samples need not be done with
all safeguards provided for entry and inspection of the premises of the plant.39
In the circumstance, the discharge of the respondents was set aside.

Location for stone crusher

A stone crusher causes pollution. Dealing with the question, the Supreme
Court pointed to the need for safer zones for their location. Can the minimum
distance fixed by the state government for their establishment be reduced?
The Punjab and Haryana High Court had to look into this question in Sukhdev
Singh v. State of Haryana^ In a previous case the division bench of the court
had directed to shift crushers to an identified crusher zone within one-
kilometer from abadi villages. The one-kilometer distance limit is not an
invariable rule if the crushers are set up and operated within identified safer
zones. The minimum distance was fixed after considering reports of expert
committees and factors like the overall improvement and incoiporation of new
pollution control measures. The court held that the fixation of such parameters
is a matter of policy and hence beyond the scope of judicial review.

Common effluent treatment plants

In Vijay Singh Punia v. RSBPCWP41 the Rajasthan High Court went into
ancient practices in India, the parameters of the expression 'environment' and
the use of the concept of sustainable development. As facts go to show, the
number of dyeing and printing units in the region increased within a short
period. They were discharging toxic wastes and effluents into the water
sources used for agricultural and drinking purposes. In spite of the directions
from the court, they could not take effective measures of prevention. Even the
state agency ( RIICO) could not do much in helping to install common effluent
treatment plants (CETPs). The pollution control board went to the extent of
directing the electricity board to disconnect the electricity from the defaulting
units.
Although it was seized of this serious situation the high court did not
order the closure of the units all of a sudden. Its view was that another chance
might be given to the units and the state instrumentality to take positive steps.
The printing and dyeing industry lies scattered. It may not be feasible for one
CEPT to cater to the requirement. Hence more CEPTs must be set up
depending upon the location of the industry. The court asked the industry to
pay pollution fine so that the money collected might be used for setting up
SEPTs.
It is possible to have two perspectives on the decision. The efforts of the
industry and the state agencies referred to in the judgment might have
influenced the liberal view that the industry should not be penalized for the
ecological degradation which could not be eliminated in spite of their earnest

39 Id. axil), 772.

40 AIR 2003 NOC 567 (P&H).
41 Siwra note 3.

www.ili.ac.in The Indian Law Institute

Vol. XXXIX] Environmental Law 303

efforts. The other perspective is that the industry cannot be absolved of the
liability of causing pollution and be allowed to go scot-free throwing judicial
strictures into winds. No doubt, the idea of sustainable development might
have moved the court when it willy-nilly permitted another effort for
establishing CEPTs. However, the validity of the pollution fine is in doubt in
view of the holding of the apex court in M.CMehta v. Kamalnath.42 Pollution
fine is a punishment, which can be imposed only after the person, causing
pollution is prosecuted and found guilty. The present case had an ideal
situation where exemplary cost could have been imposed after giving notice.

Noise pollution
The need for control of noise can never be overemphasized. Several
times in the past the apex court as well as the high courts had considered noise
pollution as a complex issue. Under EPA the Noise Pollution (Regulation and
Control) Rules was framed in 2000. Support from these rules was sought for
in Saha and Associates v. National Capital Territory of Delhi.43 In this case,
a firm of lawyers and solicitors alleged that continuous noise from the
workshop of car mechanics was disturbing their work. The fact was that
mechanics had encroached upon the parking spaces in the vicinity and were
causing the nuisance. The complaint to the police proved futile. The petitioner
wanted to get the public place free from encroachment and sought to press into
service articles 48-A and 51-A of the Constitution as well as the aforesaid
noise control rules in order to direct the authorities to take effective steps.
Perusing the pleadings, the Delhi High Court found that the respondents had
seized the vehicles and registered cases against encroachers. Hence, there was
no need for monitoring the writ petition further.

