CONTENTS

Chapter 1 Fundamental Principles of Environmental Protection 3

Case: Indian Council for Enviro-Legal Action v. Union of India [AIR (1996) SC
1446] 3
Case: Indian Council for Enviro-Legal Action v. Union of India, [(2011) 12 SCC
768] 6
Case: Vellore Citizens Welfare Forum v. Union of India [AIR (1996) SC 2715] 6
Case: Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751 9
Case: Intellectuals Forum, Tirupathi v. State of A.P [AIR (2006) SC 1350] 10
Case: Jitendra Singh v. Ministry of Environment & Ors., Supreme Court, Civil
Appeal No. 5109/2019, decided on 25 November 2019 16

Chapter 2 Constitutional Perspective 18

Case: Subhash Kumar v. State of Bihar [AIR (1991) SC 420] 18
Case: Rural Litigation and Entitlement Kendra v. State of U.P [(1985) 2 SCC 431]
19
Case: M.C. Mehta v. Union of India [AIR (1997) SC 734] (Taj Trapezium Case)21
Case: M.C. Mehta v. Kamal Nath [(1997) 1 SCC 388] 22
Case: M.C. Mehta v. Kamal Nath, [AIR (2000)SC 1997] 26
Case: M.C. Mehta v. Kamal Nath [2002 (2) SCALE 654] 28
Case: Sachidanand Pandey v. State of West Bengal [AIR (1987) SC 1109] 28

.Chapter 3 Prevention and Control of Water Pollution 30

Case: M.C. Mehta v. Union of India, [AIR (1988) SC 1037 ] 30
Case: M.C. Mehta v. Union of India, [AIR (1988) SC 1115] 32
Case: M/s Delhi Bottling Co. Pvt. Ltd. v. Central Board for the Prevention and
Control of Water Pollution [AIR (1986) Del. 152] 33
Case: Municipal Council, Ratlam v. Vardichand [(1980) 4 SCC 162] 35
Case: State of M.P. v. Kedia Leather & Liquor Ltd. [AIR (2003) SC 3236] 36
Case: Forum Prevention of Envn. & Sound Pollution v. Union of India [AIR (2005)
SC 3136] 38
Case: Church of God (Full Gospel) in India v. KKR Majestic Welfare Colony
Welfare Association [AIR (2000) SC 2773] 43

Chapter 4 Environmental Protection 45

Case: S. Jagannath v. Union of India [AIR (1997) SC 811] 45
 Case: MC Mehta v Union of India [(1987) AIR 1086] (Oleum Gas Leak case) 47
Case: Union Carbide Corporation v Union of India, [AIR (1992) SC 248] 49

Chapter 5 National Green Tribunal(NGT) 52

Case: Techi Tagi Tara v. Rajendra Singh Bhandari & Ors, Supreme Court, [Civil
Appeal No. 1359/017, Judgement of 22 September 2017.] 52

