ABSOLUTE LIABILITY 1

SUSTAINABLE DEVELOPMENT 4
POLLUTER PAYS PRINCIPLE 6
PRECAUTIONARY PRINCIPLE 8
INTERGENERATIONAL EQUITY 10
PUBLIC TRUST DOCTRINE 17
PUBLIC INTEREST LITIGATION 21
ARTICLE 48A 25
ARTICLE 51A (G) 26
STOCKHOLM DECLARATION 27
WORLD CHARTER OF NATURE, 1982 29
Brundtland Commission Report 1987 30
Rio Declaration on Environment and Development, 1992 30
RIO+20 DOCUMENT 2012 32
TANNERIES POLLUTION 32
ENVIRONMENTAL IMPACT ASSESSMENT 38

ABSOLUTE LIABILITY
● Concept of Liability Developed by UN
○ Economic and social council of UN Resolution,1968 = liability in
environmental pollution
○ Stockholm Declaration [Principle 7]
■ Restricted to Seas
■ steps to prevent pollution of the seas by substances
○ Brundtland Report [World Commission on environment and development]
■ first legal step to involve liability towards environmental pollution
 ■ If an activity creates a significant risk of substantial harm +
transboundary interference + if overall cost or loss of benefits
involved in preventing or reducing such risk exceeds in the long run
the advantage = compensation should be provided if substantial
harms occur in area beyond the limits of national jurisdiction
○ Principle 3 of Article 3 of Earth Summit, 1992
■ parties should take precautionary measures to anticipate, prevent or
minimize the causes of climate change and mitigate its Adverse
effects where there are threats of serious or irreversible damage, lack
of all scientific certainty should not be used as a reason for
postponing such measures
● Motor Vehicles Act, 1939
○ Act. 1939 recognizes ‘liability without fault’ to a limited extent.
○ first recognized in 1982 by an Amendment.
Rylands v Fletcher
● defendant (Rylands) got a reservoir constructed through independent contractors
over his land for providing water to his mill. When the reservoir was filled, water
flowed down the plaintiff’s (Fletcher) neighbouring coal mine causing damage.
● some negligence on part of contractors in not properly sealing disused mine shafts
● Even though defendant had not been negligent he was held liable.
● defendant, in bringing water into reservoir, was bound to keep it there at his peril

● rule of strict liability = two conditions:

○ (a) Firstly, there should be an escape from land of something likely to do
mischief if it escapes. The escape, means escape from a place of which the
defendant has occupation of or control over land
○ (b) Secondly, there should be some non-natural use of land = some special
use, bringing with it increased danger to others, and must not merely be the
ordinary use of the land
● Exceptions
○ (i) Plaintiff’s own default (ii) Act of God; (iii) Consent of the plaintiff; (iv)
Act of third party; (v) Statutory Authority.

M.C. Mehta v Union of India (1987)

● new principles of tortuous liability, not even recognized by English Courts.
● evolved the rule of ‘absolute liability’ as part of Indian law in preference to rule of
strict liability laid down in Rylands v Fletcher.
● new rule was not subject to any of the exceptions under the Rylands rule.
○ Because those who had established hazardous industries in and around
thickly populated areas could escape the liability for the havoc caused
thereby pleading some exception to the Rylands rule.
● M.C. Mehta, activist lawyer + Shriram Industries in a densely populated area of
Delhi
● oleum gas leaked from one of its units affecting several persons.
● Article 32 = PIL [1986 - Bhopal Gas T - MIC]
● extended the scope of right to life and said that State had power to place
restrictions on carrying of hazardous industrial activities + right to life contains the
right to claim compensation to victims of pollution hazards.
● Measure of Liability
○ rule (Rylands v Fletcher) evolved in 19th century at a time when all these
developments of science and technology had not taken place....We have to
evolve new principles to adequately deal with the new problems which
arise in a highly industrialised economy.
○ absolute and non-delegable duty to the community
○ must conduct its activities with the highest standards of safety, and if any
harm results, the enterprise must be absolutely liable to compensate for
such harm
○ no defence = that it had taken all reasonable care & harm occurred without
any negligence on its part.
○ basis of the new rule
■ (i) If an enterprise is permitted to carry on an hazardous or
inherently dangerous activity for its profit, the law must presume
that such permission is conditional on the enterprise absorbing the
cost of any accident (including indemnification of all those who
suffer harm in the accident) arising on account of such activity
● Since the persons harmed would not be in a position to isolate
the process of operation from the hazardous preparation of
substance
■ (ii) enterprise alone has resources to discover and guard against
hazards or dangers and to provide warning against potential hazards.
● Measure of Compensation (Quantum of Damages)
○ correlated to magnitude & capacity of enterprise, so that compensation can
have deterrent effect.
 ○ larger and more prosperous the enterprise, the greater must be the amount
of compensation payable by it (‘Deep pocket’ theory).

Union Carbide Corpn V. Union of India [1992]

● importance of the concept of absolute liability.
● Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 was passed
authorizing GOI, as parents partite exclusively to represent the victims so that
interests of the victims of the disaster are fully protected, and that claims for
compensation were pursued speedily, effectively, quotably and to the best
advantage of the claimants.
● Due to this reason the apex count did not sharply follow the rule of absolute
liability. Because the concept of absolute liability was to be protected by the
Government itself, and when already the Government has taken burden of the
victims and acted on their behalf to mitigate the matter of compensation to the
victims of Gas disaster, therefore, the function of the concept of absolute liability
has been tentatively done by passing of the Bhopal Gas Lake Disaster (PC) Act of
1985.

New Face to the Rule of Absolute Liability

● Polluter Pays Principle in the place of Absolute Liability to avoid
○ Firstly = label of hazardous and non-hazardous industries to fix the liability
○ Secondly = status of ‘state’ under Article 12 of the Indian Constitution who
protects fundamental rights.
● Only one legislation was framed to promote the principle of Absolute liability was
the National Environment Tribunal Act 1995 [NET], however, the recent National
Green Tribunal Act 2010 replaces the NET.

SUSTAINABLE DEVELOPMENT
Evolution of SD
● In 1950s and 1960s development = regarded as the concept of growth in an
economic framework and confined to economic aspects only.
● 1970s = new concept of development = environmental issue = inherent aspect
● sustainable development
○ process in which the exploitation of resources, the direction of investments,
the orientation of technological development and the institutional changes
are made consistent with future as well as present needs.
● Guiding rules are:
 ○ (i) People must respect the rights of each other
○ (ii) Humanity must take no more from nature than man can replenish; and
○ (iii) People must adopt life styles and development paths that respect and
work within nature’s limits.
● Sustainable Development and Inter-generational Equity
○ Brundtland Commission, “development that meets the needs of the present
without compromising the ability of future generations to meet their own
needs.”
● Salient Principles of SD
○ IGE + Prec P + Polluters P

Vellore Citizens Welfare Forum v. Union of India [1996]

● discussed the concept of sustainable development, which has been accepted as part
of the law of the land.
● acknowledged that the traditional concept that development and ecology are
opposed to each other, is no longer acceptable. Sustainable development is the
answer.
Karnataka Industrial Areas Development Board v. Sri Kenchappa & Ors.
● Facts
○ Respondents affected by land acquisition in favour of a company filed a
writ petition to restrain the petitioners (KIADB) from acquiring their lands.
● Respondent
○ parts of the land acquired were grazing lands + would adversely effect the
environment.
○ gomal & residential lands within green belt should not be acquired for non-
agricultural purposes, including industries.
○ land acquisition by the State of Karnataka was in violation of due procedure
= violative of 14 and 21
○ notification for acquisition of the land has been made without hearing the
affected parties.
● Appellants
○ said lands were no longer used as gomal lands with urbanization
○ acquiring enterprise was to develop a research project as opposed to a
manufacturing plant that would have caused remarkable pollution
○ no violation of procedure as some of the land allotted was government land
and the rest was acquired from private parties in lieu of compensation
 ○ project was going to create a remarkable opportunity for employment,
research and development and such hindrance will deter growth
● Held
○ Upheld SD = strike a golden balance b/w industrial development and
ecological preservation = Stockholm + Rio
■ Rio = environment as an integral part of the developmental process
with equitable treatment of both.
○ Before the acquisition of lands for developement, consequence and adverse
impact of development on environment must be properly comprehended.
○ State Industrial Development Board to obtain clearance from Pollution
Control Board before allotment of land
○ 21, 48A, and 51(g) of the Constitution

Narmada Bachao Andolan v. Union of India [2000]

● SD means what type or extent of development can take place, which can be
sustained by nature/ecology with or without mitigation.”

Taj Trapezium case [1997]

● India is a developing country, certain ecological sacrifices are deemed necessary,
while keeping in mind the nature of the environment in that area, and its criticality
to the community.

State of Himachal Pradesh v. Ganesh Wood Products [1996]

● invalidated forest-based industry, recognizing the principle of inter-generational
equity as being central to the conservation of forest resources and sustainable
development.

POLLUTER PAYS PRINCIPLE

● PPP
○ absolute liability for harm to the environment extends not only to
compensate the victims of pollution but also of the cost of restoring the
environmental degradation.
○ Remediation of the damaged environment is a part of the process of
Sustainable Development
● RIO Declaration, 1992
○ Principle 16
 ● Pollution (harm associated with emission of wastes into environmental sinks) is
only one of many forms of environmental degradation to which the rule has been
applied.
○ Pollution = refers loosely to harm associated with any form of
environmental degradation.
● Beneficiary-Pays Principle / The User-Pays Principle
○ With the PPP having been applied relatively rarely to agriculture, the cost-
sharing rule typically used in its place has been the Beneficiary-Pays
Principle (BPP).
○ BPP favours the costs of providing conservation goods (i.e., prevention or
repair of environmental degradation) being allocated to those who benefit
from those goods.