VI PROTECTION OF WILD LIFE

Ban on import of mammoth ivory

Mammoth is said to be a pre-historical animal, which had already
disappeared due to climatic conditions prevailing in Alaska and Siberia. Can
its fossil imported as 'mammoth ivory 1 in India be considered as Mvory
imported in India' and thus be prohibited under the 1991 amendment to
WLPA? The Delhi High Court held that it could be so considered and
prohibited. The appellants who were engaged in the business of carving
imported mammoth ivory went in appeal in Bahrain Kumawat v. Union of
India44
The apex court noted that the object of the amendment was to check over-
exploitation through international trade and to prevent clandestine dealings of
ivory extracted by killing Indian elephants. When it enacted the amendment,
Parliament was aware of the existence of different kinds of ivory. Still, it

42 AIR 2000 SC 1997.

43 AIR 2003 Del 73.
44 AIR 2003 SC 3268.

www.ili.ac.in The Indian Law Institute

304 Annual Survey of Indian Law [2003

mentioned only 'ivory' instead of specifying elephant ivory. Thus, the object
was to ban ivory of every description so that poaching of elephants could be
effectively curtailed. An article made of plastic would by no means resemble
ivory. Looking at the statute in its entirety, the court wanted to construe the
expression 'ivory' with reference to the subject-matter of the offence and the
object of the law it seeks to achieve. It said, "The purpose of the law is not
to allow the offender to sneak out the meshes of law."45 The court adopted
the doctrine of purposive construction. Parliament had made amendments to
WLPA not only for the purpose of banning trade in elephant ivory but also of
blocking the activities of poachers so that a complete prohibition in trade in
ivory is achieved. The purpose was to plug the loopholes so that while
purporting to trade in imported ivory and carrying therefrom, poaching of
Indian elephants and consequent illegal trade by extracting their tusks may not
continue. 46

Trapping of birds
The 1991 amendment to WLPA prohibited hunting of wild animals except
with permission and for specific purposes. In Chief Forest Conservator, Wild
Life v. Nisan Khan41 the Supreme Court extended the prohibition to trapping
of birds for the purpose of breeding in captivity and doing business. The court
observed: 48

When hunting of birds ... is prohibited, there cannot be any doubt

whatsoever that no person can be granted licence to deal in birds in
captivity which are procured by hunting which ...would also include
trapping. It is one thing to say that by reason of breeding of birds in
captivity their population is increased, but it is another thing to say
that the birds are trapped before they are made captive so as to enable
the licence to deal in them.

Before granting licence for dealing in birds, the licensing authority should
have regard to the source and manner in which supplies are made, the
implications of the licence on hunting and trade and the past transactions of
the licencee. If it is found that the licencee cannot carry on business merely
with birds already captured but necessarily with more birds to be captured,
there is no justification for granting licence.

VII PROTECTION OF FOREST

Deemed licence for saw mills

As seen earlier, the suitability of deeming licence under the Bihar
legislation was under challenge in M/s.Narayana Saw Mills v. State oj

45 Id. at 3272.
46 Id. at 3277.
47 AIR 2003 SC 1867.
48 Id. at 1870.

www.ili.ac.in The Indian Law Institute

Vol. XXXIX] Environmental Law 305

Bihar.49 Proceedings were initiated against the appellants for running the mill
without licence. The appellants challenged the proceedings on the ground that
they are deemed licencees as 30 days were over after they had sent the
application.
The court looked at the Indian scenario of forest protection that had
undergone a tremendous change during the last three decades. An amendment
to the Constitution had placed forest from the state list to the concurrent list.
The restriction in FCA included prevention on leasing of forestland or portion
thereof by the state without the prior approval of the central government. In
the Godavarman case 50 the apex court had directed that every state should
stop running sawmills without the prior approval. This development led the
Jharkhand High Court to hold that the deemed licence gives a chance of using
the forestland for non-forest purpose just after 30 days of filing an application
for licence. In the opinion of the court, the provision ought to have been for
deemed rejection. The deemed permission to operate a sawmill may lead to
use of forest land for non-forest purposes.51

Prior approval and mining after expiry of licence

Being a non-forest activity, mining the forest area can be allowed only
with the prior approval of the central government. A licencee is entitled to get
renewal if the area was already broken up before the FCA came into force.
However, the renewal is not automatic; it can be rendered only with prior
approval.
The question in K.M.Chinnappa v. Union of India52 was whether the
permission to continue mining in an area subsequently declared as a national
park was valid. The mining company contended that the licence had been
already issued under rule 24(B) of the Mineral Concession Rules framed under
the Mines and Minerals (Regulation and Development) Act, 1957 and hence
the company was entitled to get renewal for another 20 years. It was also
contended that the notification declaring the national park had excluded
specifically the area under licence. Further, the company had entered into a
contract with foreign buyers; the discontinuance of the mining rights would
stop the flow of valuable foreign exchange earnings. Should the approach to
mining activities be "dollar friendly" or "eco-friendly"?
The FCA makes prior approval mandatory in spite of the right to get
renewal under the mining rules. The provision says that notwithstanding
anything contained in any other law for the time being in force, no state
government or other authority shall make any order allowing the use of forest
for non-forest purpose except with prior approval. Admittedly, the central
government had not accorded prior approval. Hence, exclusion of the
company's land from the need to get prior approval was impermissible.^3 The