Chapter 6 Protection and Conservation of Forests, Biodiversity and Wildlife 54

Case: Orissa Mining Corporation v. Ministry of Environment and Forest [(2013)6
SCC 476] 54
Case: Sansar Chand v State of Rajasthan [2010 (10) SCC 604] 62
Case: Centre For Environment Law, WWF-I v. Union of India & Others [Supreme
Court, I.A. No. 100 in Writ Petition (Civil) No. 337 of 1995, decided on 15 April
2013] 64
Case: Divya Pharmacy v. Union of India, High Court of Uttarakhand, [WP
3437/2016, Decided on 21 December 2018.] 70
Chapter 1 Fundamental Principles of Environmental
Protection
Case: Indian Council for Enviro-Legal Action v. Union of India [AIR
(1996) SC 1446]
Judgement delivered by: B.P. Jeevan Reddy, J
Facts: There are Chemical plants in the village Bichhri, which produce
H-Acid which has a market in Western countries. In the process to produce
H-Acid, Iron and Gypsum based sludge (Highly Toxic Waste) is released by
these Chemical Plants untreated. As a result of
which:
➔ Wells got polluted.
➔ Cattles are dying
➔ Soil has become unfit for cultivation
Observations of SC:
➔ Article 48-A ​is one of the Directive Principles of State Policy. It says
that the State shall endeavour to protect and improve the
environment and to safeguard the forests and wildlife of the country.
➔ Article 51-A sets out the fundamental duties of citizens. One of them
is “(g) to protect and improve the natural environment including
forests, lakes, rivers and wildlife, and to have compassion for living
creatures…..”
➔ Due to the problem of increasing pollution of rivers and streams in the
country the Parliament has brought the ​Water (Prevention and
Control of Pollution) Act, 1974 (Water Act). Here are some
important provisions of Water Act:
◆ Sec 24(1) Imposes a general prohibition that no person shall
knowingly permit poisonous, noxious or polluting matter into a
stream or river.
 ◆ Sec 25 (1) permits exception to the Sec 24(1) through consent
of the State Board for such discharge.
◆ Sec 33 empowers the Pollution Control Board to apply to the
court, not inferior to that of a Metropolitan Magistrate or a
Judicial Magistrate of the First Class, to restrain any person
causing pollution.
◆ Sec 33-A, which has been introduced by Amendment Act 53 of
1988, empowers the Board to order the closure of any industry
and to stop the electricity, water and any other service to such
industry if it finds such a direction necessary for effective
implementation of the provisions of the water Act.
➔ Some important provisions of ​the Environment (Protection) Act,
1986:
◆ Sec 3 empowers the Central Government “to take all such
measures as it deems necessary or expedient for the purpose
of protecting and improving the quality of the environment and
preventing, controlling and abating environmental pollution”
◆ Sec 5 empowers the Central Government to issue appropriate
directions to any person, officer or authority to further the
objects of the enactment.
◆ Sec 6 confers rule-making power upon the Central Government
in respect of matters referred to in Sec 3.
◆ Sec 7 says that “no person carrying on any industry, operation
or process shall discharge or emit or permit to be discharged or
emitted any environmental pollutant in excess of such
standards as may be prescribed”
➔ The Central Government has made ​the Hazardous Wastes
(Management and Handling) Rules, 1989 in exercise of the power
conferred upon it by ​Sec 6 of the Environment (Protection) Act.
prescribing the manner in which the hazardous wastes shall be
collected, treated, stored and disposed of.
RULE OF STRICT LIABILITY v. ABSOLUTE LIABILITY
➔ The rule of strict liability is laid down by English Courts in the case of
Ryland v. Fletcher.
The rule of Absolute liability is laid down by Indian Courts in the
Oleum Gas Leak case [AIR 1987 SC 1086] by a Constitution
Bench. In this rule even the defences applicable in the rule of strict
liability were held to be not applicable in the rule of absolute liability.
➔ As per Indian Cases the Rule of Absolute Liability is to be applied as
it allows an hazardous industry to set up if the industry in its project
plans includes potential accident cost that might happen due to
escape of such hazardous substance.
➔ The rationale of absolute Liability is that it is the enterprise alone
which has the resource and guard against hazards or danger and not
the person affected.
➔ By applying this principle the respondents shall be absolutely liable to
the harm done.
POLLUTER PAY PRINCIPLE
➔ The question of liability of the respondents to defray the costs of
remedial measures can also be looked into from another angle, which
has now come to be accepted universally as a sound principle, viz.,
the “Polluter Pays” principle.
➔ The Polluter Pays principle demands that the financial costs of
preventing or remedying damage caused by pollution should lie with
the undertakings which cause the pollution, or produce the goods
which cause the pollution.
➔ Under the principle it is not the role of Government to meet the costs
involved in either prevention of such damage, or in carrying out
remedial action, because the effect of this would be to shift the
financial burden of the pollution incident to the taxpayer.
➔ Thus, according to this principle, the responsibility for repairing the
damage is that of the offending industry. ​Sections 3 and 5 of the
Environment (Protection) Act, 1986 empowers the Central
Government to give directions and take measures for giving effect to
this principle.
Decision: The court finds the respondent industries guilty and draws out
their liability in monetary terms.