Bichri [1994]
● For the first time Indian Judiciary dealt with Polluter Pays Principle
● Facts
○ Bichhri, Udaipur, Rajasthan = near a major industrial establishment,
Hindustan Zinc Limited
○ 4th respondent started producing = Oleum [said to be the concentrated form
of Sulphuric acid] and Single Super Phosphate.
○ Respondent No. 5, commenced production of 'H' acid in the area =
enormous quantities of highly toxic effluents = threat to envrt.
○ Because of pernicious wastes emerging from the production of 'H' acid, its
manufacture have been banned in the western countries. But the need of 'H'
acid continues in the West.
○ toxic untreated waste waters - flow out freely + sludge percolated deep =
polluting the aquifers + supply of water.
■ water in the wells + streams has turned dark and dirty rendering it
unfit for human consumption + cattle consumption + irrigation
■ spreads disease, death
● Respondents
○ GOI + Govt of Rajasthan + Raj PCB + Co. + Rajasthan Multi Fertilisers
● NEERI Report
○ Solid wastes generated from H-acid = Gypsum sludge produced during the
neutralisation of acidic solution with lime after nitration stage
○ Iron sludge produced during the reduction stage
○ Gypsum sludge contains calcium sulphate + sodium salts and organics.
 ○ for each tonne of H-acid manufactured, about 20 mt of highly corrosive
wastewater was generated as mother liquor, besides the generation of
around 2,0 mt of wash water.
○ acidic wastewater was flowing over the abandoned dumpsite + finally into
nallahs & water bodies
○ Soil fertility + leaf burning and stunted growth.
○ Restoration Cost and Compensation
■ principle of 'Polluter Pays' should be applied = incident involved
deliberate release of untreated acidic process wastewater and
negligent handling of waste sludge
■ cost needs to be borne by the management of the industry in keeping
with PPP and the doctrine of Strict/Absolute liability, as applied to
SriRam Case
● EPA + PPP
○ Sections 3 and 5 of E.P. Act 1986 empower the Central Government to give
directions and take measures for giving effect to this principle.
● Provisions
○ Constitution - Articles 12, 21, 32, 48A and 51A
○ Environment (Protection) Act, 1986 = Sections 3, 4 and 5
○ Water (Prevention and Control of Pollution) Act, 1974 = Sections 24(1),
25(1), 33 and 33A
○ Air (Prevention and Control of Pollution) Act, 1981
○ Hazardous Wastes (Management and Handling) Rules, 1989

PRECAUTIONARY PRINCIPLE
● Rio Dec, Principle 15
○ precautionary approach shall be widely applied by States according to their
capabilities.
○ Where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing cost-
effective measures to prevent environmental degradation.
● Stockholm Declaration, Principe 6
○ Assimilative principle
■ discharge of toxic substances or of other substances and the release
of heat, in such quantities or concentrations as to exceed the
capacity of environment to render them harmless, must be halted in
 order to ensure that serious or irreversible damage is not inflicted
upon eco system”
■ PP founded on the assumption that the environment has capacity to
some extents to assimilate substances so as to render them harmless.
● Agenda 21
○ Mentions PP
● World Charter for Nature 1982, Article II (6)
○ Activities which are likely to pose a significant risk to nature shall be
preceded by an exhaustive examination; and where potential adverse effects
are not fully understood, the activities should not proceed
● A.P. pollution Control Board v M.V. Nayudu [ 1999 SC] [Nayudu Case]
○ it is better to err on the side of caution and prevent environmental harm that
to run risk of irreversible harm.
○ anticipation of environmental harm and taking measures to avoid it
○ based at protecting health, property and economic interest but also protect
the environment for its own sake
● Vellore Citizens Welfare Forum v. UOI [1996] [Vellore Case]
○ PP
■ (i) Environmental measures – by State Government & statutory
authorities – must anticipate, prevent and attack the causes of
environmental degradations.
■ (ii) Where there are threats of serious and irreversible damage lack
of scientific certainty should not be use as a reason for postponing
measures to prevent environmental degradation.
■ (iii) “onus of proof” is on the actor or the developer industrialist to
show that his action is environmentally benign.
○ precautionary principle and polluter pays principle are part of the
environmental law of the country”
● Article 47, 48A
○ Article-47. Duty of the state to raise the level of nutrition and the standard
of living and to improve public health. The states shall regard the raising of
the level of nutrition and the standard of living of its people and the
improvement of public health as among its primary duties
● Karnataka Industrial Areas Development Board v. Sri Kenchappa & Ors.
○ Referred to PP
○ Environmental measures must anticipate, prevent, and attack the causes of
environmental degradation. Where there are threats of serious or
 irreversible damage, lack of scientific certainty should not be used as a
reason for postponing measures to prevent environmental degradation.

INTERGENERATIONAL EQUITY

● 2 distinct components regarding the utilisation of resources

○ 1) Fairness in the utilisation of resources between human generations past,
present & future = "inter-generational" equity.
○ 2) "intra-generational" equity
● Indigenous Peoples' Interests
○ Integration of environmental, development and human rights objectives is
also manifested in recent instruments concerning indigenous peoples
○ 1994 U.N. Draft Declaration on Indigenous Peoples
■ Indigenous peoples have the right to their traditional medicines and
health practices, including the right to the protection of vital
medicinal plants, animals and minerals [Article 24]
■ to special measures to control, develop and protect their sciences,
technologies and cultural manifestations + genetic resources, seeds,
medicines, knowledge of fauna and flora, oral traditions, literature,
designs and visual and performing arts [Article 29].
○ confirmed in studies by the World Resources Institute ("WRI")
○ CBD + Desertification Convention ("DC") + Vienna Declaration = reflect
an emerging integrated approach.
■ incorporate economic, social-equity and environmental protection
considerations in varying degrees.
● Impact
○ Human Rights Considerations - Indigenous People
■ IBRD - cancel involvement in two major water diversion schemes:
the Sardar Sarovar project in India and the Arun III project in Nepal.
● IGE
○ phenomenon of cross border environmental harm, and recognition of
liability for resulting damage = 1st addressed in Trail Smelter arbitration
[1941]
○ Climate Change Convention
■ IGE - Article 3 of CCC
 ● merely states that: "Parties should protect the climate system
for the benefit of present and future generations of
humankind, on the basis of equity and in accordance with
their common but differentiated responsibilities."
○ Soft Law on IGE
■ Goa Guidelines 1988 on IGE + Declaration Universelle Des Droits
adopted at Laguna, Canary Islands, 1994
■ seek to develop a normative framework for protecting the interests
of future generations.
○ London Convention, 1933
■ ensuring that as little disturbance as possible is occasioned to the
natural fauna and flora.
○ Whaling Regime
■ Preamble to International Convention for the Regulation of Whaling
of 1946 = safeguarding for future generations the great natural
resources represented by the whale stocks
○ Stockholm Declaration, 1972
■ Principle 1 = Man - responsibility to protect and improve the
environment for present and future generations.
■ Principle 2 - natural resources including the air, water, land, flora
and fauna = safeguarded for present & future generations.
■ Common but Differentiated Responsibilities
● Principle 23 = consider the systems of values prevailing in
each country + extent of applicability of standards which are
valid for most advanced countries but which may be
inappropriate and of unwarranted social cost for the
developing countries
○ New International Economic Order ("NIEO")
■ U.N.GA resolutions = refer to "equity," as a standard for ensuring
fairness in access, consumption
■ protection, preservation and enhancement of environment for present
and future generations is the responsibility of all States
○ CITES, 1973
■ Convention on International Trade in Endangered Species of Wild
Fauna and Flora ("CITES")
■ 1st international treaty to employ the language of IGE derived from
the Stockholm Declaration
 ■ Preamble = wild fauna and flora must be protected for this and the
future generations
○ UNCLOS
■ intra-generational equity in its provisions concerning the Deep Sea-
Bed Mining regime.
■ to create international obligations on the part of industrialised
countries to transfer technical resources to enable developing
country pirates to exploit deep sea-bed resources
○ Rio Declaration
■ does not expressly mention either "intra-" or "inter-" generational
equity nor use the words ". . . present and future generations".
■ Yet, it focuses on intra-generational concerns in Principles 3, 5, 7, 8,
12 and 14.
○ CBD
■ passing reference to inter-generational equity: "for the benefit of
present and future generations" in its preamble.
■ Article 1 = "fair and equitable sharing of the benefits" arising out of
use of resources of biological diversity, the access to genetic
resources and "transfer of relevant technologies."
○
● Founex Report, 1971
○ Reason for envrt problems in developing countries in South = poverty &
underdevelopment.
● Agenda 21
○ chapter on "changing consumption patterns"
○ Section 4.3 of Chapter 4 - link b/w environmental degradation, poverty in
developing countries and unsustainable consumption in industrialised
countries
■ Poverty and environmental degradation are closely interrelated.
● Intra-Generational Equity
○ Distributive Justice
■ International equity and distributive justice are the guiding principles
with which poverty can be minimized at least if not all together
eliminated.
○ assure among all nations fair access, distribution and consumption of global
resources.
 ○ Provisions in CBD + Climate Change Convention ("CCC"), on technology
transfer between industrialised and developing countries, establish that
receipt of developmental assistance and meeting environmental treaty
obligations are mutually dependent
○ Bering Fur Seal Regime
■ arose out of Fur Seal arbitrations of 1892 b/w US & Great Britain,
■ "intra-generational" interests were raised i
■ issues of equity in utilisation of the seals at both the international
and domestic levels.
● Conflict between IGE & Intra GE
○ Our Common Future ("OCF"), a political treatise - recognized that realising
intra-generational considerations may present adverse implications for IGE
○ Article 5 of draft IUCN Covenant on Environment and Development
"qualifies" present generations' use of the environment with the needs of
future generations:
■ "The freedom of action of each generation in regard to the
environment is qualified by the needs of future generations."
● Denmark v. Norway (1933), ICJ,
○ Judge Weeramantry
○ "equity" in the Maritime Delimitation + referred to IGE + "concept of wise
stewardship [of natural resources] . . . and their conservation for the benefit
of future generations. . ."
● Nuclear Tests (New Zealand v. France) 1995
○ Weeramantry in his dissenting opinion
○ principle of IGE = possibility of damage to generations yet unborn.
● Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons
("Nuclear Weapons Advisory Opinion")
○ Weeramantry = Court must pay due recognition to the rights of future
generations
○ rights of future generations have passed the stage when they were merely
an embryonic right struggling for recognition.
● Minors Oposa v. Secretary of the Department of Environment and Natural
Resources ("DENR")
○ Petitioners = present and continued logging/cutting in forests violated their
right to a healthy environment + entail irreparable harm to them and future
generations
● Gulf of Maine case
 ○ Intra-GE
○ need to take into account of the effects of the delimitation on Parties'
respective fishing activities = should not entail 'catastrophic' repercussions
for livelihood and economic well-being of the populations of the countries
concerned.
● El Salvador/Honduras: Nicaragua intervening
○ Intra GE
○ El Salvador argued for a favourable boundary delimitation on the basis of,
inter alia, its "demographic pressures...creating need for territory, as
compared with the relatively sparsely populated Honduras . . . and the
superior natural resources . . . said to be enjoyed by Honduras.
● State of Himachal Pradesh vs Ganesh Wood Products, 1996
○ SC for the first time brought the idea of IGE
○ IGE and SD had come to be firmly embedded in constitutional
jurisprudence as an integral part of FR conferred by Article 21

A writ petition was filed by Ganesh Wood Products against the decision of the
Government of the State of Himachal Pradesh to refuse the establishment of katha
factories in the State. The Government submitted that such establishment would lead to
indiscriminate felling of the so called khair trees which would have a deep and adverse
effect upon the environment and ecology of the State. The raw material available in the
State, namely the khair trees, for manufacturing katha was not sufficient to sustain the
proposed industries. The High Court allowed the petition. The Government appealed to
the Supreme Court of India.
Judgement:
The Respondent, Ganesh Wood Products, submitted that according to the New Industrial Policy
introduced by the Government of India, a citizen of India had an unquestioned and absolute right
to establish a small-scale industry at any time, at any place and of whatever capacity he may
choose. The Government was bound to register any and every application for establishing a
small-scale industry and it had no power to cancel or disapprove such registration. The Court
noted that there was no enactment made by the legislature of the State of Himachal Pradesh
governing the establishment of the industries in question. In the absence of an enactment, the
executive power of the State extended to the said subject matter. While acting in its executive
capacity, the Government was entitled to lay down policies and preferences in the interest of the
State, its economy, and the Himachal Pradesh Forest Policy. The Government had the power to
approve applications and this included the power to disapprove. The only obligation of the State
in such event was to extend a fair and equitable treatment to all persons coming before it. It was
open to the Government to say that having regard to the availability of the raw material it did not
approve more than a particular number of factory units. The Court also emphasized that during
the years of 1992 and 1993 every proposed factory using khair trees was approved by the State
authority in charge. This was contrary to public interest involved in preserving forest wealth,
maintenance of environment and ecology and considerations of sustainable growth and inter-
generational equity. After all, the present generation had no right to deplete all the existing
forests and leave nothing for future generations. The obligation of sustainable development
required that a proper assessment should be made of the forest wealth and the establishment of
industries based on forest produce should not only be restricted accordingly but their working
should also be monitored closely to ensure that the required balance was not disturbed. In terms
of forest wealth and environment, it also did not make a difference if the trees to be used came
from private forests or from Government forests.
Finally, the Court analyzed the doctrine of promissory estoppel and applied it to the case. It held
that the rule being an equitable doctrine, it had to be moulded to suit the particular situation. If
the equity demanded that the promissory was allowed to resile and the promisee was
compensated appropriately, that ought to be done. If, however, equity demanded, in the light of
the things done by the promisee on the faith of the representation, that the promissory should be
precluded from resiling and that he should be held fast to his representation, that should be done.
In conclusion, the Court remitted the matters to the High Court for a fresh disposal of the writ
petitions and restrained the factory units from taking any further steps towards setting up the
units pending the final orders by the High Court.

