ENVIRONMENTAL LAW: PART C

Problem 1:

There was a leakage of Chlorine Gas from Shriram Food and Fertilizer Company resulting
in death of one person and posing threat to life and health of the workers and residents
of the area. A writ petition was filed before the Supreme Court for a direction to the
company to pay compensation to the victims of environmental pollution caused by it. The
company argued before the court that it is not liable to pay compensation in such cases.

Solution:

Facts of the Case Shriram Foods and Fertilizer Industries and Ors

Shriram foods and fertilizers is a subsidiary of Delhi Cloth Mills Ltd., located in a thickly
populated area of Delhi. On 04-12-1985, there was a leakage of Oleum gas from the
Sulphuric acid plant resulting in the death of an Advocate in the Tis Hazari Court, Delhi
and injuries to several others.

Contentions of the Petitioner

The petitioner in his petition requested the court to direct the government to take
necessary steps to avoid such leakage from the industries engaged in dangerous and
hazardous manufacturing processes involving hazardous substances. He also reminded the
Court about the Bhopal Gas Tragedy and prayed the Hon’ble Court to direct the
Management of Shriram Foods and Fertilizer Industries and the government to shift and
relocate the plant at a place far away from the city.

Issues before the court

The issues before the Court are 1. Relocation of Industries handling hazardous substances
in manufacturing processes. 2. Compensation to victims.

With regard to the first issue, the Supreme Court appointed an Expert committee to
examine the feasibility of the relocation of industries dealing with hazardous substances
in their manufacturing processes. On the report of the said committee, the Supreme Court
decided to permit Shriram Foods and Fertilizers to restart plants for manufacture of
Caustic Chlorine including its by-products by imposing certain restrictions in the
manufacturing process of these products. With regard to the second issue, i.e.,
Compensation to the victims, the Court formulated the General principles of liability. The
court held that the power to grant remedial relief includes the power to award
compensation in appropriate cases.

Doctrine of Absolute Liability evolved:

The Hon’ble Supreme Court evolved the famous Doctrine of Absolute liability in this case.
It laid down the Doctrine as under:
1. Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm
results on account of accident in the operation of such activity resulting in, for example,
any escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all
those who are affected by accident and such liability is not subject to any of the
exceptions which operate vis-à-vis the tortuous principle of Strict liability under the ruling
made in Rylands vs. Fletcher.

2. The main difference between Strict and Absolute liability is that in case of Strict
liability there are certain exceptions (like Act of God, Plaintiff’s own fault, Fault of third
parties etc) where there is no liability, whereas in case of Absolute liability there are no
exceptions. The liability in that way is absolute.

Conclusion

In accordance with the legal principle (Doctrine of Absolute liability) evolved in the famous
case-law M.C. Mehta and another vs. Shriram Foods and Fertilizer Industries, which is
hallmark of indigenous jurisprudence, the victims in the given problem are entitled to
suitable compensation in terms of the detailed facts and circumstances specific to the
case.

Problem 2:

In the Master Plan of the Municipal Corporation of Hyderabad, a certain piece of land is
earmarked for a public park. Since the land is capable of fetching a good rate, the MCH
decides to sell it to a Multinational Company. The residents in the neighbourhood of the
land are opposing it and want to challenge it before Court. Discuss. (Dec2009/Jan2010)

Solution

Introduction:

The facts of the case resemble the facts and circumstances in the Case-law Bangalore
Improvement Trust Trust Vs. B.S. Mudappa (1991) 4 SCC 54. In that case, a PIL was filed
challenging the allotment of land reserved for a public park for a Nursing Home. The
petitioners B.S. Mudappa & Others, the residents of that locality challenged the order of
the Government in allotting the Site for a private hospital instead of Public Park.

Contentions of Petitioners

The Petitioners contended that the action of the government is contrary to the provisions
of the Bangalore Improvement Act, 1945 and the action of government is arbitrary and
hence violative of Article 14 of the Constitution. It was further contended that a Public
Park contributes to the wellbeing of the residents of the locality in terms of fresh air and
provides breathing space and hence environmentally amicable option in comparison to a
nursing home which does not contribute towards environment/ecology of the locality.
Judgment

In this case the Supreme Court held that open space must be utilized for public park and
play-ground, giving a judgment in favour of the residents of the locality.

Legal principles involved

Protection of the environment, open spaces for recreation and fresh air, play grounds for
children, residents and other conveniences or amenities are matters of great public
concern in the development scheme of a city. The public interest in the reservation of
open spaces for parks and playgrounds cannot be sacrificed by leasing or selling such sites
to private persons for conversion to some other use.

Conclusion

The instant case is fit case for residents to challenge government’s decision in terms of
case-law Bangalore Medical Trust vs. B.S. Mudappa & Others by filing Public Interest
Litigation under Article 226 in High Court or under Article 32 of the Constitution in the
Supreme Court. And they are likely to get a favourable order from the Court.

Problem 3

Several chemical factories are discharging their untreated effluents into a nearby river
thereby dangerously polluting the waters of the river. The State government has ordered
them to immediately set up Effluent Treatment Plants (ETPs) or otherwise immediately
close down. The factories contend that setting up of ETPs would cause them lot of financial
hardship and the alternative order to close down the factory would violate their right to
freedom of trade and occupation. Discuss. (Dec2009/Jan2010)

Solution

Introduction

The facts of the case are similar to the facts of the case in “Vellore Citizens’ Welfare
Forum vs. Union of India and others – AIR 1996 SC 2115. This is a case involving the
Principle of Sustainable Development.

Contentions

Petitioners contended that the River Polar is the main source of drinking water for the
people. Further, nearly 30000 hectares of agricultural land in the tanneries’ belt has
either become partially or totally unfit for cultivation, and the same was confirmed by an
Expert Committee appointed by the Supreme Court. The respondents argued that Tannery
business is source of livelihood for several thousands of people and also major foreign
exchange earner; hence it shall be allowed to continue.
Issues before SC

Whether Tannery business to be continued for monetary considerations, and for being
source of employment at the cost of health of lakhs of people who depend on River Polar
for drinking water?
Judgment

The Supreme Court after examining the report of the Expert Committee delivered its
judgment making all efforts to maintain a balance between Economic development of the
people on one hand and health of the people on the other. Pollution caused by Tanneries
industries would also lead to loss of cultivable feature of thousands of hectares of
Agricultural land. Further, the SC clarified that the tradition concept of “development and
ecology are opposed to each other is no more acceptable and SUSTAINABLE
DEVELOPMENT is the answer”.

Main Points of the Judgment

1. The polluter shall pay compensation to the aggrieved and bear the costs involved in
reversing the damaged environment to its original position. This is called PPP – Polluter Pays
Principle. In India, the Polluter Pays Principle was for the first time adopted in the case
of Indian Council for Enviro-legal Action vs. Union of India, 1996. (Note: PPP is Principle 16
of Rio Declaration relating to the Earth Summit held in Rio De Janeiro in the year 1992).

2. The authority should order to close the industry if the polluter evades or refuses to
pay the compensation or fails to set up ETPs. The Supreme Court gave similar judgment in
the year 2017 in the case of Paryavaran Surakshasamithi vs. Union of India & Ors. (WP
No. 375 of 2012)

Conclusion

In the given problem also, a Public Interest Litigation can be filed in High court under
Article 226 or Supreme Court or under Article 32 of the Constitution in terms of Vellore
Citizens’ Welfare Forum case and get a favourable judgment from High Court or Supreme
Court. A writ of mandamus can be filed to direct the State Pollution Control Board to
perform statutory duty under Section 33A of the Water (Prevention & Control of
Pollution) Act, 1974 compelling industries to set up ETPs.