49 AIR 2003 Jhar 31.

50 AIR 1999 SC 1228,
51 Id. at 40.
52 AIR 2003 S C 724.
53 Id. at 738.

www.ili.ac.in The Indian Law Institute

306 Annual Survey of Indian Law [2003

Government of Karnataka in its communication had already laid emphasis on

the impact study of mining on flora and fauna in the sensitive area and
recommended only a temporary working permission for two years after the
expiry of the licence, to avoid hardship.
Further, the forest advisory committee under the FCA had recommended
renewal for only four years till the year 2005. The court did not find any
reason to disagree with these recommendations and hence it ordered that the
renewal for this period was subject to the recommendations made by the
committee on ecological aspects.54
However, the court noted that the state and central governments were not
very consistent in their approach about the period for which the activities
could be permitted. One cannot help sharing its concern on this ambivalence
when the court observed:35

Reasons have been highlighted to justify the somersault. Whatever

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.

Prior approval: role of state governments

Should one apply first to the state government when one desires to get a
licence to mine the forest area? Or should one apply directly to the central
government for prior approval? The petitioner in Selur Mines v. Government
of Tamil Nadu56 challenged the instructions of the respondent state
government that all particulars should be sent to it first and it would decide
whether the applicants are entitled to licence before forwarding the application
to the central government for prior approval.
The Madras High Court clarified that the grant of mining lease or
quarrying is the exclusive domain of the state government. Only when the
lease happens to be in respect of a forest area, prior approval of the central
government comes in the picture. When the state government is of opinion that
the lease cannot be granted even otherwise, it is perfectly justified in not
forwarding the application to the central government.57

Transit permit - sandalwood or sandalwood products?

The A P Sandalwood and Red Sandalwood Transit Rules, 1969 framed
under the Andhra Forest Act, 1967 make it necessary to have a permit for
transportation of sandalwood but not for transportation of its products. The
appellant, a licenced dealer and stockist in sandalwood, was charged for not
having a permit for transportation of sandalwood goods converted from
original sandalwood. In Tej Bahadur Dube (Dead) by heirs v. Forest Range

54 Id. at 739.
55 Id. at 739.
56 AIR 2003 Mad IS
57 Id. at 189, 190.

www.ili.ac.in The Indian Law Institute

Vol. XXXIX] Environmental Law 307

Officer58 the Supreme Court made a distinction between sandalwood and

converted sandalwood products for the purpose of requiring transit permit. In
the case, the appellant had obtained necessary permit for converting
sandalwood purchased by him into various types of handles, which are
ultimately used in other sandalwood handicrafts. According to the apex court,
once sandalwood is subject to a certain process from which sandalwood
product is lawfully obtained, such product ceases to be sandalwood. The
approach of the court is too legalistic. It did not take into account the
likelihood of the clandestine movement of sandalwood if the dealers of
sandalwood products were left out with no control.

Felling of trees and transit of forest produce: objective satisfaction

No doubt that a revenue divisional officer can well be competent under
law to grant a certificate for the rights and titles of individuals over the tree
growth in a land. However, in Sikender Ali Khan v. Conservator of Forest,
Adilabad 59 the AP High Court held that such a certificate is not conclusive
proof to determine the exact quantum of timber that should be allowed to be
felled in the lands and transported under a transit permit. According to the
court, it is the divisional forest officer who has to be satisfied how much forest
produce could be removed. In the case it was found that 227 logs of teak
timber were illegally added to the timber felled in the patta lands without the
knowledge of the forest officer.60

Lands used mainly for rubber only exempted

The Kerala Private Forests (Vesting and Assignment) Act, 1971 vested
the ownership of private forests with the state. However, it exempted from the
purview of state monopoly lands used for cultivation of rubber. Crops and
buds used for a purpose ancillary to the cultivation or for the preparation of
it for the market were also exempted. In Kujanam Antony v. State of Kerala™
the apex court held that in order to invoke such exemption the lands should
be shown to be principally used for rubber plantation. The appellant did not
prove this principal use. On the contrary, there was evidence that the appellant
was cultivating tapioca. Needless to say that cultivation of tapioca was not a
purpose ancillary to the cultivation of rubber which was exempted.