Case: Indian Council for Enviro-Legal Action v. Union of India, [(2011)

12 SCC 768]
Judgement delivered by: Dalveer Bhandari, J
This case is a follow up case of the above mentioned case as the
guidelines issued were not compiled for 15 years and hence fine of
Rs. 10 lakhs is imposed in furtherance of timed compliance of the
guidelines issue.

Case: Vellore Citizens Welfare Forum v. Union of India [AIR (1996) SC

2715]
Judgement delivered by: Kuldip Singh, J.
Facts: This petition is filed under Article 32 as a PIL seeking directions
against the pollution which is being caused by enormous discharge of
untreated effluent by the tanneries and other industries in the State of Tamil
Nadu.
Observations of SC:
➢ The Traditional concept that development and Ecology are opposed
to each other, no longer remain acceptable.
Why? Introduction of ​Sustainable Development which on the contrary
appeals for a balance between Development and Ecology.
Brief History: The concept of Sustainable Development was brought
1st time in the Stockholm Declaration of 1972. Then again in 1987, in
Brundtland Report, the talks against begin and iN 1991 and 1992 in
Rio Conference “Caring for Earth - Sustainable Living” the concept
was encapsulated.
➢ Salient Principles of “Sustainable Development”:
○ Inter Generational Equity.
○ Use and Conservation of Natural resources.
 ○ Environmental protection
○ Precautionary Principle
○ Polluter Pay Principle
○ Obligation to Assist and cooperate.
○ Eradication of Poverty
○ Financial Assistance to Developing countries
➢ Precautionary Principle​: In context of Municipal Law:
○ Environmental Measures: By State Government and statutory
authorities must ANTICIPATE, PREVENT & ATTACK the
causes of environmental Degradation.
○ 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.
○ “Onus of proof” is on the actor or the developer to show that his
action is environmentally benign.
➢ Precautionary Principle and Polluter Pay Principle are accepted as
part of law of the land under Article 21, 47, 48-A, 51-A(g) of the
Constitution of India and also in Water, Air and Environment Act as
passed by the Parliament.
Also since customary International law is not in contrary to Municipal
law and hence shall be deemed to have incorporated in the domestic
law and shall be followed by courts of law.
➢ Article 21: Right to life with dignity.
The SC expanded this negative right in 2 ways:
1) Any law affecting personal liberty shall be reasonable, fair and
Just.
2) Court recognized several unarticulated liberties that were implied
by Article 21
And it is by the second way that the SC interpreted the right to life
and personal liberty to include ​a right to a clean environment​.
Rationale: A healthy environment is an essential aspect of the Right
to life and not only for the human body but also for other animals on
 the planet. Violations of the right to a healthy environment is
potentially a violation of the basic right to life.

Decision: There are more than 900 tanneries operating in the five districts
of Tamil Nadu. Some of them may, by now, have installed the necessary
pollution control measures; they have been polluting the environment for
over a decade and in some cases even for a longer period. This Court has
in various orders indicated that these tanneries are liable to pay pollution
fine. The polluters must compensate the affected persons and also pay the
cost of restoring the damaged ecology.
Note: Rule :‘sic utere tuo, ut alienum non leadas’ means use your own
property in such a manner as not to injure that of another.

