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0301/0721/2076

Third Semester 3 Year LL.B./Sixth Semester 3 Year LL.B./Seventh Semester 5 Year

B.A.LL.B./B.B.A.LL.B. / Tenth Semester 5 Year B.A.LL.B.(Maj.-Min.) / B.B.A.LL.B. Examination,
June/July 2019

ENVIRONMENTAL LAW

(Old and New)

Duration: 3 Hours Max. Marks: 100

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Only Problems

9(a) Dharwad Sugar factory used to store molasses, a by-product in manufacturing sugar, in
a mud tank located close to Mr. John’s land. Due to burrowing activity of rodents the said
tank containing 8000 tons of molasses collapsed and emptied themselves on Mr. John’s
land damaging standing crop of paddy and sugarcane. Mr. John claims compensation by
filling a petition before competent court. Will he succeed? Give reasons.

Solution:

Yes, John will succeed in his claim compensation.

Introduction:

There are two important rule which can be applied on this case. The Doctrine of Strict Liability or the
Rule in Rylands v. Fletcher, and the Rule of Absolute Liability.

Description:

The Rule of Strict Liability: It explains that the defendant should not escape from his liability even
though there is no fault of him. The liability is imposed strictly upon him, without fault of him. This
was held in the case Rylands v. Fletcher (1868 L.R. 3 H.L 330)

Brief Facts:

The defendant, Rylands employed an independent contractor for construction of a reservoir

on his land for supply of water to his mill. While constructing the reservoir, the workers found
some old shafts and passages beneath the reservoir. They filled the shafts and passages with
mud and completed the work. When the reservoir got filled with water, it burst through the
shafts and flooded the plaintiff, Fletcher’s coal mines in the adjoining land.

Judgement/Decision:

The House of Lords unanimously gave the judgement in favour of the plaintiff, holding the
defendant liable to pay compensation to the plaintiff, even though there was no fault of him.

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However, there are few exceptions to the Rule of Strict Liability which can be used as defence by the
defendant and these are as follows:

1. Act of God or Vis Major

2. Plaintiff’s own Fault
3. Malicious act of Stranger/third party
4. Consent of the Plaintiff
5. Statutory Authority

The Rule of Absolute Liability: Absolute Liability is stronger than the “Rule of Strict Liability”. In the
Strict Liability, there are few exceptions which the defendant can use it to escape. But in the Rule of
Absolute Liability propounded by the Supreme Court of India, there are no such exceptions. The
defendant has no chance to escape.

Case:

M.C. Mehta and another v. Shri Ram Foods & Fertilizer Industries and others (AIR 1987 SC 965), also
known as Oleum Gas Leak Case

Brief Facts:

Shri Ram Foods & Fertilizer Industries is a subsidiary of Delhi Cloth Mills Ltd., located in a
thickly populated area of Delhi. On 4/12/1985, there was a leakage of Oleum Gas from the
Sulphuric Acid Plant resulting in the death of an Advocate and injuries to several others. On
6/12/1985, there was another minor leakage from the same plant. The petitioner M.C. Mehta
filed a public interest litigation petition in the Supreme Court under the Article 32 of the
Constitution of India.

The supreme court laid down the Rule of Absolute Liability and held that

1. There are exceptions to the Rule in Rylands v. Fletcher. However, no exceptions are allowed
in the Doctrine of Absolute Liability.
2. The first reason explained for this by the Supreme Court is that the owners/defendants, who
produce the dangerous and hazardous nature of products, do their activities for their private
profits. There is a social obligation upon them to compensate those people who suffer from
their activities.
3. The owners/defendants are the only liable persons to guard and check the mis-happenings,
and they have resources and knowledge.

Conclusion:

In the current case, Dharwad Sugar factory used to store molasses, a by-product in manufacturing
sugar, in a mud tank located close to Mr. John’s land. Due to burrowing activity of rodents the said
tank containing 8000 tons of molasses collapsed and emptied themselves on Mr. John’s land damaging
standing crop of paddy and sugarcane. With the references to the Rule of Strict Liability and Absolute
Liability, the defendant is liable to the act and cannot escape saying it was not because of his fault.
Therefore, Mr. John will succeed in his claim compensation filed before the competent court.

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9(b) Karnataka Government leased a piece of land on the bank of river Bhadra, to build a resort,
which happens to be a protected forest. The resort proprietor to save his leased property from
water current, constructed a concrete wall along river bank, which made the river flow to swing to
the other bank of the river washing away substantial part of the land where horticultural crops were
grown. Now farmers filed a PIL questioning the validity of lease granted in favour of hotelier. What
shall be the ground for petition?