Problem 4

The residents of the Shantinagar colony want the municipal corporation to shift the
municipal garbage dump yard adjoining the colony, to a far off place as the same is causing
lot of air and land pollution. The municipal corporation claims that the dump yard existed
there even before the colony was set up and that the residents have built their houses
there knowing that there is a dump yard, and express their inability to shift the same.
What is the remedy available to the Residents? Discuss. (Dec2009/Jan2010)
Clues for Solution

Municipal Council Ratlam vs. Vardichand AIR 1980 SC 1622

This case concerns the Ratlam municipality’s obligations to its people under the provisions
of Section 123 M. P. Municipalities Act of 1961. As per the said provisions it is an obligation
include the provision of sanitary facilities and the prevention of street contamination from
a nearby alcohol plant. The residents of the Ratlam municipality, frustrated at the lack of
sanitary facilities and the contamination in the streets, brought suit against the
municipality under the provisions of Section 133 of the Criminal Procedure Code for public
nuisance. The municipality argued that, 1) the residents chose to live where there are no
facilities, and 2) the authorities lacked the funds necessary to construct what was
required to comply.

The Magistrate ordered the municipality to provide the proper facilities and construct
drainpipes to abate the contamination. The order was appealed to the High Court, which
affirmed the order below. The Supreme Court then considered whether a Court could
affirmatively compel a statutory body to construct sanitary facilities and drainpipes at
great cost. The Supreme Court upheld the High Court’s order, holding that the Magistrate
had the power to compel a statutory body to comply with the order in the name of public
duty. The Supreme Court also held that Section 133 of the Criminal Procedure Code
operates against statutory bodies and can be used to remove a public nuisance in a limited
time period.

Furthermore, the Supreme Court found that a municipality cannot claim financial inability
when it is responsible for preserving public health. The Supreme Court stated, “[a]
responsible municipal council constituted for the precise purpose of preserving public
health and providing better finances cannot run away from its principal duty by pleading
financial inability. Decency and dignity are non-negotiable facets of human rights and are
a first charge on local self-governing bodies.”

Conclusions

In the given problem also, a Public Interest Litigation can be filed in High court under
Article 226 or Supreme Court under Article 32 of the Constitution in terms of Municipal
Council Ratlam vs. Vardichand AIR 1980 SC 1622 case and get a favourable judgment from
High Court or Supreme Court.

Problem No.5

In a Mosque, prayers are offered every one hour through loudspeakers which are indeed
very loud. During festivals, music is played through loudspeakers continuously for one week
and everyday almost up to 11 pm. When the residents of the neighbourhood complained,
the answer is that offering prayers is part of their freedom of religion. Decide.
(Dec2009/Jan2010)
Solution

Introduction:

In a Mosque, prayers are offered every one hour through loudspeakers which are indeed
very loud. During festivals, music is played through loudspeakers continuously for one week
and everyday almost up to 11 pm.

Contentions

The residents of the neighbourhood contention are that the prayers offered by using
loudspeakers very loudly disturbing them and particularly during festivals, music is played
through loudspeakers continuously for one week and everyday almost up to 11 pm and hence
complained. But the concerned Authorities answered that offering prayers is part of their
freedom of religion.

Church of God (Full Gospel) in India v K.K.R. Majestic Colony Welfare Association and
others. (AIR 2000 SC 2773)

The appellant, a minority institution was in the practice of using musical instruments such
as drum set, triple ganga, guitar etc. The respondent welfare Association filed a Criminal
O.P before the High Court of Madras for a direction to the authorities [Superintendent
of Police] to take action on the basis of the letter issued by the Joint Chief Environment
Engineer of the TMPCB. In High Court it was contended by the Church that the petition
was filed with an oblique motive in order to prevent a religious minority institution from
pursuing its religious activities and the Court cannot issue any directions to prevent the
church from practicing its religious beliefs. The High Court balanced the act by giving
directions to the religious minority institution to bring down the noise level by keeping the
speakers at a lower level. Aggrieved by the said order the respondents appealed to the
Supreme Court. The Supreme Court held that India is a country with many religious beliefs
and faith, numerous communities or sects of people reside in the same area and locality.
Each reside in a sense of harmony and peace.

The Court while adjudicating the appeal observed that in the present case, the contention
with regard to the right under Art. 25 or Art. 26 of the Constitution which are subject to
'public order, morality and health' are not required to be dealt with in detail mainly
because, no religion prescribes or preaches those prayers are required to be performed
through voice amplifiers or by beating of drums. In any case, if there is such practice, it
should not adversely affect the rights of others including that of being not disturbed in
their activities.

Conclusions: In the given problem also, a Public Interest Litigation can be filed in High
court under Article 226 or Supreme Court under Article 32 of the Constitution in terms
of Church of God (Full Gospel) in India v K.K.R. Majestic Colony Welfare Association and
others. AIR 2000 SC 2773 case and get a favourable judgment from High Court or
Supreme Court.
Problem no.6

A Public Interest Litigation petition is filed in the High Court of A.P. by Mr. X, against the
Aqua Farms (Fish farms). He alleges that aqua culture leads to pollution of land ground
water maritime belt and also denies access to the fishermen to the sea. He also claims this
activity violates the Coastal Regulation Zones Notification of 1991. Discuss.

Solution:

Facts of the case:

The Aqua Farms (Fish farms) leads to pollution of land ground water maritime belt and also
denies access to the fishermen to the sea and hence X filed in the High Court of A.P. by
Mr. X, against the Aqua Farms (Fish farms).

Contentions:

X contended that aqua culture leads to pollution of land ground water maritime belt and
also denies access to the fishermen to the sea and also the said activity violates the
Coastal Regulation Zones Notification of 1991.

Issues involved

The case is similar nature of S. Jagannath vs. Union of India – AIR 1997 SC 811 (Shrimp
farming case), In the said case over the one decade, more intensive methods of shrimp
culture (Prawn farming) have taken place with the result of producing thousands of
kilograms per hectare and within few years, more than 80,000 hectares of land have been
converted into shrimp farming with the aim of expanding the market and getting high
returns on investment. This aim is sought to be achieved by replacing the environment
friendly traditional methods of farming with the semi-intensive and intensive methods
that are not so safe for the environment.

Hence, a Public Interest Writ Petition was filed before the Supreme Court of India, under
article 32 of the Indian Constitution, by S. Jagannathan, Chairman, Gram Swaraj
Movement. The petitioner sought the enforcement of a coastal zone regulation notification
issued by the Government of India, stoppage of intensive and semi-intensive type of prawn
farming in the ecologically fragile coastal areas, prohibition to use wet lands for Prawn
farming and the constitution of a National Coastal Management Authority to safeguard
the marine life and coastal areas.

The Supreme Court analysed several national and international studies on the ecological
and social implications of commercial shrimp farming. It took into account the issues of
loss of agricultural land and mangroves, obstruction of natural drains, salinisation,
destruction of natural seed resources, use of drugs and chemicals, extraction of
groundwater and loss of biodiversity, among others. The court emphasized that the new
trend of more intensified shrimp farming - without much control of feeds, seeds and other
inputs and water management practices - had brought to the fore a serious threat to the
environment and ecology.
Hence, the Supreme Court have directed the Central Government to constitute an
authority under Section 3(3) of the Environment (Protection) Act, 1986 with all the powers
necessary to protect the ecologically fragile coastal areas, sea shore, water front and
other coastal areas and specially to deal with the situation created by the shrimp culture
industry. It shall implement “the Precautionary Principle” and “the Polluter Pays” principles.
And also, further directed no shrimp culture pond can be constructed or set up within the
coastal regulation zone as defined in the CRZ notification. This shall be applicable to all
seas, bays, estuaries, creeks, rivers and backwaters and this direction shall not apply to
traditional and improved traditional types of technologies The Central Government shall
constitute an authority under Section 3(3) of the Environment (Protection) Act, 1986
constituted all the powers necessary to protect the ecologically fragile coastal areas, sea
shore, water front and other coastal areas and specially to deal with the situation created
by the shrimp culture industry. It shall implement “the Precautionary Principle” and “the
Polluter Pays” principles.