VIII CRIMINAL LIABILITY

Negligence of forest officers

Failure of forest officers to report illegal felling and theft of wood for
commercial purpose is an offence under a state law on corrupt practices. The
scope of taking action against this offence was examined in State ofHimachal
Pradesh \. Rasheed Ahmed.62 A range officer and a guard in a particular site
58 (2003)3 SCC 122.
59 AIR 2003 AP 345.
60 Id. at 350, 351.
61 (2003) 3 SCC 221.
62 2003 Cri LJ 2591.

www.ili.ac.in The Indian Law Institute

308 Annual Survey of Indian Law [2003

of illegal felling were charged both under section 13(2) of the Prevention of
Corruption Act, 1988 (PCA) and under section 14 of the of Himachal Pradesh
Prevention of Specific Corrupt Practices Act, 1983. The special judge
discharged the accused persons as he found no ground for placing their acts
of omission under the provisions with which the charges were framed. The
high court agreed with the special judge that PCA was not applicable; but it
said that Himachal Pradesh law was applicable. On facts it could not be
presumed that the officers did not detect the large scale felling and removal.
The felling was done for commercial purpose. The trees could be used for
extracting katha, a commercial commodity.63 According to the Himachal High
Court, the court below could have framed a charge under the section 14 of the
state law if there were suspicion of the commission of the offence. The case
was remanded for framing of fresh charge by a competent court.

Confiscation of vehicle
In Jagabandhu Mahanta v. Bijay Kumar64 the question was whether a
judicial magistrate could release a vehicle and dispose of the property after the
forest department had taken steps for confiscation proceedings. The police
seized a jeep carrying teak sleepers for the offence of dealing in wood without
permit and handed it over to the forest department, which initiated
proceedings for confiscation. The forest officer had intimated that the
authorised officer started the confiscation proceedings under the state forest
Act. The Orissa High Court held that in such a position the magistrate had
jurisdiction neither to direct release of the vehicle in exercise of powers under
section 451 Cr PC nor to deal with the disposal of property under section 457
Cr PC. 65

Confiscation of vehicle carrying contraband forest produce

When can a vehicle transporting contraband forest produce be
confiscated? Can it be done even if the owner was not aware of illegal
transactions in which the driver of the vehicle was involved? Can a seized
vehicle be confiscated only after instituting a criminal prosecution of a forest
offence? Can a lesser amount be recovered from the owner in lieu of
confiscation? In Gopeswar Saha v. State of Tripura66 the Gauhati High Court
examined the provision of the Indian Forest Act, 1927 before it dealt with
these questions. On getting information of a forest offence, not only the forest
produce but also tools, boats and carts, with which the offence is committed
can be seized. Adding 'vehicle' to this category, the Tripura amendment
authorized confiscation of vehicles used for committing the offence. In the
present case the charge was that the owner used his vehicle for carrying
contraband forest produce. He pleaded that the driver acted on his own and he

63 Id. at 2593.
64 2003 Cri LJ 2679.
65 Id. at 2857, 2858.
66 2003 Cri LJ 2178 ( Agartala bench).

www.ili.ac.in The Indian Law Institute

Vol, XXXIX] Environmental Law 309

had no knowledge whatsoever. The State had given several opportunities to

the owner to adduce evidence. However, he did not produce any evidence to
show that he had instructed the driver not to carry contraband goods. Nor did
he examine even the assistant who accompanied the vehicle. The court held
that it could not be presumed that the driver carried illicit timber without the
owner's consent and that the forest officer's finding against the owner could
not be perverse. It was sufficient that the forest officer was satisfied that a
forest offence of carrying illicit timber was committed. The satisfaction of the
officer could be traced to the show cause notice. Reading "constructive
consent" of the owner, the court held that the confiscation in its entirety was
not necessary. However, for meeting the ends of justice 25 per cent of the
market value of the vehicle with an additional cost of Rs.1000/- could be
assessed for confiscation.67