● Samaj Parivartana Samudaya case, 2013

● T.N. Godavarman Thirumulpad, 2005
○ obligation of all to conserve the environments + regard to the principles of
sustainable development and inter-generational equity.
● ND Jayal, 2004
○ IGE = inseparable ingredients of our environmental jurisprudence = could
only be nurtured by ensuring sustainable development.
● Bhopal Gas Peedith Mahila Udyog Sangathan 2012
○ Unlike natural calamities that are beyond human control, avoidable
disasters resulting from human error/negligence prove more tragic and
completely imbalance the inter-generational equity and cause irretrievable
damage to the health and environment for generations to come.
● Obulapuram Mining Company case (2011)
○ in order to balance environmental concerns with economic development
keeping mandate of Article 21, including IGE
 ● Arjun Gopal case 2017
○ principle of IGE
● MC Mehta case (2009)
○ “Environment and ecology are national assets. They are subject to inter-
generational equity.”

PUBLIC TRUST DOCTRINE

Define Public Trust doctrine. Explain the applicability of PTD in India through
decided cases.

MC Mehta v. Kamalnath[1997]
● Facts
○ Supreme Court took notice of a news article on the activities of Span Club, in
diverting the course of the river Beas.
○ Kamal Nath = business interests in the Span Resort + Club - encroaching upon
forest land + land was leased when Kamal Nath was Union Minister for
Environment and Forests.
○ Span Resorts management has been moving bulldozers and earth movers to turn
the course of the Beas for a second time.
● Petitioner
○ Respondent encroached upon forest land in contravention of s. 2 of Forest
(Conservation) Act, 1980.
○ Respondent changed the direction of the river and caused environmental
degradation.
● Judgement
○ Re: Letter of the Divisional Forest Officer allowed the Club to carry out the
necessary works subject to the Department not being liable for any amount
incurred - Court disagreed and said that the constructions were made much before
the letter was issued.
○ Management has by their illegal constructions and interference with the natural
flow of river Beas = degraded the environment
■ by laying to block the natural relief/spill channel of the river.
○ economically fragile area should not have been converted into private ownership
and for commercial gains.
○ Roman theory of Doctrine of Public Trust
■ Certain common properties like rivers, sea-shore, forests and air were held
by Government in trusteeship for the free and unimpeded use of the
general public.
 ■ Under Roman law, these resources were either owned by no one (Res
Nullius) or by every one in common (Res Communis).
■ This came to be adopted in the English common law
■ Public Trust Doctrine says that some resources have such great importance
to the people as a whole that it would be wholly unjustified to make them
a subject of private ownership. It enjoins upon the Government to protect
the resources for the enjoyment of the general public rather than to permit
use for private ownership or commercial purposes.
○ 3 Restrictions = imposed on governmental authority under this doctrine.
■ Property subject to the trust must not only be used for a public purpose,
but it must be held available for use by the general public.
■ property may not be sold, even for a fair cash equivalent.
■ property must be maintained for particular types of uses.
○ Joseph L. Sax, Professor of Law = proponent of the Modern Public Trust Doctrine
○ US - Illinois Central R.R. Company v. Illinois (1873).
■ When a State holds a resource which is available for the free use of the
general public, a Court will look with considerable skepticism upon any
governmental conduct which is calculated either to relocate that resource
to more restricted uses or to subject public uses to the self-interest of
private parties.
○ National Audubon Society v. Superior Court of Alpine County (Mono Lake case)
■ Division of Water Resources granted the Department of Water and Power
of Los Angeles a permit to appropriate virtually the entire flow of 4 of the
5 streams flowing into the lake.
■ ecological values of the Lake were imperilled.
■ Plaintiffs sought to protect recreational and ecological values like the
scenic views of the lake and its shore, the purity of the air and the use of
the lake for nesting and feeding by birds.
■ state has an affirmative duty to take the public trust into account in the
planning and allocation of water resources
○ Per discussion with Arup sir: The public v. general public debate came from the
Mono Lake case. It is essentially the right of a public of an area to access and use
the resource v. the right of the general public of a larger area (usually a country)
to preserve and conserve the resource. General public interests also prevail.
● Indian legal system based on English common law includes the public trust doctrine as
part of its jurisprudence.
○ State is the trustee of all natural resources
○ These resources cannot be converted into private ownership. This is a blanket
prohibition except when the courts find it necessary in good faith, for the public
good and in public interest to encroach upon the said resources.
 ● Himachal Pradesh Government committed patent breach of public trust by leasing the
ecologically fragile land to the Motel management.

M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu case (1999)

● Facts
○ Lucknow Nagar Mahapalika permitted M.I. Builders Pvt. Ltd to construct an
underground shopping complex in a park
● Respondents
○ park of historical significance + environmental importance
○ park only open space in the busiest commercial area
○ 21, 49, 51 + Violated U.P. Nagar Mahapalika Adhiniyam, U.P. Regulation of
Buildings Operations Act, UP Urban Planning and Development Act
○ No tenders were invited - against established procedure - arbitrary
○ Against public interest - no permission was sought from the chairman under Uttar
Pradesh Urban Planning and Development Act.
● Appellants
● Judgement
○ Parks Act provides for preservation and regulation of parks, playgrounds and
open spaces in State of UP.
■ applies to an area included in every Nagar Mahapalika under UP Nagar
Mahapalika Adhiniyam,1959
○ UPUPD 1973
■ Section 95 - Mahapalika may from time to time by special resolution
constitute a special committee to enquire into and report upon any
matter connected with its powers, duties or functions.
■ Section 114 - obligatory duties of the Mahapalika - to maintain public
places, parks and to plant trees - violated this duty - park has been dug
and construction made underground. [Mahapalika violated this
provision]
■ Section 128 - Power to Dispose off property
● Corporation have power to sell, let on hire, lease, exchange,
mortgage, grant or otherwise dispose of any property or any
interest therein acquired by or vested in the Corporation under this
Act.
■ Section 129 = Provision governing disposal of property - Every disposal
of property belonging to the Corporation shall be made by the Mukhya
Nagar Adhikari on behalf of the Corporation
■ Section 131 = Powers of Corporation to the making of contracts -
Corporation shall have power to enter into contracts which may be
necessary or expedient
 ○ Part IX of the Constitution = inserted by the Constitution (74th) Amendment
Act, 1992. Article 243W under this part prescribes the powers, authorities and
responsibilities of Municipalities etc
● Held
○ This public trust doctrine in our country, it would appear, has grown from
Article 21.
○ Mahapalika had disposed of the land in favour of the builder in contravention
of the provisions relating to disposal of property under Sections 128 and 129
of the U.P. Nagar Mahapalika Adhiniyam.
○ Mahapalika was the trustee of the park = Mahapalika, therefore, could only
manage the park and could not alienate it or convert it to something different
from the park
○ Violation of Sec 128 U.P. Nagar Mahapalika Adhiniyam
■ By granting licence to the builder to construct underground shopping
complex of permanent nature and to hold on to the same for a period
which is not definite = subvert the provision of Section 128 U.P. Nagar
Mahapalika Adhiniyam
○ Violation of sec 129 U.P. Nagar Mahapalika Adhiniyam
■ licence was granted to the builder to enter upon the park and to execute
a work of permanent character = thus making the licence irrevocable
(sec 60(b) easement act)
■ However, the licence is deemed to be revoked after the licensee has
recovered his full cost on the construction plus 10% of the profit on the
investment made by him (sec 62(f) easement act).
■ Builder is then authorised to lease out shops so constructed on behalf of
the Mahapalika.
○ Contract of such a magnitude could not have been awarded to the builder
without calling for tenders.
○ invoked the public trust doctrine and held that being a trustee of the park on
behalf of the public, the Nagar Mahapalika could not have transferred the
same to the private builder and thereby deprived the residents of the area of the
quality of life to which they were entitled under the Constitution and
Municipal Laws

Intellectuals Forum, Tirupathi v. State of A.P. case (2006)

● articulation of the doctrine from the angle of the affirmative duties of the State
with regard to public trust. Formulated from a negatory angle, the doctrine does
not exactly prohibit the alienation of the property held as a public trust. However,
when the State holds a resource that is freely available for the use of the public, it
 provides for a high degree of judicial scrutiny on any action of the Government, no
matter how consistent with the existing legislations, that attempts to restrict such
free use.
● To properly scrutinise such actions of the Government, the courts must make a
distinction between Government's general obligation to act for the public benefit,
and the special, more demanding obligation which it may have as a trustee of
certain public resources
●

Reliance Natural Resources Ltd. v. Reliance Industries [2010]

● public trust doctrine applies to natural gas deposits located in Indian waters.
● Article 297 of IC
○ "all lands, minerals and other things of value underlying the ocean within the
territorial waters, or the continental shelf, or EEZ, of India shall vest in the Union
and be held for the purposes of the Union."
○ word "vest" must be interpreted in the light of the public trust doctrine
● Indian public trust doctrine is solely a creature of Indian law, and is not, like its American
cousin, dependent on state law for any of its content.
● In the United States, the Federal Government acquired its sovereignty from the individual
States
● In India, the Union Government acquired its sovereignty directly from the people