The Supreme Court have further held that the said directions shall be applicable to all
seas, bays, estuaries, creeks, rivers and backwaters and this direction shall not apply to
traditional and improved traditional types of technologies:

Conclusions: The case laws - S. Jagannath vs. U.O.I. – AIR 1997 SC 811 is applicable for
this instant case as the matter is similar and as per the said Judgement the said directions
shall be applicable to all seas, bays, estuaries, creeks, rivers and backwaters. Hence, X will
get a positive order from the Hon’ble High Court of A.P.

Problem No.7

In the Municipal limits of town R no drains are constructed as a result of which, all the
sewage water pools up in the middle of the road in a residential area. The problem is
aggravated in rainy season. This is causing public nuisance and is also creating health
hazard to the residents of the locality. They launch a complaint with the Magistrate U/s.
133 CrPC seeking removal of Public Nuisance. The Municipality pleads lack of funds.
Discuss.

Solution

Municipal Council Ratlam vs. Vardichand AIR 1980 SC 1622

This case concerns the Ratlam municipality’s obligations to its people under the provisions
of Section 123 M. P. Municipalities Act of 1961. As per the said provisions it is an obligation
include the provision of sanitary facilities and the prevention of street contamination from
a nearby alcohol plant. The residents of the Ratlam municipality, frustrated at the lack of
sanitary facilities and the contamination in the streets, brought suit against the
municipality under the provisions of Section 133 of the Criminal Procedure Code for public
nuisance. The municipality argued that, 1) the residents chose to live where there are no
facilities, and 2) the authorities lacked the funds necessary to construct what was
required to comply.
The Magistrate ordered the municipality to provide the proper facilities and construct
drainpipes to abate the contamination. The order was appealed to the High Court, which
affirmed the order below. The Supreme Court then considered whether a Court could
affirmatively compel a statutory body to construct sanitary facilities and drainpipes at
great cost. The Supreme Court upheld the High Court’s order, holding that the Magistrate
had the power to compel a statutory body to comply with the order in the name of public
duty. The Supreme Court also held that Section 133 of the Criminal Procedure Code
operates against statutory bodies and can be used to remove a public nuisance in a limited
time period.

Furthermore, the Supreme Court found that a municipality cannot claim financial inability
when it is responsible for preserving public health. The Supreme Court stated, “[a]
responsible municipal council constituted for the precise purpose of preserving public
health and providing better finances cannot run away from its principal duty by pleading
financial inability. Decency and dignity are non-negotiable facets of human rights and are
a first charge on local self-governing bodies.”

Conclusions

In the given problem also, a Public Interest Litigation can be filed in High court under
Article 226 or Supreme Court under Article 32 of the Constitution in terms of Municipal
Council Ratlam vs. Vardichand AIR 1980 SC 1622 case and get a favourable judgment from
High Court or Supreme Court.

Problem No.8

Near the village V is situated a plastic industry. The villagers allege that besides polluting
the air, the industry is discharging untreated effluents into a stream, which is the only
source of drinking water to the entire village. What remedy do the villagers have?

Solution

Facts of the case

Near the village V is situated a plastic industry.The villagers allege that besides polluting
the air, the industry is discharging untreated effluents into a stream, which is the only
source of drinking water to the entire village.

Solution

The facts of the case are similar to the facts of the case in “Vellore Citizens’ Welfare
Forum vs. Union of India and others – AIR 1996 SC 2115. This is a case involving the
Principle of Sustainable Development.

Contentions

Petitioners contended that the River Polar is the main source of drinking water for the
people. Further, nearly 30000 hectares of agricultural land in the tanneries’ belt has
either become partially or totally unfit for cultivation, and the same was confirmed by an
Expert Committee appointed by the Supreme Court. The respondents argued that Tannery
business is source of livelihood for several thousands of people and also major foreign
exchange earner; hence it shall be allowed to continue.

Issues before SC

Whether Tannery business to be continued for monetary considerations, and for being
source of employment at the cost of health of lakhs of people who depend on River Polar
for drinking water?

Judgment

The Supreme Court after examining the report of the Expert Committee delivered its
judgment making all efforts to maintain a balance between Economic development of the
people on one hand and health of the people on the other. Pollution caused by Tanneries
industries would also lead to loss of cultivable feature of thousands of hectares of
Agricultural land. Further, the SC clarified that the tradition concept of “development and
ecology are opposed to each other is no more acceptable and SUSTAINABLE
DEVELOPMENT is the answer”.

Main Points of the Judgment

1. The polluter shall pay compensation to the aggrieved and bear the costs involved in
reversing the damaged environment to its original position. This is called PPP – Polluter Pays
Principle. In India, the Polluter Pays Principle was for the first time adopted in the case
of Indian Council for Enviro-legal Action vs. Union of India, 1996. (Note: PPP is Principle 16
of Rio Declaration relating to the Earth Summit held in Rio De Janeiro in the year 1992).

2. The authority should order to close the industry if the polluter evades or refuses to
pay the compensation or fails to set up ETPs. The Supreme Court gave similar judgment in
the year 2017 in the case of Paryavaran Surakshasamithi vs. Union of India & Ors. (WP
No. 375 of 2012)

Conclusions

In the given problem also, a Public Interest Litigation can be filed in High court under
Article 226 or Supreme Court under Article 32 of the Constitution in terms of Vellore
Citizens’ Welfare Forum case and get a favourable judgment from High Court or Supreme
Court as the discharge of effluents in to a stream causing water pollution, which is the
only source of drinking water for the said village. And also a writ of mandamus can be filed
to direct the State Pollution Control Board to perform statutory duty under Section 33A
of the Water (Prevention & Control of Pollution) Act, 1974 compelling industry to set up
ETPs.

Problem No.9

A multinational company is being prosecuted for leakage of lethal gas from one of its
subsidiaries in India, which killed thousands of persons and maimed several more
thousands. The company agrees to pay compensation if the prosecution is withdrawn.
Discuss.

Solution

Facts of the case

Leakage of lethal gas from one of its subsidiaries of a multinational company in India, which
killed thousands of persons and maimed several more thousands.

Contention of the accused party

The company agrees to pay compensation if the prosecution is withdrawn.

Solution

Introduction

The facts of the case are similar to the facts of the case in M.C. Mehata Vs Union of India
-(1986) 2 Com. L.J. 169 (U.S.) (Popularly known as – “Bhopal Gas Leak Disaster Case”)

Facts of the case: On the midnight of 2-12-1984 there was a leakage of poisonous gas
(methyl isocyanate) from Union Carbide Corporation India Limited, located at Bhopal,
Madhya Pradesh which is a subsidiary of MNC. This disaster was described as “World’s
worst industrial disaster” as it claimed the lives of 2260 people and caused serious injuries
with variety of complications to about 6 lakh people. The Government of India promulgated
an ordinance entitled “The Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985.

The Supreme Court through P.N. Bhagwati, C.J. (Chief Justice), keeping in mind the one
year old great gas disaster of Bhopal, evolved a new rule, “Absolute Liability” in preference
to 1868 rule of Strict Liability in this Oleum Gas Leak Case.