Opportunity before confiscation

In Chaudhary Ram v. State ofH.P.6* the Himachal Pradesh High Court
went in a different line and absolved the liability of the owner. Section 52-
A of the Indian Forest Act was inserted by the Himachal Pradesh State
amendment. It was made specifically clear that two conditions are to be
satisfied to confiscate a vehicle. They are (1) a notice in writing to the
registered owner if practicable and (2) the finding that the vehicle was used
for illicit transportation of forest produce with the connivance of the owner or
his agent. The court found that the notice served on the owner did not specify
the particulars regarding the involvement of his truck in the commission of the
offence. The notice did not mention when, where and from whose possession
the vehicle was seized by the police. The copy of the FIR was not enclosed.
The notice was not clear. It was not devoid of ambiguity. The owner had
denied the involvement. He said that neither had he knowledge of the use of
the vehicle nor had he given consent for engaging the vehicle for illegal
transactions. The truck was seized admittedly at a time when nobody was
occupying it. In the circumstances, the court held that the conclusions by the
authorized officer and the sessions judge on the liability of the owner was
based on 'no evidence'. The confiscation was unsustainable and was set
aside.69

No liberal approach to confiscation

Is a liberal approach to wildlife offenders desirable? In Ayyub v. State oj
Rajasthan10 the question was whether a bank guarantee of Rs.40,000/- could
be insisted on by the magistrate for releasing a vehicle that carried fish in
violation of Wild Life (Protection) Act, 1972. The Rajasthan High Court had
a sterner view. The main object of the Act was to preserve and protect wild

67 Id. at 2179-81.
68 2003 Cri 1J 2856.
69 Id. at 2857, 2858.
70 2003 Cri U 2954 (Rajastan - Jaipur bench).

www.ili.ac.in The Indian Law Institute

310 Annual Survey of Indian Law [2003

animals, birds and plants. A liberal approach in respect of the property seized
would not only frustrate the provisions but also perpetuate the commission of
more offences defeating the very object for which laws on forest or wild life
were framed. The vehicle can be released while the case is pending. But the
court said that furnishing a bank guarantee should be the minimum
condition.71

Possession of rose wood without licence

Can a mere possession of forest produce invite penal consequences if it
is not put to commerce or trade? Lakshminarayana v. State of Karnataka12
dealt with this question. The Karnataka forest law was framed for regulating
sale, purchase, cutting or transport of blackwood or bite trees and for
regulating movement of forest produce. The Karnataka High Court found that
the rules under the Act do not prohibit possession of rose wood even if one
has no valid licence or permits. Therefore, it held that mere possession does
not amount to contravention of a rule regulating movement. In the instant case
there was no movement or transport but still the property was confiscated.
According to the court confiscation was improper and the properties seized
should be released to the petitioner.

IX STRICT LIABILITY FOR DAMAGES

Electrocution and award of compensation

The Public Liability Insurance Act, 1991 (PLIA) was enacted to provide
immediate relief to the victims of accidents that occur while they handle
hazardous substances. In M.P. State Electricity Board, Jabalpur v. Collector,
Mandle13 the petitioner power board challenged the award of compensation
for a death by electrocution on the ground that electricity is not a hazardous
substance as defined under PLIA. Electricity is hazardous when it is not used
with proper care and caution, but it is not a substance. The court repelled the
plea and held that electricity consists of electron, which is a substance and
hence electricity itself is a substance.
'Hazardous substance* is defined under EPA as any substance which by
reason of its chemical or physio-chemical properties or handling is liable to
cause harm to human beings or the environment. According to the court,
physio-chemical properties of electricity are definitely liable to cause harm to
human beings, other living creatures, plants and micro-organisms. Hence
electricity is to be regarded as a hazardous substance under EPA. It went on
to say that once when something is hazardous irrespective of quantity, it is not
necessary for the central government to issue a notification under section 2(d)
of PLIA fixing its quantum that makes it hazardous. The court observed:74

71 Id. at 2955, 2956.

72 2003 Cri LJ 2087. Compare and contrast with the Indian Handicrafts Emporium case,
supra note ] 1.
73 AIR 2003 M P 156.
74 Id.at 160.

www.ili.ac.in The Indian Law Institute

Vol. XXXIX] Environmental Law 311

Whatever irrespective of proportion is hazardous has to be treated as

hazardous one. Some article may not be hazardous in small quantity
but electricity is not one such article.