PUBLIC INTEREST LITIGATION

●
● Conventional Disputes = Bi-polar + retrospective +rights and remedies closely
related + law of limitation applicable + whole issue is driven by action of the
parties
● PIL = not adversarial + prospective + corrective and less compensatory +
difficulty in delimiting the duration
● US position
○ 1950s : end racial segregation in Brown II case,
 ○ 1960s civil rights and helping poor
○ 1970s consumer and environment protection
● Representative Standing
○ Means [standing for the poor and oppressed]
○ Mumbai Kamgar Sabha v. Abdulbhai, 1976
○ Hussainara Khatoon Case
○ Fertilizer Corporation Kamgar Union V. Union of India, 1981
○ S. P. Gupta (Judges’ Transfer) case, 1982
○ Peoples Union for democratic rights case, 1982
● Citizen Standing
○ Means [Standing in cases of executive inaction or abuse]
○ Own right to file (a person or voluntary organization)
○ As a member of citizen it is a public duty Art. 51 A (g)
○ Fertilizer Corporation Kamgar Union V. Union of India
○ S. P. Gupta (Judges’ Transfer) case
● Early environmental cases
○ Rural Litigation (Dehradun Quarrying) case, 1985
○ M C Mehta (Shriram Fertilizer) case, 1987
○ M C Mehta (Kanpur Tanneries) case, 1988
○ M C Mehta (Municipalities) case, 1988
● Locus Standi
○ S. P. Gupta
■ two types of standing = representative + citizen standing
● Misuse of Jurisdiction
○ Chhetriya Pradushan case [personal interest]
○ Subash Kumar case (Personal interest)
○ Jayant Vitamin Case 1992
● Relaxation of the Procedure
○ Rural Litigation (Dehradun Quarrying) case
○ M C Mehta (Shriram Fertilizer) case
○ M C Mehta (Kanpur Tanneries) case
● Class Action
○ Order 1 rule 8
■ class must be numerous + same interest + sue or be sued on behalf
of the class + notice to all
○ Benefits
■ Art 32 & 226 as writ petition
 ■ speedy and inexpensive + direct access to highest court
■ not only corrective but compensatory decisions may be obtained
■ evidences may be adduced during trials.
○ M C Mehta (Kanpur Tanneries) case
○ Agent Orange case 1987 [US]
○ Dalkon Shield case 1989 [US]

Subhash Kumar v. State of Bihar [1991]

● Pollution of River Water from Sludge/Slurry of Steel Plant Washeries
● Misuse of Article 32 PIL (Public Interest v. Personal Interest)
● Right to Clean Environment under Article 21, Functions of Board
● Water Act, 1974 - Sections 17, 24, 25 and 26.
● Facts:
○ Petition filed under Article 32 - for issuance of a Writ directing Tata Iron & Steel
Co. Ltd. to stop the discharge of sludge/slurry into Bokaro River.
● Arguments by Petitioner:
○ Section 17: inspect sewage or trade effluents
○ Section 24: permit any poisonous, noxious or polluting matter
○ Coal Washing
■ Respondents are carrying on mining operations in coal mines from where
the coal upon extraction is brought to coal washeries and broken into
graded pieces for reducing its ash content using the chemical process of
froth floatation.
■ large quantity of water is discharged into storage ponds constructed for
the purpose of retaining the slurry.
■ surplus waste in the form of sludge/slurry is discharged as an effluent
from the washeries into Bokaro river, which gets deposited in the bed
of the river and gets settled onto the Petitioner's land
■ sludge/slurry is absorbed by the agricultural land leaving a fine
carbonaceous product or film on the soil, which adversely affects the
fertility of the land.
■ polluting river water + not fit for drinking purposes + irrigation
■ poses risks to the health of people
■ Claimed relief for issue of direction directing the respondents which
include the State of Bihar, Bihar Pollution Control Board, UOI and
Tata Iron & Steel Co. to take immediate steps prohibiting the pollution
of Bokaro river water
● Arguments by Respondent:
○ Centre Gov
 ■ There is no discharge from any of the Company’s washeries into the
Bokaro River. Effective steps have been taken to prevent the flow of
discharge.
■ Bihar State Pollution Board asserted that directions have been issued
to the Bokaro Collieries to take effective steps + TISCO Company
has been granted permission to discharge their effluents from their
outlets in accordance with sections 25 and 26 of the 1974 Act.
■ question of pollution of Bokaro River does not arise as the river
remains dry for 9 months in a year.
● Judgement
○ No pollution in river + SPCB has taken effective steps
○ PIL
■ petition has not been filed in public interest, rather appears to be
filed in personal interest looking at the past relationship between the
Parties and the nature of the prayer -
● Petitioner has been purchasing slurry from the Respondent for
several years. After his request for more slurry was denied,
the Petitioner, being an influential businessman, began
harassing the Respondent
○ Article 32 is designed for enforcement of FR of a citizen by SC.
■ extraordinary remedy to safeguard FR
■ Right to life = Article 21 = enjoyment of pollution free water and air
for full enjoyment of life.
■ If anything endangers or impairs that quality of life in derogation of
laws, a citizen has right to have recourse to Article 32 = for
removing the pollution of water or air which may be detrimental to
the quality of life.
■ petition under Article 32 for prevention of pollution is maintainable
at the instance of affected persons or even by a group of social
workers or journalists.
■ But recourse to proceeding under Article 32 = should be taken by
person genuinely interested in the protection of society on behalf of
the community.
■ PIL cannot be invoked by a person or body of persons to satisfy his
or its personal grudge and enmity. If such petitions under Article 32
are entertained it would amount to abuse of process of the Court,
 preventing speedy remedy to other genuine petitioners from this
Court.
■ PIL contemplates legal proceeding for vindication or enforcement of
fundamental rights of a group of persons or community which are
not able to enforce their fundamental rights on account of their
incapacity, poverty or ignorance of law.

ARTICLE 48A
● Art. 48A.
○ State shall endeavour to protect and improve the environment and to
safeguard the forests and wild life of the country
○ 42nd AA, 1976
● Municipal Council, Ratlam vs Shri Vardhichand [1980]
● Sec 133 CrPC
● Residents of Sanjay Nagar v State of Rajasthan [2004]
○ state government and SPCB, city municipal council = unauthorized
slaughterhouse in the residential colony should be closed.
● Kanpur Tanneries
● M/S. Ivory Traders v. Union Of India
○ 48A - what is destructive of the environment, forest and wild life is
contrary to the said DPSP
○ State has the power to completely prohibit a trade or business which has an
adverse impact on the preservation of species of wild life which are on the
verge of extinction
○ Trading in animals close to being wiped out of existence and articles made
from their bones, skins or other parts of their bodies, is a situation akin to
dealing in any other noxious or pernicious trade e.g. intoxicating drugs.
While the Parliament can impose a ban on trading in endangered species or
articles derived from them in furtherance of Art. 48A
● N.R. Nair vs Union Of India
○ DPSP are not enforceable but are nevertheless fundamental In the
governance of the country and have to be applied by the State in making the
laws.
● Maa Bhawani Timber vs The State Of Jharkhand
 ○ 48A
○ Private interest has to give way to the public interest.
○ mass felling and destruction of forest = petitioner cannot claim absolute
right to run the business of saw-mill
●

ARTICLE 51A (G)

● 51A.
○ duty of every citizen of India (g) to protect and improve the natural
environment including forests, lakes, rivers and wild life, and to have
compassion for living creatures
○ 42nd AA
○ Bhopal Gas Leak + Oleum
● Vijay Singh Punia. v State of Rajasthan
○ imposing 15% of the turnover of the dyeing and printing industries as
damages for causing water pollution done by Rajasthan High Court.
● Harijan Lay Out Sudhar Samiti vs State Of Maharashtra
○ Parliament has enacted EPA, 1986, for the purpose of protecting and
improving our environment = in harmony with our constitutional provisions
○ word 'environment' in 51A(g) is of broad spectrum = ambit = hygienic
atmosphere and ecological balance.
● VCWF

STOCKHOLM DECLARATION
● Proclamation 1
○ Man is both creature and moulder of his environment, which gives him
physical sustenance.
● Proclamation 2.
○ protection and improvement of the human environment is a major issue
which affects the well-being of peoples.
● Principle 1
○ Man has FR to freedom, equality and adequate conditions of life.
● Principle 2
 ○ natural resources = including air, water, land, flora and fauna and especially
representative samples of natural ecosystems must be safeguarded for the
benefit of present and future generations.
● Principle 3
○ capacity of the earth to produce vital renewable resources must be
maintained and, wherever practicable, restored or improved.
● Principle 5
○ non-renewable resources of the earth must be employed in such a way as to
guard against the danger of their future exhaustion.
● Principle 6
○ discharge of toxic substances or of other substances and the release of heat,
in such quantities or concentrations as to exceed the capacity of the
environment to render them harmless
● Principle 9
○ by accelerated development through the transfer of substantial quantities of
financial and technological assistance as a supplement to the domestic
effort of the developing countries
● T. Damodhar Rao [1987]
○ Environmental law is enacted to give protection to various component of it,
as there are may instances of degradation and exploitation of the same
being witnessed at different points of time.
○ Stockholm declaration
■ natural resources = including air, water, land, flora and fauna and
especially representative samples of natural ecosystems must be
safeguarded for the benefit of present and future generations.
[Principe 2]
■ Nature conservation = must therefore receive importance in planning
for economic development.
○ Rosco Pound blamed the common law for its serious social shortfalls.
■ Men have changed their views as to the relative importance of the
individual and of society; but the common law has not.
■ common law knows individuals only..... narrow and one sided view.
● Indian council (Bichhri) case
○ Preamble of EP Act 1986 and Stockholm Declaration, 1972
● Vellore case, 1996
○ "Sustainable Development" = first time in Stockholm Declaration of 1972.
● Kamalnath 2 case
 ○ Two world wars = witnessed huge loss of thousands of lives and burning
down of vast expanses of forests, made the man realise that if the
environmental disturbances were not controlled, his own survival on this
planet would become impossible.
○ UN, therefore, held a Conference on human environment at Stockholm in
1972 = different countries enacted laws to protect the deteriorating
conditions of environment.
● KM Chinnappa 2003
○ On Principle 3 = Declaration says that in developing countries most of the
environmental problems are caused by underdevelopments.
○ Declaration = safe actions with prudent care for ecological balance +
necessary to avoid massive + irreversible harm to earthly environment
● Karnataka Industrial Areas Development Board 2006
○ 1972 Stockholm D = 'both aspects of man's environment, the natural and
the man-made, are essential for his well-being and enjoyment of basic
human rights'.