Case: Narmada Bachao Andolan v. Union of India, AIR 2000 SC 3751

Judgement delivered by: B.N. KIRPAL, J. (For Dr. Anand, C.J. and himself)
(Majority View)
Facts: ​A dam is to be constructed on the Narmada basin and since the
height was increased of the dam than earlier proposed and also an
environmental clearance was also granted to the project.
It is against this the PIL under Article 32 is been sought by the petitioner
thereby contending that the Environmental Clearance granted was without
application of the mind. Hence, the project shall not be allowed to proceed
further.
Observations of SC:
General issues relating to Tribal s Displacement
u/Article 21 of Constitution of India.
➔ Forcible displacement of tribals and other marginal farmers from their
land and other sources of livelihood “for a project” which is NOT in
NATIONAL INTEREST is a violation of Article 21.
➔ ILO Convention No. 107 stipulates that tribal populations shall not be
removed from the lands without their free consent except in
accordance with National laws and regulations for reasons:
A. National Security
B. Interest of National Economic development
➔ In cases where removal of population is necessary they should be
provided with lands of quality at least equal to that of lands previously
occupied by them.
➔ It cannot be stated that building dams is not in the interest of national
economic development.
ENVIRONMENTAL ISSUES
➔ The Petitioner contends by applying the Authorities:
A.P. Pollution Control Board case read with ​Vellore Citizens’
Welfare Forum v. Union of India [AIR 1996 SC 2715].
The precautionary principle suggests that where there is an
identifiable risk of serious or irreversible harm, including, for example,
extinction of species, widespread toxic pollution in major threats to
essential ecological processes, it may be appropriate to place the
burden of proof on the person or entity proposing the activity that is
potentially harmful to the environment.
 ➔ The SC recorded the following views upon it while rejecting the above
contention of the Petitioner.
◆ There are 2 types of environmental cases:
1. Whose effects are known? Approach shall be mitigative
steps while incorporating sustainable development principles.
2. Whose effects are not known? Lacking sufficient scientific
data, then the role of Burden of proof as mentioned in the
Vellore​ Citizens​ case, comes into play.
◆ The case of ​A.P. Pollution Control Board there the industry
was a polluting industry but here in the case of Dam
construction is not a polluting industry. Also the effects of
construction of Dams are well known to us. Henceforth ​A.P.
The Pollution Control Board ​case has no role to play.
Decision: The SC poses caution where “courts in exercise of their
Jurisdiction will not transgress into the field of policy decision”, The court's
role is to look whether policy do not violate any law or Fundamental Rights
as per Constitution.
The Court in the present cases do not find any such violation of law.
[Note: The dissenting (minority view of Bharucha J.) view is primarily based
as to the manner the environmental clearance was done, not compiled with
the studies made. The Petitioners are not guilty of laches as they filed the
petition when it was going on.]