Decision in UCC Case: The Supreme Court (Full Bench) vide its order dated 14-02-1989
directed UCC to pay 470 Million U.S. Dollars (Equivalent to Rs.750 crores approximately)
towards compensation to the victims as the “full and final settlement” in satisfaction of
all the past, present and future claims and the same was accepted by both the parties (i.e.,
U.C.C. and Union of India). The entire amount had to be paid by 31st March 1989.

The Court by exercising its extraordinary jurisdiction quashed all proceedings viz., civil,
criminal or Contempt of court etc., against the U.C.C. The Court also stressed the need to
evolve a national policy to protect national interests from such ultra-hazardous pursuits
of economic gains by Corporations.

Conclusions

In the given problem, there is no need to withdraw prosecution on the grounds of M.C.
Mehata Vs Union of India -(1986) 2 Com. L.J. 169 (U.S.), wherein absolute liability has been
imposed by the Hon’ble SC and the Multi National Company is liable for payment of
compensation and also liable for Poulter pays Principle as held in Sriram Foods Vs Union of
India.
Problem 10

In the market place of a town, water of domestic use including dirty water from the fish
market as also rain water as collected in the middle of it creates problems of insanitation
and filth, because there is no drain for the discharge of the accumulated water. It
becomes a breeding place for mosquitoes also. What is the remedy for the people of the
locality?

Facts of the Case

In the market place of a town, water of domestic use including dirty water from the fish
market as also rain water as collected in the middle of it creates problems of insanitation
and filth, because there is no drain for the discharge of the accumulated water. It
becomes a breeding place for mosquitoes also.

Solution

Municipal Council Ratlam vs. Vardichand AIR 1980 SC 1622

This case concerns the Ratlam municipality’s obligations to its people under the provisions
of Section 123 M. P. Municipalities Act of 1961. As per the said provisions it is an obligation
include the provision of sanitary facilities and the prevention of street contamination from
a nearby alcohol plant. The residents of the Ratlam municipality, frustrated at the lack of
sanitary facilities and the contamination in the streets, brought suit against the
municipality under the provisions of Section 133 of the Criminal Procedure Code for public
nuisance. The municipality argued that, 1) the residents chose to live where there are no
facilities, and 2) the authorities lacked the funds necessary to construct what was
required to comply.

The Magistrate ordered the municipality to provide the proper facilities and construct
drainpipes to abate the contamination. The order was appealed to the High Court, which
affirmed the order below. The Supreme Court then considered whether a Court could
affirmatively compel a statutory body to construct sanitary facilities and drainpipes at
great cost. The Supreme Court upheld the High Court’s order, holding that the Magistrate
had the power to compel a statutory body to comply with the order in the name of public
duty. The Supreme Court also held that Section 133 of the Criminal Procedure Code
operates against statutory bodies and can be used to remove a public nuisance in a limited
time period.

Furthermore, the Supreme Court found that a municipality cannot claim financial inability
when it is responsible for preserving public health. The Supreme Court stated, “[a]
responsible municipal council constituted for the precise purpose of preserving public
health and providing better finances cannot run away from its principal duty by pleading
financial inability. Decency and dignity are non-negotiable facets of human rights and are
a first charge on local self-governing bodies.”
Conclusions

In the given problem also, a Public Interest Litigation can be filed in High court under
Article 226 or Supreme Court under Article 32 of the Constitution in terms of Municipal
Council Ratlam vs. Vardichand AIR 1980 SC 1622 case and get a favourable judgment from
High Court or Supreme Court.

Problem 11

A factory situated 500 yards to the Law college discharges the refuse-liquid into the
municipal drain that passes along the college which is foul smelling and damaging the health
of the neighbourhood. Whether the Law college has cause of action against factory or
not?

Facts of the case

A factory situated 500 yards to the Law college discharges the refuse-liquid into the
municipal drain that passes along the college which is foul smelling and damaging the health
of the neighbourhood.

Solution

As per the law of torts, the liability arises from the violation of a legal right vested in
citizens. Sometimes the legal rights of citizens emerge from the Criminal law also. As per
Section 269 there is a legal right vested in citizens to enjoy a healthy environment around
and a corresponding duty for persons not to violate this right. Therefore, for violation of
legal rights under Section 269 a proceeding for tortuous (civil) liability can be initiated
against the factory for discharging refuse-liquid into municipal drain without treating the
same in an Effluent Treatment plant.

Introduction

The facts of the case are similar to the facts of the case in “Vellore Citizens’ Welfare
Forum vs. Union of India and others – AIR 1996 SC 2115. This is a case involving the
Principle of Sustainable Development.

Contentions

Petitioners contended that the River Polar is the main source of drinking water for the
people. Further, nearly 30000 hectares of agricultural land in the tanneries’ belt has
either become partially or totally unfit for cultivation, and the same was confirmed by an
Expert Committee appointed by the Supreme Court. The respondents argued that Tannery
business is source of livelihood for several thousands of people and also major foreign
exchange earner; hence it shall be allowed to continue.
Issues before SC

Whether Tannery business to be continued for monetary considerations, and for being
source of employment at the cost of health of lakhs of people who depend on River Polar
for drinking water?

Judgment

The Supreme Court after examining the report of the Expert Committee delivered its
judgment making all efforts to maintain a balance between Economic development of the
people on one hand and health of the people on the other. Pollution caused by Tanneries
industries would also lead to loss of cultivable feature of thousands of hectares of
Agricultural land. Further, the SC clarified that the tradition concept of “development and
ecology are opposed to each other is no more acceptable and SUSTAINABLE
DEVELOPMENT is the answer”.

Main Points of the Judgment

1. The polluter shall pay compensation to the aggrieved and bear the costs involved in
reversing the damaged environment to its original position. This is called PPP – Polluter Pays
Principle. In India, the Polluter Pays Principle was for the first time adopted in the case
of Indian Council for Enviro-legal Action vs. Union of India, 1996. (Note: PPP is Principle 16
of Rio Declaration relating to the Earth Summit held in Rio De Janeiro in the year 1992).

2. The authority should order to close the industry if the polluter evades or refuses to
pay the compensation or fails to set up ETPs. The Supreme Court gave similar judgment in
the year 2017 in the case of Paryavaran Surakshasamithi vs. Union of India & Ors. (WP
No. 375 of 2012)

Conclusion

In the given problem also, a Public Interest Litigation can be filed in High court under
Article 226 or Supreme Court under Article 32 of the Constitution in terms of Vellore
Citizens’ Welfare Forum case and get a favourable judgment from High Court or Supreme
Court. A writ of mandamus can be filed to direct the State Pollution Control Board to
perform statutory duty under Section 33A of the Water (Prevention & Control of
Pollution) Act, 1974 compelling industries to set up ETPs.

Problem 12

The stone quarrying industry blasted out the hills with dynamite extracting stone from
the areas badly affecting the vegetation on the hills. “Green Development Trust”
complained against the environment degradation. What are the remedies? Discuss.

Facts of the Case

The stone quarrying industry blasted out the hills with dynamite extracting stone from
the areas badly affecting the vegetation on the hills.
Contention of the Petitioner:

Blasting out the hills with dynamite extracting stone from the areas badly affecting the
vegetation on the hills is an act of environment degradation.

Solution

In similar case of Rural Litigation and Entitlement Kendra vs. State of U.P., (AIR 1988 SC
2187) (Popularly known as “Dehradun Quarrying Case”) the SC directed the Central and
State Governments to take necessary steps to prevent illegal mining and to restore the
damage done to forest area because of the mining activities.