The court said that only those hazardous substances, which may be
dangerous on exceeding a limit or quantity, need be specified by a notification
under PLIA. In the case of electricity the question does not arise. It is so
hazardous that the potentialities of the hazard need not be quantified and
notified.
PLIA speaks about strict liability without fault in case of accidents
involving death due to hazardous substances. It was not necessary for the
claimant to prove a wrongful act, neglect or default of any person. Similarly,
the absence of a policy by the government or the electricity board on these
questions will not affect the liability of the owner whose aim is to generate,
transform and transmit electricity. The owner cannot escape from liability
saying that there was no policy.

X JUDICIAL REVIEW

A contempt of superlative degree

Strange are the ways of flouting, and paying no respect to, orders and
directions of courts in environmental questions. In M.C Mehta v. Union of
India15 the apex court wanted to strike an effective blow to this trend. An
expert committee of the Central Pollution Control Board (CPCB) found that
hot mix plants belong to the category of hazardous industries. According to
the master plan, all hazardous/noxious industries have to be shifted out from
the Union Territory of Delhi.
The board issued notice of shifting*to 43 plants. In line with this notice,
the court directed that those who were not relocated should stop operation
from 28.2.1997. Being not included in the list of 43 plants, the respondent unit
continued to operate its plant within the area. However, the court clarified
later that this unit should also fall in line with others. The regional town
planner had even allotted an alternative site for relocation of the unit.
However, these measures did not deter the plant from stopping the operation
in its old location. The Delhi Pollution Control Committee (DPCCjl to whom
the CPCB had delegated its powers under section 31-A of the Air Act
interfered and ordered it to cease the operation forthwith. It sealed the unit.
The Delhi High Court stayed the order of sealing of the unit but made it
categorically clear that this would not affect the order of closure of the
offending unit. The Supreme Court was surprised at why the high court had
admitted the writ petition. It asked the high court to dispose it off within two
months. It is interesting to note that all these days the unit continued operating
its plant with impunity. In view of these developments, the apex court had no

75 (2003) 5 SCC 385.

www.ili.ac.in The Indian Law Institute

312 Annual Survey of Indian Law [2003

other way except issuing orders for urgent action against the unit. In the
meantime the high court dismissed the writ petition.
The Supreme Court issued contempt notice on 25.11.1999. In the reply
the respondent found fault with the orders of the apex court saying that they
were passed without looking into the complete facts. It was also alleged that
the court passed the orders at the instance of interested persons and at the
behest of DPCC. The court took a serious view and held that these statements
are 'all the more contemptuous'. To say that all the orders passed by the court
were at the behest of DPCC and not in the public interest is itself
contumacious. The court noted that there was not even a whisper of an
apology, much less unconditional apology, not to speak of remorse and
contrition. 76 The contention of the unit was that it was excluded from the 43
plants to be dismantled. This was contrary to facts. As pointed out earlier, the
Supreme Court included it in a subsequent order and even asked the state
government to make available a re-location site, which was since then granted.
The court observed: 77

It is apparent that the contemner was taking the Court for a ride by
raiding one court or the other deliberately with oblique motive to
circumvent the court's orders thereby salvaging himself by feigning
ignorance of this court's order which was in the knowledge of the
contemner.

The respondent contended that neither did he get a copy of the order of
the Supreme Court nor did he know of the allotment of the alternative site. In
the court's view, this statement was false and filing false affidavit/statements
would amount to criminal contempt. Holding that the apology could not be
accepted in such instances, the court observed:78

The conduct of the contemner, as recited above is beyond condonable

limit. It is now a well-settled principle that an apology is not a
weapon of defense to purge the guilt of the contemner. At the same
time, the apology must be sought at the earliest opportunity.