WORLD CHARTER OF NATURE, 1982

● Nature shall be respected and its essential processes shall not be impaired.
[Principle 1]
● Principle 2 genetic viability on earth shall not be compromised, the population
levels of all life forms, wild and domesticated, must be at least sufficient for their
survival, and to this end necessary habitats shall be safeguarded
● Principle 3 All areas of the earth both land and sea, shall be subject to these
principles conservation, special protection shall be given to unique areas, to
representative sample of all the different types of ecosystems and to the habitats of
rare or endangered species.
● Principle 4 SD = Ecosystems and organisms as well as the land, marine and
atmospheric resources that are unutilized by man, shall be managed to achieve and
maintain optimum sustainable productivity, but not in such a way as to endanger
the integrity of those other ecosystems or species with which they coexist.
● Non-renewable resources which are consumed as they are used shall be exploited
with restraint, taking into account their abundance, the rational possibilities of
converting them for consumption, and the compatibility of their exploitation with
the functioning of natural systems.
 ● Discharge of pollutants into natural systems shall be avoided and: Where this is
not feasible, such pollutants shall be treated at the source, using the best
practicable means available
● Mankind is a part of nature
○ Civilization is rooted in nature, which has shaped human culture and
influenced all artistic and scientific achievement
○ Natural resources shall not be wasted, but used with a restraint
○ Living resources shall not be utilised in excess of their natural capacity for
regeneration.
○ Resources, including water, which are not consumed as they are used shall
be reused or recycled;
● Every form of life is unique, warranting respect regardless of its worth
● degradation of natural systems owing to excessive consumption and misuse of
natural resources, as well as to fauna to establish an economic order among
peoples and among States, leads to the breakdown of economical, social and
political framework of civilization.
● Sovereignty over natural resources
○ Taking fully into account the sovereignty of states over their natural
resources, each State shall give effect to the provisions of the present
Charter through its competent organs and in cooperation with other States.

Brundtland Commission Report 1987

● Part 1, Common Concerns
○ Chapter 1 : A threatened Future

Rio Declaration on Environment and Development, 1992

● Background
○ Reaffirming Stockholm Declaration, 1972;
○ establishing a new and equitable global partnership through the creation of
new levels of cooperation among States
● Principle 1
○ Human beings are at the centre of concerns for sustainable development.
They are entitled to a healthy and productive life in harmony with nature.
● Principle 2
○ States have the sovereign right to exploit their own resources pursuant to
their own environmental and developmental policies,
 ○ Restriction in accordance with UN & principles of international law
○ Responsibility to ensure that activities should not cause damage to the
environment of other States
● Principle 3 SD
○ right to development must be fulfilled so as to equitably meet
developmental and environmental needs of present and future generations.
● Principle 4
○ In order to achieve SD, environmental protection shall constitute an integral
part of development process and cannot be considered in isolation from it.
● Principle 5 Poverty Eradication
○ All States and all people shall cooperate in the essential task of eradicating
poverty as an indispensable requirement for SD, in order to decrease the
disparities in standards of living and better meet the needs of the majority
of the people of the world.
● Principle 6 CBD
○ special situation and needs of developing countries, particularly the least
developed and those most environmentally vulnerable, shall be given
special priority.
● Principle 13 Liability and Compensation
○ States shall develop national law regarding liability and compensation for
the victims of pollution and other environmental damage.
○ India has enacted Public Liability Insurance Act, 1991.
● Principle 15 Precautionary Principle
○ precautionary approach shall be widely applied by States according to their
capabilities.
○ Where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing cost-
effective measures to prevent environmental degradation.
● Principe 16 Polluter Pay Principle
○ polluter should, in principle, bear the cost of pollution, with due regard to
public interest and without distorting international trade and investment.
● Principle 17 EIA
○ Environmental impact assessment, as a national instrument, shall be
undertaken for proposed activities that are likely to have a significant
adverse impact on the environment.
● trans-boundary hazard to be informed to affected states = Principle 19
● traditional knowledge should be protected = Principle 22
 ● Vellore case 1996
○ During the two decades from Stockholm to Rio "SD" has come to be
accepted as a viable concept to eradicate poverty and improve the quality of
human life while living within carrying capacity of supporting ecosystems.
○ SD as a balancing concept b/w ecology and development = part of CIL
○ precautionary principle & polluter pays principle have been accepted as
part of the law of the land.
● KM Chinnappa 2003
○ On Principle 3 = Declaration says that in developing countries most of the
environmental problems are caused by underdevelopments.
○ Declaration = safe actions with prudent care for ecological balance +
necessary to avoid massive + irreversible harm to earthly environment

RIO+20 DOCUMENT 2012

TANNERIES POLLUTION

M.C. Mehta v. Union of India [1988] [Kanpur Tanneries Case]

● Leather Treatment Process
● Constitution - Articles 48-A, 51-A and 252;
● Water (Prevention and Control of Pollution) Act, 1974 - Sections 2, 16, 17 and 24;
Environment (Protection) Act, 1986 - Sections 2, 3, 5, 9 and 15;
● Ganga
○ Civilisation + millions of people + large industries
○ Pollution = sewage + trade effluents of factories
○ PIL filed by MC Mehta + to restrain the respondent tanneries from letting
out effluents into the Ganges.
● Order 1 Rule 1
 ○ SC accepted the petition under Order1 Rule 1 and not as a PIL, even though
the judgment might seem to give the effect of a PIL.
○ Representative Suit
○ issuance of a notice under Order 1 Rule 8 of CPC to publish the gist of the
petition in leading newspapers calling upon all the industrialists and
municipalities to show cause as to why directions should not be issued to
them to stop the discharge of effluents without appropriate treatment.
● Article 48A
○ State Responsibility
○ 1. protect and improve envrt. + 2. to safeguard forests and wild life
● Article 51A
○ Individual Responsibility + FD
○ 1. protect and improve the natural environment including
○ 2. forests, lakes, rivers and wild life
○ 3. to have compassion for living creatures.
● UN Conference on the Human Environment, Stockholm 1972
○ Proclamation 1.
■ Man is both creature and molder of his environment which gives
him physical sustenance and affords him the opportunity for
intellectual, moral, social and spiritual growth
■ Both aspects of man's environment, the natural and the man made,
are essential to his well being and to the enjoyment of basic human
rights
○ Proclamation 2
■ protection and improvement of human environment is a major issue
which affects the well-being of peoples and economic development
throughout the world, it is the urgent desire of the peoples of the
whole world and the duty of all Governments.
○ Proclamation 3
■ Man = constantly sum up experience and go on discovering,
inventing, creating and advancing.
■ In our time man's capability to transform his surroundings, if used
wisely, can bring to all peoples the benefits of development and the
opportunity to enhance the quality of life.
● Water Act 1974
○ Preventive Action
 ■ Section 24 prohibits the use of any stream or well for disposal of
polluting matter etc.
○ Stream
○ Functions of the Board [16 + 17]
○ PCB lays down effluent standard
○ Power of Board to make application to courts for restraining apprehended
pollution of water in streams or wells [33]
● Implementation
○ Notwithstanding the comprehensive provisions contained in the Act no
effective steps appear to have been taken by the State Board so far to
prevent the discharge of effluents of the Jajmau near Kanpur to the river
Ganga.
○ not much has been done even under this Act by the Central Government to
stop the grave public nuisance caused by the tanneries at Jajmau. Kanpur.
● Penalties [15 EPA]
● SC Held
○ directions for the closure of those tanneries which have failed to take
minimum steps required for the primary treatment of industrial effluent.
○ SC held that the said tanneries should either shut down or permanently
relocated.
○ Financial capacity of tanneries should be considered as irrelevant while
requiring them to establish primary treatment plants. Just like an industry
which cannot pay minimum wages to its workers cannot be allowed to exist
a tannery which cannot set, up a primary treatment plant cannot be
permitted to continue
○ effluent discharged from a tannery is ten times noxious when compared
with the domestic sewage water which flows into the river from any urban
area on its banks.
○ tanneries could not be allowed to function unless the install the primary
treatment plant.
○ Industries - already having PTP = keep them in sound working order

M.C. Mehta v. Union of India [1997] [Calcutta Tanneries Case]

● Facts
○ PIL - Article 32 - initially directed against Kanpur tanneries, but the scope of the
petition was later enlarged to include industries in various cities
● National Environmental Engineering Research Institute (NEERI)’s examination report
○ no appropriate wastewater drainage, treatment or collection systems existed in
any of these tanneries.
○ Tannery units are located in highly congested habitations and thickly populated
residential areas
○ surroundings of the tanneries are unhygienic - untreated effluents in open drains,
○ 90% of Calcutta tanneries use chrome based tanning process, while the remaining
utilise vegetable tanning process.
● As a result, in 1993 - State Govt informed the court that Calcutta tanneries were being
shifted to a new location that was equipped with pollution control devices = adequate
space was not available in the proposed new areas
○ No steps for constructions of primary effluent treatment plant were made.
● Arguments of the Petitioner [Tanneries]
○ Govt has issued instructions indicating that the tanneries need not shift from the
present place, and that it was technically feasible to set up a common effluent
treatment plant within the original area where the tanneries are currently located.
The tanneries also stated that they would be willing to meet the cost of the ETP
project.
■ Court accordingly ordered NEERI to examine the feasibility of this plan.
■ NEERI submitted a report that the proposed scheme was neither
scientifically sound, nor could it be constructed in the existing location
without interfering with normal residential life in those areas.
■ proposed CETP schemes are not capable of treating the wastewater laden
with high total dissolved solids, chromium, and nitrogenous constituents.
■ Court = Calcutta tanneries would have to be relocated
● Arguments of the Respondent:
○ State Govt argued that it has taken possession of the land for the new tanneries
complex and has repeatedly offered it to the tanneries, but they have not as yet
accepted the same.
○ 25% of the land-price was to be deposited but not deposited.
○ large number of Calcutta tanneries are operating without setting up of pollution
control devices.
○ Highly noxious and poisonous effluents are being discharged on the surrounding
areas and in the river.
○ Calcutta tanneries are even otherwise operating in violation of the provisions of
the Act, 1974 (the Water Act).
○ Sections 2(dd), (e), (J), (k) 24(l)(a) 25(1), (2) and 26 of the water Act
● Judgement
○ tanneries = operating in violation of Water Act = Sections 2(dd), (e), (J), (k) 24(l)
(a) 25(1), (2) and 26
○ tanneries = violating the mandatory provisions of EPA, 1986.
 ○ Citing the Vellore Citizens Welfare case,
■ “precautionary principle” and “polluter pays principle” =considered to be
essential features of sustainable development.
○ Citing Legal Action v Union of India,
■ “once the activity carried on is hazardous or inherently dangerous, the
person carrying on such activity is liable to make good the loss caused to
any other person by his activity irrespective of the fact whether he took
reasonable care while carrying on his activity”
■ Consequently polluting industries are absolutely liable to compensate for
the harm caused to villagers in an affected area.
○ Precautionary Principle
■ PP - in the context of-the municipal law - means:
● (i) Environment measures - by State Gov & statutory authorities -
must anticipate, prevent and attack the causes of envrt degradation.
● (ii) Where there are threats of serious and irreversible damage, lack
of scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation.
● (iii)"Onus of proof is on the actor or the developer/industrialist to
show that his action is environmentally benign.
○ Polluter Pays Principle
■ Polluter Pays - Legal Action v. Union of India 1996
■ "Polluter Pays" principle = absolute liability for harm to the environment
extends not only to compensate the victims of pollution but also the cost
of restoring the environmental degradation.
■ Remediation of damaged environment is part of the process of
"Sustainable Development" and as such polluter is liable to pay the cost to
the individual sufferers as well as the cost of reversing the damaged
ecology.
○ Order relocation to the new leather complex set up by the WB govt, and shall
deposit 25% of the price of the land
○ State govt shall also appoint an authority/Commissioner who shall determine the
compensation to be recovered from the polluter tanneries as cost of reversing the
damaged environment
○ compensation amount recovered from the polluting tanneries and the amount of
fine recovered from the tanneries shall be deposited , under a separate head called
"Environment Protection Fund" and shall be utilised for restoring the damaged
environment and ecology.