Facts of the Case: This case is popularly known as “Dehradun Quarrying Case”. It is the
first case involving issues relating to environment and ecological balance. In this case R.L
& E Kendra and others in a letter to the Supreme Court complained about the
illegal/unauthorized mining in the Mussorie, Dehradun belt. As a result, the ecology of the
surrounding area was adversely affected and it led to the environmental disorder.

The Supreme Court treated the letter as Writ Petition under Article 32 of the
Constitution and directed to stop the excavations (illegal mining) under the Environment
(Protection) Act, 1986. The respondents contended that the writ petition was registered
in 1983 and the Environment (Protection) Act was passed in 1986 and hence the criminal
proceedings cannot be initiated with retrospective effect.

The court rejected the contention of the respondents and held that the provisions of
procedural laws shall apply to ordinary criminal cases and not to the environmental cases.
The Court directed

Conclusions:

In the given problem also, a Public Interest Litigation can be filed in High court under
Article 226 or Supreme Court under Article 32 of the Constitution in terms of Rural
litigation & Entitlement Kendra Vs. State of U.P. (AIR 1987 SC 2187) case and get a
favourable judgment from High Court or Supreme Court.

Problem no.13

In Municipal School-ground most of the area was taken by the Municipality to construct a
function hall and they started construction work. The parents of the students and one Law
student tried to stop it. What are the legal remedies? Discuss.

Facts of the case

In Municipal School-ground most of the area was taken by the Municipality to construct a
function hall and they started construction work. Contention of the parents of the
students is to retain the same as Municipal School-ground
Solution

The facts of the case resemble the facts and circumstances in the Case-law Bangalore
Improvement Trust Trust Vs. B.S. Mudappa (1991) 4 SCC 54. In that case, a PIL was filed
challenging the allotment of land reserved for a public park for a Nursing Home. The
petitioners B.S. Mudappa & Others, the residents of that locality challenged the order of
the Government in allotting the Site for a private hospital instead of Public Park.

Contentions of Petitioners

The Petitioners contended that the action of the government is contrary to the provisions
of the Bangalore Improvement Act, 1945 and the action of government is arbitrary and
hence violative of Article 14 of the Constitution. It was further contended that a Public
Park contributes to the wellbeing of the residents of the locality in terms of fresh air and
provides breathing space and hence environmentally amicable option in comparison to a
nursing home which does not contribute towards environment/ecology of the locality.

Judgment

In this case the Supreme Court held that open space must be utilized for public park and
play-ground, giving a judgment in favour of the residents of the locality.

Legal principles involved

Protection of the environment, open spaces for recreation and fresh air, play grounds for
children, residents and other conveniences or amenities are matters of great public
concern in the development scheme of a city. The public interest in the reservation of
open spaces for parks and playgrounds cannot be sacrificed by leasing or selling such sites
to private persons for conversion to some other use.

Conclusion

The instant case is fit case for residents to challenge government’s decision in terms of
case-law Bangalore Medical Trust vs. B.S. Mudappa & Others by filing Public Interest
Litigation under Article 226 in High Court or under Article 32 of the Constitution in the
Supreme Court. And they are likely to get a favourable order from the Court.

Problem no.14

A Company was polluting river waters by discharging its effluents. A case was filed for its
closure. The workers pleaded that they would lose their livelihood. Decide.

Solution

The facts of the case are similar to the facts of the case in “Vellore Citizens’ Welfare
Forum vs. Union of India and others – AIR 1996 SC 2115. This is a case involving the
Principle of Sustainable Development.
Contentions

Petitioners contended that the River Polar is the main source of drinking water for the
people. Further, nearly 30000 hectares of agricultural land in the tanneries’ belt has
either become partially or totally unfit for cultivation, and the same was confirmed by an
Expert Committee appointed by the Supreme Court. The respondents argued that Tannery
business is source of livelihood for several thousands of people and also major foreign
exchange earner; hence it shall be allowed to continue.

Issues before SC

Whether Tannery business to be continued for monetary considerations, and for being
source of employment at the cost of health of lakhs of people who depend on River Polar
for drinking water?

Judgment

The Supreme Court after examining the report of the Expert Committee delivered its
judgment making all efforts to maintain a balance between Economic development of the
people on one hand and health of the people on the other. Pollution caused by Tanneries
industries would also lead to loss of cultivable feature of thousands of hectares of
Agricultural land. Further, the SC clarified that the tradition concept of “development and
ecology are opposed to each other is no more acceptable and SUSTAINABLE
DEVELOPMENT is the answer”.

Main Points of the Judgment

1. The polluter shall pay compensation to the aggrieved and bear the costs involved in
reversing the damaged environment to its original position. This is called PPP – Polluter Pays
Principle. In India, the Polluter Pays Principle was for the first time adopted in the case
of Indian Council for Enviro-legal Action vs. Union of India, 1996. (Note: PPP is Principle 16
of Rio Declaration relating to the Earth Summit held in Rio De Janeiro in the year 1992).

2. The authority should order to close the industry if the polluter evades or refuses to
pay the compensation or fails to set up ETPs. The Supreme Court gave similar judgment in
the year 2017 in the case of Paryavaran Surakshasamithi vs. Union of India & Ors. (WP
No. 375 of 2012)

Conclusion

In the given problem also, a Public Interest Litigation can be filed in High court under
Article 226 or Supreme Court or under Article 32 of the Constitution in terms of Vellore
Citizens’ Welfare Forum case and get a favourable judgment from High Court or Supreme
Court. A writ of mandamus can be filed to direct the State Pollution Control Board to
perform statutory duty under Section 33A of the Water (Prevention & Control of
Pollution) Act, 1974 compelling industries to set up ETPs.
Problem No.15

A leather tannery discharged untreated effluents into agricultural field and damaged crop
worth Rs.2.00 lakhs. The agriculturist files a petition for compensation and closure of
tannery. Discuss.

Facts of the case

A leather tannery discharged untreated effluents into agricultural field and damaged crop
worth Rs.2.00 lakhs.

Petitioners’ contention

Due to discharge of untreated effluents from a leather tannery resulting into damage of
agricultural field and damaged of crop worth Rs.2.00 lakhs and the agriculturist files a
petition for compensation and closure of tannery.

Introduction

The facts of the case are similar to the facts of the case in “Vellore Citizens’ Welfare
Forum vs. Union of India and others – AIR 1996 SC 2115.

Contentions

Petitioners contended that the River Polar is the main source of drinking water for the
people. Further, nearly 30000 hectares of agricultural land in the tanneries’ belt has
either become partially or totally unfit for cultivation, and the same was confirmed by an
Expert Committee appointed by the Supreme Court. The respondents argued that Tannery
business is source of livelihood for several thousands of people and also major foreign
exchange earner; hence it shall be allowed to continue.

Issues before SC

Whether Tannery business to be continued for monetary considerations, and for being
source of employment at the cost of health of lakhs of people who depend on River Polar
for drinking water?

Judgment

The Supreme Court after examining the report of the Expert Committee delivered its
judgment making all efforts to maintain a balance between Economic development of the
people on one hand and health of the people on the other. Pollution caused by Tanneries
industries would also lead to loss of cultivable feature of thousands of hectares of
Agricultural land. Further, the SC clarified that the tradition concept of “development and
ecology are opposed to each other is no more acceptable and SUSTAINABLE
DEVELOPMENT is the answer”.

Main Points of the Judgment

1. The polluter shall pay compensation to the aggrieved and bear the costs involved in
reversing the damaged environment to its original position. This is called PPP – Polluter Pays
Principle. In India, the Polluter Pays Principle was for the first time adopted in the case
of Indian Council for Enviro-legal Action vs. Union of India, 1996. (Note: PPP is Principle 16
of Rio Declaration relating to the Earth Summit held in Rio De Janeiro in the year 1992).