The apology tendered by the respondent was at a belated stage. It was to

escape punishment. In one part of the affidavit he stated that he had not
committed any contempt and defended his action. In another he tendered
unconditional apology. Therefore, the court held that the apology so tendered
by the contemner was not a product of remorse or contrition.
The contemptuous act of the respondent was of grave nature. The act was
not only in violation of the court's orders but also of the law relating to air
pollution. The court observed:79
76 Id. at 385.
77 Id. at 386.
78 Id. at 386, 387.
79 Id. at 387,388.

www.ili.ac.in The Indian Law Institute

Vol. XXXIX] Environmental Law 313

The pollution of air is causing deleterious effect on the health of

entire society. We have also considered the larger interest of the
society and orders passed by this court in the interest of the society
at large. Liberty of an individual, which is so dear to every citizen of
this country, must necessarily be balanced with the duties and
obligations towards his fellow citizens. Every citizen of this country
has freedom to breathe unpolluted air. In air pollution related matter
or in any matter relating to environmental hazard, the orders of the
highest court are disobeyed as sought to be done in this case, the
health of the entire society is at risk. We are, therefore, convinced to
send strong signal by imposing exemplary punishment so that like-
minded people would not repeat and such recurrence thwarted.

The court punished the respondent to one-week's simple imprisonment, A

cost of Rs. one lakh was also levied as fine. Half of this amount was ordered
to be paid to DPCC and the other half to the amicus curiae who assisted the
court. To those polluters who flout the orders of court this is a strict warning.

PIL and its goal

Good faith is a condition precedent for filing a public interest litigation
that seeks to redress a genuine grievance of the general public. It is true that
Sukdev Singh v. State of Haryana*0 a PIL, had dimensions of an
environmental problem. However, the Punjab and Haryana High Court found
that there were mala fides in filing the petition to reduce the fixed one-
kilometer distance to 400 for the operation of stone crushers. The obvious
intention was to stall the setting up of new stone crushers. No wonder the
court rejected the petition and recorded its displeasure for the conduct of the
petitioners.
In another PIL, Ambika Prasad v. Nehru Paribesh Surakshya
Committee *x the Orissa High Court had approved the siting criteria for stone
crushers. However, it held that a unit within 1000 meters from a village
boundary and within 500 meters from a school where young children were
prosecuting their studies would not be conducive to these criteria. The prayer
was to review this decision of the court. The court refused to review it and
held that it had kept in view the aims and objectives of EPA vis-a-vis the
safety and well-being of common citizens, mostly tender aged pupils.

Closure of industry: rules of natural justice

The power to issue directions under section 5 of EPA is a coercive power.
A direction can be issued for prohibition, stoppage or regulation of an
industry, operation or process or for prohibition or stoppage or regulation of
supply of any service such as electricity or water. This power is at present
exercised by various authorities of the central and state government either by

80 AIR 2003 NOC567 (P & H).

81 AIR 2003 Ori 25.

www.ili.ac.in The Indian Law Institute

314 Annual Survey of Indian Law [2003

delegation of power under EPA or on the strength of the amendment of the air
and water Acts. Rule 4 of the EPA rules provides that an opportunity shall be
given to the industry to file objections before the power to issue directions is
exercised. The question in the Brindavan Phosphates Pvt. Ltd. v. KSPC
Board, Bangalore*2 was Whether the direction for the closure of the
petitioner's industrial establishment could be valid without an opportunity of
being heard. The Karnataka High Court held that with eight years of
experience under a valid licence and consent, the petitioner had a right to be
heard before the extreme step was taken. Rule 4(5) of EPA rules dispenses
with the opportunity when it is found to be not expedient in view of the
likelihood of the grave injury to the environment. The court did not agree to
validate the action under this provision. Affording an opportunity is the rule;
denial is only an exception. The sub-rule mandates the compulsory need to
state reasons why the opportunity is denied. The court observed:83

The reasons to be stated in such an order is not that there is a

likelihood of greater injury to the environment but the reasons should
disclose that such a grave injury to the environment would occasion
by the conduct of the petitioner and therefore, the said power is
exercised.

The impugned order apprehended that there is likely to be a grave injury

to the surrounding environment and thus warrants urgent action to prevent the
petitioner from causing further damage to the environment, health, property,
soil and ground water. However, there is nothing in the order to show what
that grave injury was and which act of the petitioner had resulted in grave
injury. Merely repeating the words in the rules would not constitute the
reasons, which are to be recorded in writing by the authorities before
exercising the power of dispensing with the opportunity. The order of closure
without the opportunity could not be salvaged under the 'expediency' clause.
So holding, the court considered the order of closing the establishment as a
notice rendering an opportunity to the petitioner to file objections. The court
also directed the authorities to give the petitioner a personal hearing and
dispose of the proceedings within 45 days from the date of filing the
objections.

82 AIR 2003 Kant 476.

83 Id. at 479.

www.ili.ac.in The Indian Law Institute