Solution:

Yes, there are many grounds for petition which the farmers can use to file their PIL, some of them
are as follow:

1. Admittedly it is a protected forest land. The protected forest land cannot be given on a lease
for commercial purpose.
2. The protected forest land is a public property and the Government is a custodian of this
public property.
3. It is the duty of the Government to safeguard our natural resource. The Government has
breached the public trust by giving a protected forest land for lease to build a resort.
4. The construction of resort and the wall to save the leased property affects the forest, river
flow and the environment.
5. The construction of the wall to save the leased property has affected the farmers of the
other bank of the river who were growing horticultural crops.

Introduction:

The environment, forest, air, river, sea, etc., does not belong to one person. It belongs to all the living
beings. One person cannot modify the environment for his benefit.

In Environmental litigation, “Judicial Activism” signifies the anxiety of the courts to find appropriate
remedies for environmental maladies.

Description:

The Judicial Activism in India can be witnessed with reference to the review power of the Supreme
Court under Article 32 and High Courts under Article 226 of the Constitution particularly in Public
Interest Litigation cases. The Supreme Court played crucial role in formulating several principles in
environmental pollution cases such as the principle of Public Trust Doctrine in M.C. Mehta v.
Kamalnath (1997)1 SCC 388. This case is of great public importance. This case ventilated the misuse of
political power in polluting the environment.

Case Law:

M.C. Mehta v. Kamalnath (1997)1 SCC 388.

Brief Facts:

The State Government leased a riparian forest land for commercial purpose to a private
company “Span Motels Private Limited” which had a club located at the bank of river Beas.
The Motel management’s activities affected the natural flow of the river Beas. The family of

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Indian politician Kamal Nath had direct links with this company and the lease was provided
when Kamal Nath was the Minister of Environment and Forests.

Decision/Judgement:

The Supreme Court condemned the act of Kamal Nath and ordered to stop construction works
on the Beas river bank and to reinstate it to its previous/original position.

Principal laid down:

In this case, the Supreme Court evolved “Public Trust Doctrine”, which envisages that all the
Government lands, air, sea, water, and public places belong to the people and is a public property.
The public property is vested in the Government for safe custody. Therefore, the Government is
shouldered with the responsibility to protect the environment and public places. Here, a State had
committed a breach of “Public Trust”.

Conclusion:

In the current case, Karnataka Government leased a piece of land on the bank of river Bhadra, to build
a resort, which happens to be a protected forest. The resort proprietor to save his leased property
from water current, constructed a concrete wall along river bank, which made the river flow to swing
to the other bank of the river washing away substantial part of the land where horticultural crops were
grown. With reference to the above description and case law, the protected forest is a public property
and the Karnataka Government is the custodian of the public property. Therefore, the Karnataka
Government giving a protected forest land on a lease to build a resort for commercial purpose is
invalid. The following are some of the grounds for petition which the farmers can use:

1. Admittedly it is a protected forest land. The protected forest land cannot be given on a lease
for commercial purpose.
2. The protected forest land is a public property and the Government is a custodian of this
public property.
3. It is the duty of the Government to safeguard our natural resource. The Government has
breached the public trust by giving a protected forest land for lease to build a resort.
4. The construction of resort and the wall to save the leased property affects the forest, river
flow and the environment.
5. The construction of the wall to save the leased property has affected the farmers of the
other bank of the river who were growing horticultural crops.

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9(c) A rubber industry was situated in the industrial estate and was given license under Panchayats
and department of industry. The industry using carbon black in huge quantities, polluted the
atmosphere and failed to apply the preventive measures resulted in discomforts, injury and
nuisance to the resident of the locality. Suggest remedies available under tort law.

Solution:

Yes, there are remedies available under tort law.

Introduction:

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The word 'Nuisance' is derived from the French word 'nuire' and the Latin word 'nocere' which means
“to do hurt or to annoy”. Blackstone describes Nuisance as something that "worketh hurt,
inconvenience or damage”.

In the law of Torts, nuisance means “any act, omission, place, or thing which causes or is likely to cause
injury, danger or offence to the sense of sight, smell or hearing or which is, or may be dangerous to
life or injurious to health or property”.

Nuisance is an activity or state of affairs that interferes with the use of enjoyment of land or rights
over land or with the health, safety, or comfort of the public at large. In simple words, Nuisance is an
injury to the right of a person in possession of property to undisturbed enjoyment of it and results
from an improper use of by another person of his own property.

Description:

There are two Kinds of Nuisance:

1. Private Nuisance: Private nuisance specially affect Individual persons or their property and for
the suppression of which the aggrieved individuals are entitled to invoke the assistance of the
courts.

2. Public Nuisance: Public nuisance is an act or omission of an act causing common injuries,
danger or annoyance to the public. It may be also to dwelling property.