Case: Intellectuals Forum, Tirupathi v. State of A.P [AIR (2006) SC

1350]
Judgement delivered by: Dr. Ar. Lakshmanan, J
Facts: T​he appellants in this case complained about the systematic
destruction of percolation, irrigation and drinking water tanks in their town,
and alienation of the tank bed land to the Urban Development Authority and
the A.P. Housing Board for the urban development of the land for housing
purposes. They stated that the tanks were being put to use not only for
irrigation purposes but also as lakes which were furthering percolation to
improve the groundwater table, thus serving the needs of the people in and
around these tanks.
The 2 tanks Avilala and Peruru alienation for housing purposes has been
challenged here in this case.
Issues:
1. Whether urban development could be given privacy over and above the
need to protect the environment and valuable freshwater resources ?
2. Whether the action of A.P. State in issuing the impugned GOs could be
permitted in derogation of Articles 14 and 21 of the Constitution as also the
directive principles of State policy and fundamental duties enshrined in the
Constitution?
3. Whether the need for sustainable development can be ignored, done
away with and cause harm to the environment in the name of urban
development?
4. Whether there are any competing public interests and if so how the
conflict is to be adjudicated/reconciled?
Observations of the SC:
JURISPRUDENTIAL ISSUE
➢ Conflict between protecting environment and social development
In the matter of ​M.C. Mehta v. Kamal Nath [(1997) 1 SCC 388]
recognises the classic struggle between :
Protect and preserve our As per changing needs of
rivers, forests, parks and increasingly complex society,
open lands in their pristine V. encroachment here upon
purity open land is considered
inevitable to change.
➢ What to do?
If law is there If no law is there
Court can serve as an Executive acting under the
instrument of determining doctrine of Public trust doctrine
Legislative intent in exercise of cannot abdicate Natural
their powers of Judicial review. resources and convert them into
private ownership/ for
 commercial use.
Except in cases where the courts
find it necessary and in good
faith for the benefit of the public.
➢ State’s responsibility to protect the environment is now a well
accepted notion in all countries. In the Corfu Channel case [ICJ Rep
(1949) 4] it was held by the ICJ that State is responsible for pollution
emanating within one’s own territory.
➢ United Nations Conference on the Human Environment,
Stockholm 1972 (Stockholm Convention), to which India was a
party.
The natural resources of the earth, including the air, water,
land, flora and fauna and especially representative samples of natural
ecosystems must be safeguarded for the benefit of present and future
generations through careful planning or management, as appropriate
Thus ​in the instant case​, there is no doubt about the fact that there is a
responsibility bestowed upon the Government to protect and preserve the
tanks, which are an important part of the environment of the area.
SUSTAINABLE DEVELOPMENT
➢ The concept of “sustainable development”. The concept, as defined
in the 1987 report of the World Commission on Environment and
Development (Brundtland Report) defines it as “​Development that
meets the needs of the present without compromising the ability of
the future generations to meet their own needs.​”
➢ In Essar Oil Ltd. v. Halar Utkarsh Samiti [(2004) 2 SCC 392] it was
held that the rapid increase in the population together with
consequential demands to sustain the population has resulted in the
concreting of open lands, cutting down of forests, the filling up of
lakes and pollution of water resources and the very air which we
breathe.
➢ Create Harmony between the Economic and social need and
Environment consideration as neither can be sacrified at the altar of
the other.
➢ In ​Indian Council for Enviro-Legal Action v. Union of India
[(1996) 5 SCC 281] also emphasizes upon adopting sustainable
development to achieve a balance between development needs and
environmental degradation.
PUBLIC TRUST DOCTRINE
➢ US Supreme Court in ​Illinois Central Railroad Co. v. People of the
State of Illinois, [146 US 37 : 36 L Ed 1018 (1892)] natural
resources held by the State as a “trustee” of the public, and can be
disposed of only in a manner that is consistent with the nature of such
a trust.
➢ The doctrine, in its present form, was incorporated as a part of Indian
law by this Court in ​M.C. Mehta v. Kamal Nath ​[(1997) 1 SCC 388]
and also in ​M.I. Builders (P) Ltd. v. Radhey Shyam Sahu [(1999) 6
SCC 464]​. In M.C. Mehta, Kuldip Singh, J., held that
○ Our legal system includes the public trust doctrine as part of its
jurisprudence.
○ The State is the trustee of all natural resources which are by
nature meant for public use and enjoyment,
○ The State as a trustee is under a legal duty to protect the
natural resources.
➢ The Supreme Court of California, in ​National Audubon Society v.
Superior Court of Alpine Country, [33 Cali 419] (MONO LAKE
CASE)​ held that
○ Public trust is more than an affirmation of State power to use
public property for public purposes.
 ○ It is an affirmation of the duty of the State to protect the
people’s common heritage of streams, lakes, marshlands and
tidelands
○ Surrendering the right only in those rare cases when the
abandonment of the right is consistent with the purposes of the
trust.
➢ To properly scrutinize such an action of government, Courts must
make a distinction between.
Government’s general obligation More demanding obligation
as to act for the public benefit which it may have as a trustee of
certain public resources.
➢ As per Prof. Joseph L. Sax “The Public Trust Doctrine in Natural
Resource Law : Effective Judicial Intervention”, Michigan Law
Review, Vol. 68, No. 3 (Jan. 1970) pp. 471-566, there are three
types of restrictions on governmental authority are often thought to be
imposed by the public trust doctrine:
1. the property subject to the trust must not only be used for a
public purpose, but it must be held available for us by the
general public;
2. the property may not be sold, even for fair cash equivalent;
3. the property must be maintained for particular types of use
(i) either traditional uses, or
(ii) some uses particular to that form of resources.
In the instant case​, it seems that the government orders, stands violative
