ENVIRONMENT

PROTECTION UNDER
T H E G E N E R A L L AW S

By
Ms. Pallavi Mishra
Symbiosis Law School, NOIDA
COMMON REMEDIES FOR ENVIRONMENT PROTECTION

 The environmental law as it is known today is an amalgamation of

common law and statutory principles.
 In common law, pollution cases generally fall under four categories.
They are Nuisance, Trespass, Negligence and Strict liability.
 A new trend has been seen in Indian legal system after the
UNCHE , Stockholm, 1972- Insertion of Article 48-A, 51-A(g).
 NUISANCE
 The deepest doctrinal roots of modern environmental law are found in the common law principles of
nuisance. 
 "Nuisance" ordinarily means anything which annoys, hurts or that which is offensive. Nuisance includes
any act, omission, injury, damage, annoyance or offence to the sense of sight, smell, hearing or which is
or may be dangerous to life or injurious to health or property.' 
 Section 2(e), Water (Prevention and Control of Pollution) Act, 1974 defines Pollution as: "pollution"
means such contamination of water or such alteration of the physical, chemical or biological
properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous
or solid substance into water (whether directly or indirectly) as may, or is likely to, create a nuisance
or render such water harmful or injurious to public health or safety, or to domestic, commercial,
industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of
aquatic organisms;"
KINDS OF NUISANCE
Nuisance can be divided into two categories:

1. Private Nuisance
2. Public Nuisance 

Indian Penal Code 1860 defines and provides punishment for the offence of committing a public
nuisance. It states that: 

268. Public nuisance.—"A person is guilty of a public nuisance who does any act or is guilty
of an illegal omission which causes any common injury, danger or annoyance to the public
or to the people in general who dwell or occupy property in the vicinity, or which must
necessarily cause injury, obstruction, danger or annoyance to persons who may have
occasion to use any public right."
CLASS ACTION SUITS

 Section 91 Code of Civil Procedure: Reservoir of class action suits against environmental
violations. 
 The marginal note of section 91 reads: "public nuisance and other wrongful acts affecting
the public."
 Section 91 of CPC states that
 (1) In the case of a public nuisance the Advocate General or two or more persons having
obtained the consent in writing of the Advocate General, may institute a suit, though no
special damage has been caused, for a declaration and injunction or for such other relief
as may be appropriate to the circumstances of the case.
 (2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit
which may exist independently of its provisions.
 NUISANCE AND THE CODE OF CRIMINAL PROCEDURE
1973
Criminal Prosecution under such section of chapter XIV of the Indian Penal Code as may be
applicable to the case.
 Sections 269 to section 291 enlist provisions for punitory remedies with imprisonment, fine or
both. For attracting provisions of chapter XIV, it is not necessary that the annoyance should
injuriously affect every single member of the public within the range of operation, it is sufficient
that nuisance disturbs the people living in the vicinity.
133. Conditional order for removal of nuisance.
1. Whenever a District Magistrate or a Sub- divisional Magistrate or any other Executive Magistrate
specially empowered in this of behalf by the State Government, on receiving the report of a police
officer or other information and on taking such evidence (if any) as he thinks fit, considers-
(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way,
river or channel which is or may be lawfully used by the public; or
(b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to
the health or physical comfort of the community, and that in consequence such trade or occupation should
be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof
regulated; or

(c) that the construction of any building, or, the disposal of any substance, as is likely to occasion
configuration or explosion, should be prevented or stopped; or
(d) that any building, tent or structure, or any tree is in such a condition that …..
(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court.
Explanation- A" public place" includes also property belonging to the State, camping grounds and grounds
left unoccupied for sanitary or recreative purposes.
T H E R AT L A M C A S E

 The judicial activism of the 1980s played an important role in reaching new horizons of
jurisprudence in India, more so in the area of the environmental protection.
 The landmark verdict in Municipal Council, Ratlam v. Vardhichand, AIR 1989 SC 1622 is a
illustration.
 The issue before the court was whether the municipality’s financial inability to implement
the programme exonerated it from statutory liability or not.
 In the Judgment, Justice Krishna Iyer made a thorough examination of two main laws:
 (i) the municipal legislation, which casts a duty on the municipality to maintain clean roads
and clean drains; and
 (ii) the provision in the IPC, which prescribes punishment to a person contravening the
direction of the magistrate.
T H E R AT L A M C A S E