Vellore Citizens Welfare Forum v. UOI [1996] [Vellore Case]

Area of Law: Precautionary Principle (mentions Rio Declaration - PP, SD)

● Facts:
○ VCWF, filed a PIL under Article 32 - against the water pollution caused
due to tanneries - TN - river Palar (source of livelihood)
○ Due to pollution - 35,000 hectares of agricultural land has turned either
entirely or partially barren and not fit for cultivation + nonavailability of
portable water
○ Notice issued to either construct common effluent treatment plants
(CETPS) for a cluster of industries or to set up individual pollution control
devices + but no action
● Petitioner
○ whole surface and sub-soil water of river Palar has been intoxicated and as
a result, it has turned out non-accessible for consumption to the inhabitants
of the region
○ serious damage to the environment
○ Study reported = 350 wells out of an aggregate of 467 wells used for
drinking and water system purposes have been contaminated
■ Groundwater - contaminated by percolation - acute shortage + walk miles
to get drinking water
○ Another Report
■ 176 chemicals were found in the tannery effluents. About 40 litres of
water is required to process only 1 kg of leather. Thus, the amount of
harmful effluents generated by the tanneries is shockingly excessive.
○ Govt - ever providing subsidies for setting up CETPS
● Respondent
○ standard with respect to Total Dissolved Solids (TDS) fixed by Tamil Nadu
Pollution Control Board was not legitimised
■ NEERI Report = legitimized the models stipulated by the Board
○ Ministry of Environment and Forests (MEF) has not completely set down
models for inland surface water release for Total Dissolved Solids (TDS),
sulphates, and chlorides.
● Held
○ efforts = to maintain harmony b/w environment & industrial development
○ tanneries are one of the major foreign exchange sources + employment.
But, also harms and wrecks the environment.
○ Rio summit + affirmed the principle of SD + its features like
"Precautionary Principle" and "Polluter Pays" .
 ○ to create balance between environmental and industrial development
■ tanneries should be shut down until and unless they have set up the
required pollution control devices
■ Deposit fine + green benches for speedy disposal of cases
○ Constitute an authority - as envisaged by Section 3(3) of EPA, 1986
■ to implement the polluter pays principle and the precautionary
principle
■ compute the amount of compensation
■ Central Government constituted an authority named the ‘Loss of
Ecology (Prevention and Payments of Compensation) Authority.’
● Provisions
○ Art 21,47, 48A and 51A(g)
○ Rio Declaration, 1992
■ Principle 1 - Human beings - centre of concerns for SD - healthy and
productive life in harmony with nature.
■ Principle 3 - right to development must be fulfilled so as to equitably
meet developmental and environmental needs of present and future
generations.
■ Principle 4 - In order to achieve SD, environmental protection shall
constitute an integral part of the development process and cannot be
considered in isolation from it.
■ Principle 13 - States shall develop national law regarding liability
and compensation for victims of pollution and other environmental
damage. States shall also cooperate in an expeditious and more
determined manner to develop further international law regarding
liability and compensation for adverse effects of environmental
damage caused by activities within their jurisdiction
■ Principle 15 - precautionary approach shall be widely applied by
States according to their capabilities. Where there are threats of
serious or irreversible damage, lack of full scientific certainty shall
not be used as a reason for postponing cost-effective measures to
prevent environmental degradation.

WATER POLLUTION + EXPERT TRIBUNALS

A.P. pollution Control Board v M.V. Nayudu [ 1999 SC] [Nayudu Case]
● Facts:
 ○ Vegetable oils were listed as being hazardous + categorized under ‘red.’
Certain industries could not be established 10km from the two lakes
○ respondent sought to manufacture certain oils for which they purchased 12
acres of land
○ AP Gov stated that so long as certain steps were taken and an NOC was
sought from AP Pollution Board, such restriction of 10 km may be done
away with. (This was for Glycerine and Castor oil alone) - the conditions
were that a consent from the state authority be sought that the location is
not problematic from an environmental perspective
○ board rejected the application since it fell within the 10 Km radius
● Petitioner
○ A.P. Pollution Control Board contends that categorisation of industries into
red, green and orange had already been made prior to the notification + that
in that notification also "Vegetable oils including solvent extracted oils"
(Item No.7) and `Vanaspati Hydrogenated Vegetable oils for industrial
purposes (Item 37)" were also included in the red category.
○ company could not have started civil works unless NOC was given by the
Board.
● Defendant
○ appealed under section 28 of the Water Act.
○ adopted latest eco-friendly technology + industry will not discharge any
acidic effluents + solid wastes which are the by -products are saleable.
● Held
○ Matter of expert tribunals:
■ Lord Woolfe: need for a multi-faceted, multi-skilled body which
would combine the services provided by existing Courts, Tribunals
and Inspectors in the environmental field.
■ Article 32 + 136 + 226 = complex issues relating to environment and
pollution, science and technology have been arising and in some
cases, this Court has been finding sufficient difficulty in providing
adequate solutions to meet the requirements of public interest,
environmental protection, elimination of pollution and sustained
development.
■ these matters sometimes require day to day hearing which, having
regard to other workload of this Court, it is not always possible to
give urgent decisions.
 ■ lack of uniform judicial system which is fit to combine legislations
relevant to the environment and assist in technical matters
● fall short of a combination of judicial and scientific needs.
■ Principle of Good Governance
● Need for modification of our statutes, rules and notifications
by including adequate Judicial & Scientific inputs.
■ Land and Environment Court of New South Wales in Australia,
established in 1980
● superior Court of record + composed of 4 Judges and 9
technical and conciliation assessors.
■ GOI should bring about appropriate amendments in the
environmental statutes, Rules and notification to ensure that in all
environmental Courts, Tribunals and appellate authorities there is
always a Judge of the rank of a High Court Judge or a Supreme
Court Judge, - sitting or retired - and Scientist or group of Scientists
of high ranking and experience. [Suggested by MC Mehta v. UOI
[Shriram], 1986]
■
○ uncertain nature of scientific opinions:
■ U.S. Supreme Court= Daubert v. Merrel Dow Pharnmceuticals
● there are important differences between the quest for truth in
the Court-room & quest for truth in laboratory.
● Scientific conclusions are subject to perpetual revision.
● Law must resolve disputes finally and quickly.
○ Precautionary Principle + new Burden of Proof - Vellore Case:
■ precautionary Principle, PPP and the special concept of Onus of
Proof have now emerged and govern the law in our country too
○ Special Burden of Proof in Environmental cases
■ Vellore case
● 'onus of proof is on the actor or the developer/industrialist to
show that his action is environmentally benign.

ENVIRONMENTAL IMPACT ASSESSMENT

Goa Foundation v. Konkan Railway Corporation and others [1992]
● Provision
○ Constitution= Articles 21 and 226
○ EPA = Section 3
■ Under Section 3(2)(v) of the EPA the Ministry of Environment has
issued Notification dated February 19, 1991 and restrictions on the
setting up or extension of industries, operations or processes in the
coastal regulation zone (C.R.Z.) are prescribed,
○ Railways Act, 1890 - Section 11
○ Forests (Conservation) Act, 1980 - Section 2
○ Land Acquisition Act, 1894 - Section 17
● Facts:
○ Central Government wanted to build a railway line = incorporated the Konkan
Railway Corporation.
○ Goa Foundation filed an Article 226 writ petition
● Goa Foundation’s Contentions
○ rail line has been planned without an adequate EIA and an Environmental
Management Plan (EMP) = destructive of the environment and the ecosystem =
Article 21
○ Statutory Clearance under S.3 of EPA, 1986 must be obtained if rivers, creeds,
basins and backwaters are being crossed by the rail line.
○ Khazan islands would be heavily impacted by the construction.
○ prior approval under S.2 of the Forests (Conservation) Act has not been sought
even though the railway line passes through forest land.
○ In that particular Coastal Regulation Zone (CRZ), bunding or disturbing the
natural course of water is a prohibited activity, and the railway line’s construction
is thus prohibited.
● Konkan Railways’ Contentions:
○ services are internationally recognized and manned by eminent experts in the field
of ecology, environment and allied disciplines.
○ project team reported that there would be no air pollution, no significant noise
pollution, and the green forest and marine life would not be adversely affected.
○ provisions of Environment Act are not binding
○ bunds system remains unaffected, no interference with natural tides
● Held
○ claim of the petitioners that the alignment would have devastating and irreversible
impact upon the khazan lands is without any foundation
○ extent of damage is extremely negligible
 ○ public project of such a magnitude =undertaken for meeting the aspirations of the
people = cannot be defeated on such considerations.
○ Because of an adverse impact upon a small area of 30 hectares of Khazan lands,
the benefit which will be derived by a large number of people by construction of
the rail line cannot be brushed aside
○ No development is possible without some adverse effect on the ecology and
environment but the projects of public utility cannot be abandoned and it is
necessary to adjust the interest of the people as well as the necessity to maintain
the environment.
○ balance has to be struck between the two interests and this exercise must be left to
the persons who are familiar and specialized in the field.
○ assumption of the petitioners that the exercise undertaken by the Corporation for
providing a rail line is an industry is entirely unjustified.
■ expression "industries, operations or processes etc." cannot bring
within its sweep the activities of providing a rail line.
○ contention that the activities of bunding undertaken by Corporation are prohibited
activities under the CRZ is fallacious.
■ reference to the bunding in the Notification must be read in the context of
setting up industries or any operations or processes in respect of such
industries.
■ rail lines is not an industry = work of bunding is not a prohibited activity
○ EPA = no application in respect of work undertaken in exercise of powers
conferred under Section 11 of the Railways Act, 1989.
■ Section 11 = notwithstanding anything contained in any other law, the
Railway Administration may, for the purposes of constructing or
maintaining a railway, make or construct in or upon, across, under or over
any lands, or any streets, hills, valleys, roads, streams, or other waters,
rivers as it thinks proper.
■ wide ambit + non-obstante Clause makes it clear that provisions of the
Environment Act NOT applicable

B.K. Sharma v. Union of India [2005]

● Facts
○ 2004, the petitioner = against the construction of a blast furnace and ductile
iron casting pipe near Kutch as the necessary Environmental Clearance was
not procured.
● as construction had commenced without the required environmental clearance, the
Respondent 5 had violated a provision of the law and hence, the entire
construction was to be demolished.
 ● decision of the Central Government to reject a personal hearing was a violation of
the principles of natural justice.
● EIA must be done in conformity with the Notification and that any derogation
from the same must mean that the projects construction be stopped. [MC Mehta]
● notification 1994, as per the amendment, required only Environmental clearance
before the expansion of the project. The amendment dealing with the construction
of new projects requiring clearance was repealed in 1997.
● as construction work had commenced in good faith, it has been argued that only
penal
● there existed no “right” for the petitioners to be heard by the Central Government
under the order of the Court and that this was only to be done based on consensus.
● While construction had commenced on the blast furnace after receiving only an
NOC, the respondents were under the belief that this was all that was required.
Moreover, they had subsequently received the appropriate clearance under the
EPA and hence, the same cannot be treated as ex post clearance.
● pipe manufacturing plant did not require additional clearance under the
Notification. The word “individual” cannot mean clearance for each and every
foundry
● fair hearing does not mean the opportunity to be orally heard. It may also include
the opportunity to make written submissions that are taken into account