of Principles 1 and 3, even if we overlook Principle 2 on the basis of the
fact that the Government ​is itself developing it rather than transferring it to a
third party for value (which is not the case in actual).
Therefore, our order should try to rectify these defects along with
following the principle of sustainable development as discussed above.
➢ The principle of “​Inter-Generational Equity​” has also been adopted
while determining cases involving environmental issues. This Court in
A.P. Pollution Control Board v. Prof. M.V. Nayudu [(1999) 2 SCC
718] ​held as under:
 ○ Principle 1.​- Man has the fundamental right to freedom,
equality and adequate conditions of life, in an environment of
quality that permits a life of dignity and wellbeing, and he bears
a solemn responsibility to protect and improve the environment
for the present and future generations…
○ Principle 2​.- The natural resources of the earth, including the
air, water, lands, flora and fauna and especially representative
samples of natural ecosystems, must be safeguarded for the
benefit of the present and future generations through careful
planning or management, as appropriate.
➢ In ​Dahanu Taluka Environment Protection Group v. Bombay
Suburban Electricity Supply Co. Ltd. [(1991) 2 SCC 539] held that
the Government concerned should consider the importance of public
projects for the betterment of the conditions of living of the people on
the one hand and the necessity for preservation of social and
ecological balances, avoidance of deforestation and maintenance of
purity of the atmosphere and water free from pollution.
➢ It is true that the tank is a communal property and the State
authorities are trustees to hold and manage such properties for the
benefits of the community and they cannot be allowed to commit any
act or omission which will infringe the right of the Community and
alienate the property to any other person or body.
Decision: ​On the facts of the present case, it seems that the respondents
intend to build residential blocks of flats for high and middle income
families, institutions as well as infrastructure for TTD. If the proposed
constructions are not carried on, it seems unlikely that anyone will be left
homeless or without their basic need for shelter.
The Court decides to accept the petition of the appellant and on facts of the
present case the court should do the most it can, to safeguard the two
tanks in question
Case: Jitendra Singh v. Ministry of Environment & Ors., Supreme
Court, Civil Appeal No. 5109/2019, decided on 25 November 2019
Judgement delivered by: Surya Kant J.:
Facts: The instant is appeal from NGT’s order under ​Sec 22 of the
National Green Tribunal Act, 2010 whereby appellant’s grievance against
allotment of local ponds to private industrialists has been ​dismissed
summarily without any adjudication of the lis or merits, but merely on the
basis of an affidavit filed by Respondent No. 5 (Greater Noida Industrial
Development Authority – hereinafter “GNIDA”) claiming that GNIDA was
developing bigger alternative water bodies.
Around 18.01.2017 the agents of a private body M/s Sharp
Enterprises Pvt. Ltd. (Hereinafter “Sharp”) attempted forcibly takeover a
common pond which had been in use by the local villages for over a
century.
ARGUMENTS ADVANCED
APPELLANTS
- Neither the mandatory environmental clearances under the
Environmental (Protection) Act, 1984 had been obtained by the
industrialists
- Nor the statutory authorities applied their mind that the project
would negatively impact the environment and human health.
- The Ramsar Convention and ​Rule 4 of the Wetland
(Conservation and Management) Rules, 2010 which prohibited
reclamation of wetlands, setting up or expansion of industries,
permanent construction or any other activity with potentially adverse
effects on ecosystem, sought cancellation of such illegal allotments
and protection of waterbodies.
Issue: ​Whether it is permissible for the State to alienate common water
bodies for industrial activities, under the guise of providing alternatives?
Observations of SC:
 ➔ Sec-22 of NGT Act, 2010 specifies that the nature of the appeal shall
be akin to a second appeal as specified under Section 100 of the
Code of Civil Procedure, 1908.
➔ In ​Hinch Lal Tiwari v. Kamala Devi [(2001) 6 SCC 496]​, this court
settled that ‘ponds’ were a public utility meant for common use and
held that they could not be allotted or commercialised.
➔ in ​Jagpal Singh v. State of Punjab [(2011) 11 SCC 396] ​and noted
that since time immemorial, certain common lands had vested in
village communities for collective benefit. Except in exceptional
circumstances when used exclusively for the downtrodden, these
lands were inalienable.
➔ It is uncontroverted, in the present case, that the Government Order
dated 03.06.2016 was a consequence of the aforecited judgment in
Jagpal Singh’s case.
➔ It is clear that industrial activities without any rationale classification,
unlike the narrow class exempted, do not serve a social public
purpose or benefit the local people, and thus will be hit by the
inalienability bar.
➔ Protection of such village commons is essential to safeguard the
fundamental right guaranteed by Article 21 of our Constitution. These
common areas are the lifeline of village communities, and often
sustain various chores and provide resources necessary for life.
➔ Waterbodies, specifically, are an important source of fishery and
much needed potable water. Many areas of this country perennially
face a water crisis and access to drinking water is woefully
inadequate for most Indians. Allowing such invaluable community
resources to be taken over by a few is hence grossly illegal.
➔ The 2016 Government Order by the State of UP, are violative of
Constitutional principles and are liable to be struck down.
Decision: The appeal is allowed and the order passed by the NGT has
been set aside.
Chapter 2 Constitutional Perspective
Case: Subhash Kumar v. State of Bihar [AIR (1991) SC 420]
Judgement delivered by: K.N. Singh, J.
Facts: The petition is by way of PIL for preventing the pollution of the
Bokaro ​river water from the sludge/ slurry discharge from the washeried of
the Tata Iron & Steel Co. Ltd.
How is the river getting polluted​? As this sludge gets deposited in the bed
of the river and gets settled on the land including the petitioner’s land,
which possess high risks to health of the people living in the area. The
problem of pure and clean drinking water has become acute.