2. The authority should order to close the industry if the polluter evades or refuses to
pay the compensation or fails to set up ETPs. The Supreme Court gave similar judgment in
the year 2017 in the case of Paryavaran Surakshasamithi vs. Union of India & Ors. (WP
No. 375 of 2012)

Conclusion

In the given problem also, a Public Interest Litigation can be filed in High court under
Article 226 or Supreme Court or under Article 32 of the Constitution in terms of Vellore
Citizens’ Welfare Forum case and get a favourable judgment from High Court or Supreme
Court as the discharge of effluents in to a stream causing water pollution, which is the
only source of drinking water for the said village. And also, a writ of mandamus can be filed
to direct the State Pollution Control Board to perform statutory duty under Section 33A
of the Water (Prevention & Control of Pollution) Act, 1974 compelling industry to set up
ETPs.

Problem no.16

A Public Interest Litigation was filed before the Supreme Court for a direction for the
closure of mining operations in Faridabad district on the ground that mining operations are
causing considerable pollution in the area. The mining operators opposed this and pleaded
for the dismissal of the writ petition. Discuss.

Facts of the case

Mining operations are causing considerable pollution in the area in Faridabad district

Contention of the Portioner

Closure of mining operations in Faridabad district on the ground that mining operations are
causing considerable pollution in the area

The facts of the case similar to that of M.C. Mehta vs. Union of India – AIR 2004 SC 4016.
While disposing the case the Supreme Court have directed that the MOEF would act as a
nodal agency of the Monitoring Committee. The Secretary of MOEF is directed to appoint
an officer not below the rank of a Joint Secretary in the Ministry for the said purpose.
The Monitoring Committee is directed to inspect the mines in question and file a report
within a period of three months, inter alia, containing suggestions for recommencement of
mining in individual cases. All concerned individuals and departments are directed to render
full co-operation to the Monitoring Committee. Conclusions

1. The order dated 6th May, 2002 as clarified hereinbefore cannot be vacated or varied
before consideration of the report of the Monitoring Committee constituted by this
judgment.
2. The notification of environment assessment clearance dated 27th January, 1994 is
applicable also when renewal of mining lease is considered after issue of the notification.

3. On the facts of the case, the mining activity on areas covered under Section 4 and/or
5 of Punjab Land Preservation Act, 1900 cannot be undertaken without approval under
the Forest (Conservation) Act, 1980.

4. No mining activity can be carried out on area over which plantation has been undertaken
under Aravalli project by utilization of foreign funds.

5. The mining activity can be permitted only on the basis of sustainable development and
on compliance of stringent conditions.

6. The Aravalli hill range has to be protected at any cost. In case despite stringent
condition, there is an adverse irreversible effect on the ecology in the Aravalli hill range
area, at a later date, the total stoppage of mining activity in the area may have to be
considered. For similar reasons such step may have to be considered in respect of mining
in Faridabad District as well.

7. MOEF is directed to prepare a short term and long term action plan for the restoration
of environmental quality of Aravalli hills in Gurgaon district having regard to what is stated
in final report of CMPDI within four months.

8. Violation of any of the conditions would entail the risk of cancellation of mining lease.
The mining activity shall continue only on strict compliance of the stipulated conditions.
The matters are directed to be listed after reopening of courts after summer vacation on
receipt of the report from the Monitoring Committee

Conclusions

In the given problem also, in Public Interest Litigation filed before the Hon’ble Supreme
Court under Article 32 of the Constitution in terms of M.C. Mehta vs. Union of India – AIR
2004 SC 4016 case may get a favourable judgment.

Problem No.17

A large scale pollution was caused by limestone quarries adversely affecting the safety
and health of the inhabitants of the area. A Writ petition was filed before the Supreme
Court for a direction for the Closure of lime stone quarries. The owners of the Quarries
have invoked Article 19(1)(g) against the Closure. Decide.

Facts of the case

A large scale pollution was caused by limestone quarries adversely affecting the safety
and health of the inhabitants of the area.
Contention of the Petitioner

A Writ petition was filed before the Supreme Court for a direction for the Closure of lime
stone quarries by which adversely affecting the safety and health of the inhabitants of
the area.

In a similar case of Rural Litigation and Entitlement Kendra vs. State of U.P., (AIR
1988 SC 2187) (Popularly known as “Dehradun Quarrying Case”), the Hon’ble Court have
directed the Central and State Governments to take necessary steps to prevent illegal
mining and to restore the damage done to forest area because of the mining activities.

Facts of the Case: This case is popularly known as “Dehradun Quarrying Case”. It is the
first case involving issues relating to environment and ecological balance. In this case R.L
& E Kendra and others in a letter to the Supreme Court complained about the
illegal/unauthorized mining in the Mussorie, Dehradun belt. As a result, the ecology of the
surrounding area was adversely affected and it led to the environmental disorder.

The Supreme Court treated the letter as Writ Petition under Article 32 of the
Constitution and directed to stop the excavations (illegal mining) under the Environment
(Protection) Act, 1986. The respondents contended that the writ petition was registered
in 1983 and the Environment (Protection) Act was passed in 1986 and hence the criminal
proceedings cannot be initiated with retrospective effect.

The court rejected the contention of the respondents and held that the provisions of
procedural laws shall apply to ordinary criminal cases and not to the environmental cases.
The Court directed the Central and State Governments to take necessary steps to prevent
illegal mining and to restore the damage done to forest area because of the mining
activities.

Conclusions

Hence in the instant Writ Petition filed before the Hon’ble Supreme Court, the Court may
consider in terms of Rural Litigation Entitlement Kendra, Dehradun vs. State of U.P. –
(1985) 2 SCC 431 & (AIR 1988 SC 2187) and may pass similar favourable judgment.

Dec- 2007

Problem No.18

An industry has been polluting the near by water wells by discharging its effluents. A local
NGO filed PIL against it to stop discharge of effluents – discuss the legal grounds.

Facts of the case

An industry has been polluting the nearby water wells by discharging its effluents.

Contention of the Petitioner

A local NGO filed PIL against it to stop discharge of effluents to prevent pollution of
water wells.
Solution

The facts of the case are similar to the facts of the case in “Vellore Citizens’ Welfare
Forum vs. Union of India and others – AIR 1996 SC 2115. This is a case involving the
Principle of Sustainable Development.

Contentions

Petitioners contended that the River Polar is the main source of drinking water for the
people. Further, nearly 30000 hectares of agricultural land in the tanneries’ belt has
either become partially or totally unfit for cultivation, and the same was confirmed by an
Expert Committee appointed by the Supreme Court. The respondents argued that Tannery
business is source of livelihood for several thousands of people and also major foreign
exchange earner; hence it shall be allowed to continue.

Issues before SC

Whether Tannery business to be continued for monetary considerations, and for being
source of employment at the cost of health of lakhs of people who depend on River Polar
for drinking water?

Judgment

The Supreme Court after examining the report of the Expert Committee delivered its
judgment making all efforts to maintain a balance between Economic development of the
people on one hand and health of the people on the other. Pollution caused by Tanneries
industries would also lead to loss of cultivable feature of thousands of hectares of
Agricultural land. Further, the SC clarified that the tradition concept of “development and
ecology are opposed to each other is no more acceptable and SUSTAINABLE
DEVELOPMENT is the answer”.