OTHER CASES
Narmada Bachao Andolan v. UoI
Area of Law: Sustainable Development, Precautionary Principle, Article 21,
Environmental Clearances, Dam as Industry

● Facts:
○ Sardar Sarovar Dam was to be built upon the Narmada River. NBA
protested this Dam due to the issues caused to the environment
○ Threat posed to agricultural + forest land, loss of biological and aquatic
diversity.
○ Dam will disrupt downstream fisheries, increase the prospect of insect-
borne diseases
● Petitioner (NBA)
○ execution of Sardar Sarovar Project (SSP) without a comprehensive
assessment and evaluation of its environmental impacts = violation of
Article 21 right to life
 ○ conditional clearance and the conditions imposed by the Ministry of
Environment and Forests on the SSP had been violated.
○ In cases pertaining to the environment, the onus of proof is on the person
who wants to change the status quo and, therefore, it is for the respondents
to satisfy the Court that there will be no environmental degradation. (relied
on the MV Nayudu Case)
● Union of India
○ petitioners have given a highly exaggerated picture of the submergence and
other impact
○ benefits substantially outweigh the costs of the immediate human and
environmental disruption.
○ Without the dam, the long term costs for people would be much greater &
lack of an income source for future generations would put increasing
pressure on the environment
○ With the construction of the dam, water availability and soil moisture will
increase and support varieties of plants and animals.
● Judgement
○ Precautionary Principle
■ When there is a state of uncertainty due to lack of data or material
about the extent of damage or pollution likely to be caused then, in
order to maintain the ecology balance, the burden of proof that the
said balance will be maintained must necessarily be on the industry
or the unit which is likely to cause pollution.
■ where the effect on the ecology or environment of setting up an
industry is known = then what mitigating steps can be taken to offset
the same.
■ Merely because there will be a change is no reason to presume that
there will be ecological disaster. It is when the effect of the project is
known then the principle of sustainable development would come
into play
○ A dam is neither a polluting industry nor a nuclear establishment.
■ construction of a dam undoubtedly would result in the change of
environment but it will not be correct to presume that the
construction of a large dam like the Sardar Sarovar will result in
ecological disaster.
■ Therefore MV Nayudu and the Precautionary Principle will not
apply.
 ○ Environmental Clearance
■ Various studies relating to environmental impact had been carried
out
■ There are different facets of the environment and if in respect of a
few of them adequate data was not available it does not mean that
the decision taken to grant environmental clearance was in any way
vitiated.

ND Jayal Case v. UOI (Tehri Dam) (2004)

Area of Law: Sustainable development, Article 21, rehabilitation, safety of projects,
environmental clearance
● Facts
○ contended from Petitioner that environmental clearance which was granted
on July 19, 1990 is without proper application of mind and, therefore, the
dam construction should not be allowed to proceed
● Petitioner
○ structure of the dam itself is not safe + its existence increases the seismic
vulnerability of the entire Himalayan region.
○ By way of abundant caution they want the concerned authorities to conduct
3D Non- Linear Test to evaluate the earthquake susceptibility of the dam
○ lands have not been acquired as yet for the purpose of rehabilitation and the
affected population is not rehabilitated.
● Defendants
○ such tests are neither practical nor necessary
○ studies related to site specific assessment of seismicity, testing of fill
materials for determining dynamic properties = indicate that design has
been found safe against the worst earthquake scenario
● Held
○ environmental clearance = without proper application of mind + dam
construction should not be allowed to proceed.
○ However, when two or more options are possible and the Government takes
a policy decision it is then not a function of the Court to re-examine the
matter by way of appeal (Narmada Bachao Andolan v. Union of India).
○ Experts in science may themselves differ in their opinions while taking
decisions on matters related to safety and allied aspects. The opposing
viewpoints of the experts will also have to be given due consideration
 ○ When the Government or the concerned authorities after due consideration
of all viewpoints and full application of mind took a decision, then it is not
appropriate for the Court to interfere.
○ If any such decision is based on irrelevant consideration or non-
consideration of material or is thoroughly arbitrary, then the Court will get
in the way
○ if the Government decided not to conduct such tests upon the opinion of the
concerned expert bodies, then the Court cannot advice the Government to
go for such tests unless malafides, arbitrariness or irrationality is attributed
to that decision.
○ SD
■ Right to environment is a fundamental right.
■ concept of 'sustainable development' is to be treated an integral part
of 'life'
○ Rehabilitation is not only about providing just food, clothes or shelter. It is
also about extending support to rebuild livelihood by ensuring necessary
amenities of life.
■ Article 21

Mining
Lafarge Umiam Mining Pvt. Ltd [2011]
● EPA, 1986, Section 3; Forest Conservation Act, 1980, Section 2, 3; Mines and Minerals
Act, Section 5; National Forest Policy, 1988
● Facts:
○ Lafarge Cement Ltd. ('LSCL' for short) = incorporated in Bangladesh = cross-
border cement manufacturing project
○ captive limestone mine = Meghalaya = leased out in favour of subsidiary of
LSCL.
○ Lafarge made representations that the limestone mines did not involve the
diversion of forest land and in support provided letters from the Khasi Hills
Autonomous District Council
○ Trouble started in 2006 when Chief Conservator of Forests (“CCF”) for
Meghalaya wrote to MoEF stating that he had visited the mining area and noted
that the mining site was surrounded by thick natural vegetation.
● group of 21 tribal activists under the banner of the Shella Action Committee filed a
petition alleging that Lafarge was mining on forest land, and did not have the required
clearances.
● crucial questions in the case were whether Lafarge had willfully subverted the process of
getting clearance to mine on forest land, and whether it was aware of the fact that the land
was classified as forest as per law.
● Contentions
○ forest cover in the mining area was tropical deciduous forest, and in terms of
India’s Forest Policy, 1988, no development could be permitted in such forests.
● Held
○ constitutional doctrine of proportionality should apply to environmental matters
○ apply established principles of natural justice, such as whether all relevant factors
were taken into account at the time of coming to the decision, whether the
decision was influenced by extraneous circumstances, and whether the decision
was in accordance with the legislative policy
○ If these circumstances were satisfied, the decision of a government authority (in
this case the MoEF) would not be questioned by the Court.
○ Lafarge had gone about getting its approvals in a bona fide manner, and that the
company believed the land was not a forest land.
■ Lafarge had done all that it could have on the regulatory front, but it
turned out that the mining site was in a forested area.
○ court said the company had taken the consent of the real custodians of the land—
the Khasi Hills Autonomous District Council before it started mining
○ brought jobs, schools, healthcare and other benefits to the local communities.
○ SC held that it was satisfied that limestone mining has been going on for centuries
in the area and it was intertwined with the culture and the unique land holding and
tenure system of the Nongtrai village
● Directives for future cases
○ National Forest Policy, 1988:
■ Court upheld that principles of Policy, 1988 must govern the grant of
forest clearances under the Forest Conservation Act, 1980 .
■ aim= to ensure environmental stability and maintenance of
ecological balance
■ Court has now made it mandatory for decision-making bodies to
consider the provisions of the National Forest Policy, 1988 before
granting project approvals.
○ Establishment of independent Regulator
■ Under Section 3(3) of the Environment (Protection) Act, 1986, the
Central Government should appoint a National Regulator for
appraising projects, enforcing environmental conditions
○ Panel of Accredited Institutions:
 ■ confronted by contradicting reports of various authorities submitted
by the project developer = creates confusion and delays i
■ MoEF should prepare a Panel of Accredited Institutions from which
alone the project proponent should obtain the environmental impact
assessment report on the terms of reference formulated by the
MoEF.
○ Prior Site Inspection by MoEF:
■ To avoid future controversies regarding misrepresentation of the
status of project land by the project developer
■ Upon inspection, if it is found that the “forest land” is involved, then
the project developer will be required to apply for prior forest
clearance.

AIR POLLUTION
● Transboundary pollution
○ addressing local problems can often lead to a translocation of the impacts of
pollutants over large distances.
○ Trail Smelter case: US v Canada
■ Canadian Mining company operated a large zinc and lead smelter
along the Columbia river
■ Sulphur dioxide emissions from two chimneys at the smelter had
damaged crops (wheat and oats), trees used for logging, and pastures
■ Arbitration + no state has the right to use or permit the use of its
territory in such a manner as to cause injury by fumes in or to the
territory of another of the properties = when the case is of serious
consequence and the injury is established by clear and convincing
evidence.
■ Although the Trail Smelter arbitration establishes a clear principle of
CIL, in practice it has been overtaken by negotiated treaties on trans
boundary air pollution. There are a number of reasons for this.
● First, there is the evidential difficulty of obtaining 'clear and
convincing evidence’ of the causal link between source and
effects of long range air pollution.
● Secondly, the principle is compensatory in nature in that it
seeks to pay for serious harm caused rather than prevent
future harm. Preventative measures can only be imposed
 through international agreement on the standards to be
employed.
● Thirdly, the requirement of 'serious consequences' is
problematic in that it is a flexible standard which may be
dependent upon the nature of the receiving environment
● Finally, in cases where the principle is clearly breached, the
relaxation of jurisdictional hurdles has increased the ability
of private entities to seek redress through national courts.
● 1979 Geneva Convention on Long-Range Transboundary Air Pollution, 1979
○ 1st real attempt to set up a formal framework of controls over air pollution
between nations
○ preventative in nature and contained no liability provisions.
○ treaty is more a statement of intent than a binding legal instrument.
○ Protocol on Sulphur Dioxide
■ first protocol on reduction of sulphur dioxide = originally agreed in
1985
■ more prescriptive protocol agreed in Oslo in 1994.
● to reduce sulphur dioxide emissions to 20 per cent of 1980
levels by 2010.
○ Protocol on NOX
■ Sofia, 1988
● 1985 Vienna Convention for the Protection of the Ozone Layer
● India
○ Unlike the Water Act, which was enacted by Parliament under Article
252(1) of the Constitution after securing enabling resolutions from 12
states, the Air (Prevention and Control of Pollution) Act of 1981 was
enacted by invoking the Central Government's power under Article 253 to
make laws implementing decisions taken at international conferences.
○ Although a central statute, executive functions under the Air Act are carried
out in the states by state pollution control boards. This delegation of
executive functions is permitted by Article 258(2) of the Constitution.
Article 258(3) requires the Central Government to compensate the states for
the cost of carrying out these delegated functions
● National Ambient Air Quality Standards (NAAQS) are notified for industrial,
residential and rural areas, and sensitive regions
● Noise standards are also prescribed under the Noise Pollution (Regulation and
Control) Rules of 2000 framed under the EPA)
M.C. Mehta v. Union of India (Taj Trapezium TTZ) 1997
important case in the relocation of industries linked to air pollution. Relocation due to
water pollution would be the Calcutta Tanneries case.
● Provision
○ Industrial Disputes Act, 1947 - Sections 25B, and 25F;
○ Water (Prevention and Control of Pollution) Act, 1974;
○ Air (Prevention and Control of Pollution) Act, 1981;
○ Environment Protection Act, 1986
● Facts
○ effluents from industries at Mathura = released sulphur dioxide combines
with oxygen in atmosphere to make sulphuric acid which combines with
moisture and comes down as acid rain, causing severe deterioration to the
exterior and interior of the Taj colouring the gleaming white surface
○ expert committee titled “Report on Environmental Impact of Mathura
Refinery” (Vardharajan Committee)
■ sources are all coal users consisting of thermal Power Plants
■ relocate the existing small industries, particularly the foundries
■ no new industry including small industries which can cause pollution
of the Taj Mahal
● NEERI Report
○ Sudden rises in concentration level are often recorded in all directions in
gaseous as well as participate pollutant depending upon the local micro
climatic conditions
○ Suspended Particle Matters (SPM) are also high
○ acidic emissions into the atmosphere at an alarming rate.
● Argument
○ Yellow marble +Fungal deterioration
○ Monument of international repute
● Held
○ Taj, apart from being cultural heritage, is an industry by itself. More than
two million tourists visit the Taj every year. (1997)
○ use of coke/coal by the industries emit pollution in the ambient air.
○ old concept that development and ecology cannot go together is no longer
acceptable.
○ PP - Vellore Case
○ PPP - Indian Council Case
 ○ workmen employed in the above-mentioned 292 industries shall be entitled
to the following benefits