 Court observed: Decency and dignity are non negotiable facets of human
rights and are a first charge on the local self governing bodies. Similarly
providing drainage systems- not pompous and attractive, but in working
condition and sufficient to meet the needs of the people – cannot be evaded if
the municipality is to justify its existence.”
 Legislative
Provisions for
Environment
Protection

Common Law Specific Statutory Specific

Principles Provisions Legislations

• Tort Law • The Water (Prevention and Control of

• Indian Penal Code Pollution) Act, 1974
• Nuisance
• Code of Criminal Procedure • The Air (Prevention and Control of
• Trespass Pollution) Act, 1981
• Code of Civil Procedure • Environment (Protection) Act, 1986
• Negligence
• Factories Act, 1948 • Wildlife (Protection) Act, 1972
• Strict Liability • National Green Tribunal Act, 2010
R E M O VA L O F P U B L I C N U I S A N C E - S E C T I O N 1 3 3 C R P C

 The Supreme Court of India had the occasion to interpret Section 133 in the landmark case of
Municipal Council, Ratlam v. Vardhichand, AIR 1989 SC 1622. According to the Court
Section 133 becomes active whenever there is a public nuisance.
 “The public power of the magistrate under the Code is a public duty to the members of
the public who are victims of the nuisance, where the exercise of this power is activated
by the presence of jurisdictional facts. All power is a trust- that we are accountable for
its exercise- that, from the people, and for the people, all springs, and all must exist.
Discretion becomes a duty when the beneficiary brings home the circumstances for its
benign exercise,” the Supreme Court explained.
C O N F L I C T B E T W E E N T H E P O W E R O F T H E M A G I S T R AT E
AND THE PCB
 A question has arisen as to whether Section 133 of the CrPC has been impliedly repealed by
the coming into force of Section 30 of the Water(Prevention and Control of Pollution) Act,
1974 and Section 18 of the Air (Prevention and Control of Pollution) Act, 1981. The Supreme
Court has held that the area of operation of the Code and the pollution laws in question are
different with wholly different aims and objects: although they both alleviate nuisance, they
are not of an identical nature. They operate in their respective fields and there is no
impediment to their co-existence. There is no implied repeal of Section 133 of the CrPC and
therefore, it continues to hold its position empowering the magistrate to remove nuisance,
even though it is pollution.
Removal of nuisance or stopping the nuisance-causing activity by the orders of the
magistrate under section 143 and 133, CrPC.
 Section 133 of CrPC allows the magistrate to order removal of the nuisance causing agent or
activity from the locality provided that he is satisfied that the nuisance affects or injures
number of people enough to attribute ‘public nature’ to the right being violated, the dispute is
not of private nature, between two members or groups of public or the dispute is a case of
emergency or imminent danger to public interest as in cases of pollution by industries.
C R I M I N A L L AW R E M E D I E S
144. Power to issue order in urgent cases of nuisance of apprehended danger.
 “In cases where, in the opinion of a District Magistrate, a Sub- divisional Magistrate or any other
Executive Magistrate specially empowered by the State Government in this behalf, there is
sufficient ground for proceeding under this section and immediate prevention or speedy remedy
is desirable, such Magistrate may, by a written order stating the material facts of the case and
served in the manner provided by section 134, direct any person to abstain from a certain” act or
to take certain order with respect to certain property in his possession or under his management,
if such Magistrate considers that such direction is likely to prevent, or tends to prevent,
obstruction, annoyance or injury to any person lawfully employed, or danger to human life,
health or safety, or a disturbance of the public tranquility, or a riot, of an affray….”
C A S E L AW S

 Krishna Gopal Verma v. State of M.P, (1986) Cri LJ 396

 “It should be remembered that environmental crimes dwarf other crimes against safely and
property but the position of law as it stands in the matter of sentencing such environmental
crimes is rather comfortable. A vagrant committing a petty theft is punished for years of
imprisonment while a billion-dollar price fixing executive or a partner in a concern as such the
petitioner comfortably escapes the consequences of his environmental crime. The society is
shocked when a single murder takes place, but air, water and atmospheric pollution is merely
read as a news without slightest perturbance till people take ill, go blind or die in distress on
account of pollutants that result in the filling of pockets of a few.”
C A S E L AW S

 State of M.P. v. Kedia Leather & Liquor Ltd. And Ors, AIR 2003 SC 3236
 Supreme Court observed: “The nuisance is the concomitant act resulting in danger to the life
or property… The object and purpose behind Section 133 of the Code is essentially to prevent
public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take
recourse immediately, irreparable damage would be done to the public..”
REFERENCES

 Municipal Council, Ratlam v. Vardhichand, AIR 1989 SC 1622