Main Points of the Judgment

1. The polluter shall pay compensation to the aggrieved and bear the costs involved in
reversing the damaged environment to its original position. This is called PPP – Polluter Pays
Principle. In India, the Polluter Pays Principle was for the first time adopted in the case
of Indian Council for Enviro-legal Action vs. Union of India, 1996. (Note: PPP is Principle 16
of Rio Declaration relating to the Earth Summit held in Rio De Janeiro in the year 1992).

2. The authority should order to close the industry if the polluter evades or refuses to
pay the compensation or fails to set up ETPs. The Supreme Court gave similar judgment in
the year 2017 in the case of Paryavaran Surakshasamithi vs. Union of India & Ors. (WP
No. 375 of 2012)

Conclusion

In the given problem also, a Public Interest Litigation filed in terms of Vellore Citizens’
Welfare Forum case and may get a favourable judgment as the discharge of effluents in
to a stream causing water pollution, which is the only source of drinking water
Problem No.19

A state High Court has ordered a polluting tannery unit to close down its operations. As a
result, many workers were rendered jobless. They appealed to Supreme Court. – decide.

Facts of the case

A state High Court has ordered a polluting tannery unit to close down its operations. As a
result, many workers were rendered jobless.

Contention of the Petitioners

As a result of High Court orders for closer of polluting tannery unit the Portioners were
rendered jobless, hence appealed Supreme Court for their livelihood

Solution

The facts of the case are similar to the facts of the case in “Vellore Citizens’ Welfare
Forum vs. Union of India and others – AIR 1996 SC 2115. This is a case involving the
Principle of Sustainable Development.

Contentions

Petitioners contended that the River Polar is the main source of drinking water for the
people. Further, nearly 30000 hectares of agricultural land in the tanneries’ belt has
either become partially or totally unfit for cultivation, and the same was confirmed by an
Expert Committee appointed by the Supreme Court. The respondents argued that Tannery
business is source of livelihood for several thousands of people and also major foreign
exchange earner; hence it shall be allowed to continue.

Issues before SC

Whether Tannery business to be continued for monetary considerations, and for being
source of employment at the cost of health of lakhs of people who depend on River Polar
for drinking water?

Judgment

The Supreme Court after examining the report of the Expert Committee delivered its
judgment making all efforts to maintain a balance between Economic development of the
people on one hand and health of the people on the other. Pollution caused by Tanneries
industries would also lead to loss of cultivable feature of thousands of hectares of
Agricultural land. Further, the SC clarified that the tradition concept of “development and
ecology are opposed to each other is no more acceptable and SUSTAINABLE
DEVELOPMENT is the answer”.

Main Points of the Judgment

1. The polluter shall pay compensation to the aggrieved and bear the costs involved in
reversing the damaged environment to its original position. This is called PPP – Polluter Pays
Principle. In India, the Polluter Pays Principle was for the first time adopted in the case
of Indian Council for Enviro-legal Action vs. Union of India, 1996. (Note: PPP is Principle 16
of Rio Declaration relating to the Earth Summit held in Rio De Janeiro in the year 1992).

2. The authority should order to close the industry if the polluter evades or refuses to
pay the compensation or fails to set up ETPs. The Supreme Court gave similar judgment in
the year 2017 in the case of Paryavaran Surakshasamithi vs. Union of India & Ors. (WP
No. 375 of 2012)

Conclusion

In the given problem also, the Hon’ble Supreme Court may consider for continuation of
tannery unit provided establishment of Effluent treatment plant by the tannery Unit in
terms of Vellore Citizens’ Welfare Forum case and may get a favourable judgment.

Problem No.20

A mega power plant project is planner by the government in order to generate power to
meet the agriculture needs. In order to make available for construction the government
ordered to evict the lands of the people. However, the project is opposed by large number
local people. But the government evicted them forcibly and it has also refused to pay the
compensation. The evicted people sought for stay of construction. Discuss.

Facts of the case

A mega power plant project is planner by the government in order to generate power to
meet the agriculture needs. In order to make available for construction the government
ordered to evict the lands of the people.

Contention of the Petitioners

The mega power plant project is opposed by large number local people. But the government
evicted them forcibly and it has also refused to pay the compensation. The evicted people
sought for stay of construction

In a similar case of Narmada Bachao Andolan etc. vs. Union of India & Others AIR 2000
SC 3751 it was held that “it is precisely for this reason that it has been consistently held
by this Court that in matters of policy the Court will not interfere. When there is a valid
law requiring the Government to act in a particular manner the Court ought not to, without
striking down the law, give any direction which is not in accordance with law. In other
words, the Court itself is not above the law.

Conclusion

As observed in Narmada Bachao Andolan etc. vs. Union of India & Others AIR 2000 SC
3751 when there is a valid law requiring the Government to act in a particular manner the
Court ought not to, without striking down the law, gives any direction which is not in
accordance with law. Accordingly in this instant case also the case may be negatived, but
the court may give directions to the Government for payment of Compensation and
rehabilitation measures as provided in Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013.

Problem No.21

As a part of Tourism development, the Ministry of Tourism and Ministry of Environment

& Forests has made a proposal to construct a five star hotel in the forest area and granted
permission to a private company, in order to facilitate the construction of the hotel, they
erected bunds to change the course of a river and also extended their construction into a
part of the reserve forest. This was criticized by environmentalists and PIL was filed
against the proposal. Decide.

Facts of the case:

As a part of Tourism development, the Ministry of Tourism and Ministry of Environment

& Forests has made a proposal to construct a five star hotel in the forest area and granted
permission to a private company, in order to facilitate the construction of the hotel, they
erected bunds to change the course of a river and also extended their construction into a
part of the reserve forest

Contention of the Partitioner

The construction of five star hotel project was criticized by environmentalists and PIL
was filed against the proposal

Solution

The case is similar to M/S. Gateway Hotels and Gateway ... vs Nagarahole Budakattu Hakku
... on 11 April, 1997, wherein M/S. Gateway Hotels and Gateway have commenced the
construction of hotel in reserved forest area. After hearing the case the division bench
of Supreme Court have ordered as under:

1. The judgment of the learned Single Judge insofar as it declares the impugned order
and the lease deed to be contrary to Section 20 of the Wildlife (Protection) Act,
is set aside.
2. The respondent-State and the appellants are at liberty to pray and seek the
approval of the Central Government in terms of Section 2 of the Forest
(Conservation) Act, 1980, which, if prayed or applied for, may be granted or refused
strictly in accordance with the provisions of law.
3. Till such time the approval is granted, the appellant-hotel shall not undertake any
renovation/modification activity on the basis of the impugned orders and the lease
deed.
4. If the Central Government grants the approval in terms of Section 2 of the Act,
the State Government shall constitute a High Power Committee comprising of the
responsible officials of the Forest and Wildlife Departments, Police Agency, and
representatives of the public opinion, including one of the representatives of the
tribals in the area and writ petitioners to monitor the completion of and acting upon
 the terms of the lease deed keeping in view of the various provisions of different
laws applicable in the case for the preservation of forest, environment and the
wildlife. Without appointment of such a Committee, no renovation or modification
activity shall be commenced.
5. In case of any violation reported by the said Committee, if appointed, the
respondent-State shall be obliged to revoke the lease agreement in accordance
with the terms contained therein and the principles of law applicable in the case.
6. The writ petitioners are held entitled to the payment of costs assessed at Rs.
5,000/- to be paid by the appellant-hotel.

Conclusions:

In this instant case the Govt., of India have permitted construction of Five star hotel and
Tourism Project and hence condition No. 4 of above judgement will be made applicable
subject condition of maintaining ecological balance and environmental protection.

April/May 2008

Problem No.22

The Government have closed down several limestone quarries for non-compliance of
environmental regulations. The workers who have lost their jobs filed a Writ Petition on
the closer of the quarries as it violates their right to livelihood under Art 21 of the Indian
Constitution. Decide.