FOREST CONSERVATION
NATURE LOVERS MOVEMENT v. STATE OF KERALA [2009]
● Facts:
○ 66,000 families = encroached upon forest area
○ These forest lands were used for non-forest purposes and some have been
converted into populated areas with structures and improvements
○ State of Kerala regularised this encroachment + State while doing this took
into account the socio-human issues including pressure of increasing
population
● Petitioners
○ State government should have followed the procedure as prescribed in
Section 2 of Forest (Conservation) Act, 1980.
○ Section 2 = approval of the Central Government is needed in such matters.
○ Since the Sate did not follow this, the petitioners argued that the de-
reservation should be void
● Held
○ If the Central Government had already agreed to the de-reservation. subject
to fulfilment of certain conditions, then the Court was satisfied with even a
‘substantial compliance’ by the State taking a more liberal approach to
solve the socio-human problem at hand
○ Retrospectively application of Sec. 2
■ ‘prior approval’ required in Section 2 of the Act cannot be applied
retrospectively
■ Section 2 would not apply to the occupation of the land prior to the
commencement of the Act in 1980 • Fundamentally, the cut off date
of being 01.01.1977 is a policy decision taken by the State
○ Compensatory Afforestation Scheme by the State was seen to be a
necessary effort in compensating for the diversion of the forest land

BIODIVERSITY
WWF-I v. Union of India (UOI) and Ors. (2013)
● "Protection of wild animals and birds" falls under List III, Entry 17B of Seventh
Schedule.
● Facts
○ population of Asiatic Lions in India has been restricted to the Gir NP +
Sanctuary alone, where they face threats due to man-animal conflict,
outbreak of possible epidemic or any natural calamity, etc.
■ Such actions may wipe out the whole population.
○ need for a second home for Asiatic Lions
○ Wildlife Institute of India ('WII') conducted studies - long term
conservation of lions at Gir.
■ WWI report found Kuno Wildlife Sanctuary (Madhya Pradesh) as
the most suitable habitat for re-introduction of the Asiatic lion.
○ Government of MP took up a massive re-location of villages
■ required the approval of Central Government under Section 2 of the
Forest Conservation Act. The approval was granted.
○ Chief Wildlife Warden of Gujarat = opined that there was no commitment
on the part of the State of Gujarat for providing lions and the State
Government had not agreed for the same.
○ Gujarat refused to a letter sent by the Minister of MoEF for translocation of
lions to Kuno.
○ PIL seeking a direction to the Respondents to implement the re-location
programme.
● Discuss : NBWL
○ TEMPERATURE:
■ Gujarat’s contention that the Lions would not be able to survive in
Kuno Palpur due to its extreme climatic conditions is not true.
○ PREY DENSITY:
■ While the overall prey densities of Gir are in the higher range of lion
densities while that of Kuno are in the medium to low density areas
of lions, the natural prey densities in Kuno are significantly higher
○ PAST FAILURES:
■ contention that translocation of Lions made in earlier occasion
during were unsuccessful = not correct.
■ In those instances, introduced areas were small and devoid of
adequate prey base and burdened with human population.
 ■ At present hunting is legally banned and proposed introduction area
is not only having enough prey base but also devoid of human
population.
○ Recommended that the translocation of lions from Gir area to an alternate
area, presently to the Kuno-Palpur Sanctuary, is the necessity of the hour
essential for conservation of lions.
● ANTHROPOCENTRIC v. ECO-CENTRIC
○ Anthropocentrism: Human interest focussed thinking that non-human has
only instrumental value to humans = humans take precedence
○ Eco-centrism: Nature-centred where humans are part of nature and non-
humans have intrinsic value.
○ approach should be eco-centric and not anthropocentric and we must apply
the "species best interest standard"
○ Article 21 = protects not only the human rights but also casts an obligation
on human beings to protect and preserve a specie becoming extinct,
conservation and protection of environment.
● OWNERSHIP AND POSSESSION OF WILD ANIMALS
○ No state, organisation or person can claim ownership or possession over
wild animals in the Forest.
○ Animals in the wild are properties of the nation for which no state can
claim ownership
● fundamental issue is whether the Asiatic lions should have a second home. The
cardinal issue is not whether the Asiatic lion is a "family member" or is part of the
"Indian culture and civilization", or the pride of a State but the preservation of an
endangered species for which we have to apply the "species best interest standard"
○ Approach made by SWBL and the State of Gujarat is an anthropocentric
approach, not eco-centric.
● "Scientific reasoning" for its re-location has to supersede the family bond or pride
of the people and we have to look at the species best interest especially in a
situation where the specie is found to be a critically endangered one and the
necessity of a second home has been keenly felt.
● CHEETAH TO KUNO
○ Kuno is not a historical habitat for African cheetahs and no material were
placed to establish that fact.
○ NBWL, which is Statutory Board established for the purpose under the
Wildlife Protection Act was also not consulted.
 ○ MoEF had not conducted any detailed study before passing the order of
introducing foreign cheetah to Kuno.
○ taken by MoEF for introduction of African cheetahs first to Kuno and then
Asiatic lion, was held as arbitrary and illegal and clear violation of the
statutory requirements of the Wildlife Protection Act.
○ order of MoEF to introduce African Cheetahs into Kuno = quashed.

Coastal Regulation Zone

S. Jagannath vs Union Of India (Shrimp Culture Case)
Area of Law: Precautionary Principle, Polluter Pays Principle; Environmental Protection Act —
Sections 2(a), 2(b), 2(c), 2(e), 3, 5, 8, 15; Hazardous Waste (Management and Handling) Rules,
1989 — Rule 2(i), Rule 5; Water Act — Section 2(j), 2(k), 25, Coastal Regulation Zone
Notification

case brought into force for the first time the non-implementation of the CRZ
notification.
● Facts
○ Shrimp culture uses protein feed which is a highly polluting activity. Bio-
degradable if properly treated. Further, the life of a shrimp pond is only 5-10
years, after which the land is unfit for any other use also.
○ Serious economic, environmental and social problems
○ Despite the Coastal Zone Regulation Notification, 1991, these industries are still
coming up on coastal areas and polluting the environment. Must be enforced.
● The Notification:
(a) Coastal stretches of bays, seas, estuaries, etc. which are influenced by tidal
action upto 500m from the high tide line and the land between the high tide
line and the low tide line will be declared a ‘Coastal Regulation Zone’
('CRZ').
(b) Stoppage of intensive and semi-intensive type farming in these ecologically
fragile coastal areas;
● Petitioner
○ modern techniques of shrimp farming are highly polluting + detrimental to the
coastal environment and marine ecology. Only the traditional and improved
traditional systems of shrimp farming which are environmentally friendly should
be permitted.
 ○ Para 2(1) of the Notification, 1991 — Setting up of shrimp farms on CRZs is
totally prohibited:
○ Shrimp culture farms are discharging highly polluting effluent which is
"hazardous waste", under the Hazardous Waste (Management and Handling)
Rules, 1989.
■ Rule 2(i) defines ‘hazardous wastes
● Shrimp culture effluents fall under Category No. 12 of the
Schedule, therefore, they are hazardous wastes.
■ Rule 5(4) — Requires State Pollution Control Board not to issue an
authorisation unless it is satisfied that the operator of a facility or an
occupier, as the case may be, possesses appropriate facilities, technical
capabilities and equipment to handle hazardous waste safely.
● Respondent
○ shrimp farm is an industry which is directly related to the water front and cannot
exist without fore-shore facilities
● Alagarswamy report [guiding report for framing regulations on shrimp aquaculture]:
○ Problems highlighted
■ Barriers to prevent water from ceding are built around the farms. This is
problematic since these farms are otherwise natural drainage areas for
floods, which is now blocked.
■ access to the beach for traditional fishermen is blocked.
■ Corporates have purchased large amounts of land, which has subsumed
common drinking water wells.
■ Salinization of land and water. Sea water is used for the breeding of
shrimp
■ Destruction of mangrove areas and paddy fields for construction of shrimp
farm
● Judgement
○ Hazardous Waste (Management and Handling) Rules, 1989
○ Water (Prevention & Control of Pollution) Act, 1974
○ Fisheries Act, 1897
○ Wild Life Protection Act, 1972
○ Forest Conservation Act, 1980
○ Sustainable development should be the guiding principle for shrimp aquaculture.
○ environmental impact before permission was granted to install commercial shrimp
farms.
○ inter-generational equity and the compensation for those who were affected and
prejudiced.
○ no shrimp culture ponds should be constructed within the CRZ;
 ○ all the infrastructure set up within the CRZ such as shrimp culture farms should
be demolished and removed;
● Environmental Pollution Act, 1986 perspective:
● Effluents discharged by commercial shrimp — covered by the definition of
environmental pollutant [Section 2(b)], environmental pollution [Section
2(c)] and hazardous substance [Section 2(e)].
● Therefore, Section 7 [Persons carrying on industry, operation, etc., not to
allow emission or discharge of environmental pollutants in excess of the
standards] and Section 8 [Persons handling hazardous substances to comply
with procedural safeguards] will be applicable to the same.
● The NEERI reports indicate that the effluents discharged by the farms at
various places were excess of the prescribed standards.
● Therefore, liability must be attached under Section 15 [Punishment for the
contravention of the provisions of the Act].
● Water Act perspective:
● Sections 2(j) and (k) — definition of ‘stream’ and ‘trade effluent’
● Section 25 — no person shall, without the previous consent of the State Board
establish any industry, operation or process, of any treatment and disposal
system which is likely to discharge sewage or trade effluent into a stream in
well or sewer or on land.
● Shrimp culture industries are oblivious to these provisions, and have not
obtained permission from the concerned SPCBs.