Let’s discuss more on Public Nuisance.

Public Nuisance is a crime. According to Section 268 of the Indian Penal Code, Public Nuisance is a
Criminal offence. Section 268 of the IPC defines public nuisance. Sections 269 to 290 of IPC provide
punishment for public nuisance.

Chapter X of the Criminal Procedure Code, 1973 that is from Section 133 to 143 deals with Public
Nuisance.

Law of Torts:

Nuisance generally means “to do hurt or to annoy”. The basic principle is that in the interest of every
individual owner, he should use his things as not to affect others. This is known by the Latin maxim
“Sic utere tuo ut alienum non laedas”. In case this maxim is violated, the act committed amounts to
nuisance.

For example: If smoke is emitted within one’s own house or on the sky, it is not nuisance to the public,
but if the same smoke is emitted on the street, it becomes a nuisance.

Case Law 1: Trail Smelter Arbitration, U.S v. Canada 3 R.I.I 1911 (1938)

Brief Facts:

Trail Smelter, a Canadian Company was established in the year 1920 on the banks of Columbia
river at Trial town, which is 10 miles away from Canada – U.S. Border. It was engaged in the

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process of smelting lead and zinc. By 1930, the Company rose to the level of consuming per
day 300 tons of sulphur. The gases and fumes emitted in the air and effluents and wastages
released into the Columbia river caused considerable damage to the State of Washington of
U.S. The American Govt. after negotiations with the Canadian Government referred the
matter to the International Joint Commission for Arbitration.

Principles laid down by the Tribunal:

1. The tribunal adopted the principle “Sic utere tuo ut alienum non laedas” in the Trail Smelter
case. In simple words, it means “enjoy your own property without causing any loss or damage
to your neighbour”. Similarly, the Tribunal directed the Trail Smelter should not cause damage
to the neighbour.
2. The tribunal in its observation, stressed that “air pollution would be a serious threat to the
entire globe. Every effort should be made to refrain it from entering the atmosphere.
3. The Tribunal suggested that the States should take necessary steps and pass appropriate
legislations to prevent the air and water pollution.
4. It is significant to note in the Trial Smelter case, that the compensation was paid to the
aggrieved party in International Law as in the case of Law of Torts.

The Tribunal’s decision in Trail Smelter case has a great impact on the liability of the States in
International Community, and the same was incorporated in Principle 22 of the Stockholm
Declaration, 1972.

Case Law 2: P.C.Cherian Vs. State of Kerala (Criminal R.P.No.284 of 1978)

Brief Facts:

Criminal R.P.No.284 of 1978 is against the order of the Sub-Divisional Magistrate, Kottayam, in
M.C.No.4 of 1978.

The preliminary order passed by the Sub Divisional Magistrate against the petitioner “the
petitioner was engaged in mixing rubber with carbon on a voluminous scale in his factory, that
the buildings in which the mixing operations were being carried out were not adequately
ventilated, with sufficient devices to present the carbon black from escaping into the
atmosphere, that in the absence of precautionary measures the carbon black spread in the
atmosphere and used to get deposited in the neighbouring locality, where there are a large
number of residential houses and a Church very close to the factory, that the deposit of such
carbon black affected the life and natural avocations of the people in the locality resulting in
disastrous injury and discomfort to the public at large and also affected adversely the religion
congregational activities of the Church, causing mental agony to the congregation. The
petitioner was required to stop the carbon mixing process on or before 23-3-1978 or to appear
before the Court on the same day and show cause why the order should not be enforced.”

The Court gave directions in the above Criminal Review Petition as following:

The Court has no hesitation in holding that the Magistrate was justified in invoking his powers
under Sec.133 of the Code, in initiating action against the petitioners and in directing them to
stop the service mixing of carbon in their factories. We, however, make it clear that it is open

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to the petitioners to restart the work of service mixing of carbon after introducing gadgets or
equipment which would prevent dissemination of carbon black into the atmosphere. In order
to avoid further trouble and a repetition of similar action against them they may choose the
equipment to consultation with qualified experts in the field of environmental hygiene and to
the satisfaction of the authorities concerned.

Conclusion:

In the current case, a rubber industry was situated in the industrial estate and was given license under
Panchayats and department of industry. The industry using carbon black in huge quantities, polluted
the atmosphere and failed to apply the preventive measures resulted in discomforts, injury and
nuisance to the resident of the locality.

There are remedies available in IPC, CRPC, and in Law of Trots. With reference to the above description
and case law, the residents of the locality can file a petition in the court for the discomforts, injury and
nuisance against the rubber industry and the concerned department for not checking whether the
industry has applied the preventive measures. Therefore, there are remedies available under tort
law.

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