Facts of the case

The Government have closed down several limestone quarries for non-compliance of
environmental regulations.

Contention of the petitioners

The workers who have lost their jobs filed a Writ Petition on the closer of the quarries as
it violates their right to livelihood under Art 21 of the Indian Constitution.

Solution

In the case of Jackson and Company vs Union of India and Anr. AIR 2005 Delhi 334, 121
(2005) DLT 674, 2005 (82) DRJ 298, the Delhi High Court dealt similar case for closer of
manufacture the diesel generating sets as such the manufacture the diesel generating
sets e said manufacturing company have not made provision of acoustic arrangements for
controlling noise pollution and the workers filed WP under Art 21 of the Indian
Constitution.

Conclusion

In this instant case Government have closed down lime stone quarries for non- compliance
of environmental regulations and hence in terms of Jackson and Company vs Union of India
and Anr. AIR 2005 Delhi 334, 121 (2005) DLT 674, 2005 (82) DRJ 298 the case is liable
for dismissal.

Problem No.23

In order to reduce air pollution, noise pollution and traffic congestion, the Government
and association of private schools issued a circular prohibiting the parents and students
from using their own transport and making it mandatory for all students to use buses that
are operated by those schools. Discuss the legality of the circular.

Facts of the case

In order to reduce air pollution, noise pollution and traffic congestion, the Government
and association of private schools issued a circular prohibiting the parents and students
from using their own transport and making it mandatory for all students to use buses that
are operated by those schools.

Solution

The citizen has the right to enjoy life in its entirety along with every permissible pleasure
associated with it. The Article 21 of the Constitution offers every citizen a right to a
decent environment, to live peacefully, to sleep well at night and to have leisure along with
many other concomitant rights.

Therefore, anyone who wishes to live in peace, comfort and quietness within his house has
every right to be protected from excessive sound or noise pollution. On the other hand,
no one got endowed with any right to create noise even in his own premises which would
travel beyond his precincts and cause nuisance to others living within the precincts beyond
his boundary. Any noise which interferes with the normal life of anyone is nuisance.

There are some laws and a slew of judgements which uphold the citizens’ right to live in an
atmosphere free from noise pollution.

The Environment (Protection) Act, 1986

Although there is no specific provision to deal with noise pollution in the Environmental
(Protection) Act, it confers powers on the Government of India to take measures to deal
with various types of pollution, including noise pollution.

The Section 15 of the Environmental (Protection) Act, 1986 says whoever fails to comply
with or contravenes any of the provision of the Environmental (Protection) Act or the rules
made or orders or directions issued thereunder shall in respect of each such failure or
contravention be punishable with imprisonment for a term which may extend to five years
or with a fine which extend to Rs one lakh or with both.

Severe punishment can be imposed if the contravention of any offence relating to

environment continues.
Conclusions

In view of the aforesaid discussions the decision taken by the Government and School
managements are welcome and can be implemented under section 15 of the Environmental
(Protection) Act, 1986.

Problem No.24

State Government have permission for construction of a power plant in a huge public park.
Public resisted and moved the court for cancellation of the permit. Will they succeed?
Discuss.

Facts of the case

State Government have permission for construction of a power plant in a huge public park.

Contention of the public/petitioners

Public resisted and moved the court for cancellation of the permit.

Solution

The facts of the case resemble the facts and circumstances in the Case-law Bangalore
Improvement Trust Trust Vs. B.S. Mudappa (1991) 4 SCC 54. In that case, a PIL was filed
challenging the allotment of land reserved for a public park for a Nursing Home. The
petitioners B.S. Mudappa & Others, the residents of that locality challenged the order of
the Government in allotting the Site for a private hospital instead of Public Park.

Contentions of Petitioners

The Petitioners contended that the action of the government is contrary to the provisions
of the Bangalore Improvement Act, 1945 and the action of government is arbitrary and
hence violative of Article 14 of the Constitution. It was further contended that a Public
Park contributes to the wellbeing of the residents of the locality in terms of fresh air and
provides breathing space and hence environmentally amicable option in comparison to a
nursing home which does not contribute towards environment/ecology of the locality.

Judgment

In this case the Supreme Court held that open space must be utilized for public park and
play-ground, giving a judgment in favour of the residents of the locality.

Legal principles involved

Protection of the environment, open spaces for recreation and fresh air, play grounds for
children, residents and other conveniences or amenities are matters of great public
concern in the development scheme of a city. The public interest in the reservation of
open spaces for parks and playgrounds cannot be sacrificed by leasing or selling such sites
to private persons for conversion to some other use.
The instant case is fit case for residents to challenging government’s decision in terms of
case-law Bangalore Medical Trust vs. B.S. Mudappa & Others by filing Public Interest
Litigation under Article 226 in High Court or under Article 32 of the Constitution in the
Supreme Court. And they are likely to get a favourable order from the Court.

Problem No.25

A Chemical factory in a housing locality is polluting the local environment by smoke emission
and effluents. It has affected the health of the people residing in its vicinity. The people
intended to stop this nuisance. Examine the judicial remedies available to them.

Facts of the case

A Chemical factory in a housing locality is polluting the local environment by smoke emission
and effluents. It has affected the health of the people residing in its vicinity.

Residential locality people contention

The people intended to stop this nuisance of polluting the local environment by smoke
emission and effluents, which has affected the health of the people residing in its vicinity

Solution

It has been ruled by Apex court in case of M.C. Mehta v. Union of India AIR 2001 SC 1948
that balance has to be struck between environmental protection and development
activities, which can be attained by following the principle of Sustainable development.

Right to live in a clean and healthy environment is the fundamental right [Subhash Kumar
v. State of Bihar,1991 AIR 420] which includes the right of enjoyment of pollution-free
water in sufficient quantity and air[S. Joseph v. State of Kerala, AIR 2007 NOC 545] for
full enjoyment of life, which is not a new invention of our Judicial system but the
difference lies here that only now its violation has been taken into consideration and
provisions of law is now necessary to safeguard this right. The Apex Court in case of M.C.
Mehta v. Kamal Nath AIR 2000 SC 1997 was concerned that any disturbance of the basic
environment elements, namely air, water, soil, which are necessary for “life” would be
hazardous to life within the meaning of Article 21 of the Constitution of India. Similarly,
in the case of Ratlam Municipality v. Vardicha 1980 AIR 1622, where the pollution was due
to private polluters and unplanned town planning, it was held by the Apex Court to be a
violation of pollution-free environment and hazardous to public health and thus amounting
to public nuisance as laid in Article 21 of the Constitution of India.

JUDICIAL REMEDIES

The remedies available in India for environmental protection comprise of Tortuous as well
as Statutory law remedies. The tortuous remedies available are trespass, nuisance, strict
liability, and negligence. The statutory remedies entail: -

 the matter brought under Section 19 of the Environmental (Protection) Act, 1986.
  the matter under Section 133 Criminal Procedure Code, 1973 for removal of the
nuisance.

 the matter brought under Section 268, 277, 426, 430, 431, 432, 368 for Public
Nuisance and pollution under Indian Penal Code,1860

CONCLUSION

Despite the fact that the judiciary has tried its level best to forestall the air
contamination and through its different decisions, arrangements and embracing PILs, but
all come to a standstill when it comes to the implementation and role of the executive in
it. Even individuals should be aware of not only their rights but also their duties towards
the environment and its betterment. Each one should contribute at their level to sustain
the environment for the future generation, despite the fact that Judiciary and other
organs of Government trying to eradicate and control Air pollution level through various
means.