ARGUMENTS ADVANCED
PETITIONER RESPONDENT
- The State Pollution Board - Proper steps have been
(SPB) instead of taking any complied as per Sec-25 and
action has permitted such 26 of Water (Prevention and
pollution. Control of Pollution) Act,
- The State of Bihar instead of 1974.
taking any action against the - The discharge does not affect
company has been granting the water quality of the
leases on payment of royalty Bokaro river adversely.
to various persons for the - SPB imposed conditions on
collection of slurry. the company to construct 2
settling tanks for settlement of
solids and rewashing the
same. Also SPB has been
monitoring the discharge of
effluents.
Observations of SC:
➔ Upon inspection on receipt of notice of instant PIL, it was found that
all 4 tanks had already been completed and work for strengthening of
the embankments of the tanks ws in progress.
 ➔ There was no discharge of effluent from the washeries into the river
except that there was negligible seepage from the embankments.
Hence no question of pollution of river water or affecting the fertility of
the land arises.
➔ River Bokaro remains dry for 9 months in a year and hence the
question of pollution of water by discharge of slurry into the water
does not arise.
➔ It is to be noted Slurry has a very high market value, as its ash
content is almost nil in coal particles and hence the company would
not like it to go into water.
➔ The Petitioner earlier purchased slurry form the respondent and
wanted more of it but the respondent refused to sell it to the
Petitioners.
➔ The Petitioners then tried to put pressure on the respondent through
various sources, but when the Respondents didn’t succumb to it,
they started harassing the Respondents by filing litigations, to get
permission to collect slurry from the Respondents.
➔ It appears that this PIL has been filed not for public interest but to
secure the private interest of the Petitioner. A petition under Article 32
for prevention of pollution is maintainable at the instance if affected
persons or even by a group of social workers.
However, if a PIL is not in the interest of the public at large it would
be abuse of the process of the court.
Decision: This petition has been filed not in any public interest but for the
petitioner’s personal interest and for these reasons we dismiss the same
and direct that the petitioner shall pay Rs. 5,000/- as costs.

Case: Rural Litigation and Entitlement Kendra v. State of U.P [(1985) 2

SCC 431]
Bench: P.N. Bhagwati, Amarendra Nath Sen & Ranganath Misra, JJJ.
Facts: This 1st case of its kind in the country involves issues relating to
environment & ecological balance. Here the conflict is between
Development and conservation.
Observations of SC:
The SC had by its order constituted a Committee known as D.N Bhargav
Committee for inspecting ​lime stone quarries (LSQ) mentioned in the Writ
Petition and also the list submitted by the State of UP.
Bhargav Committee divided LSQs in 3 categories:
Category A Impact of Mining operations relatively less pronounced.
Category B Impact of Mining operations is relatively more pronounced.
Category C Directed to be closed down on account of deficiencies
regarding safety and hazards of more serious nature.
The Government of India has also appointed a Working Group Committee
(WG Committee) on Mining of LSQs in Dehradun--Mussoorie area. The
WG Committee was headed by the same D.N. Bhargav who was also a
member of Bhargav Committee.
WG Committee divided LSQs into 2 categories:
Category 1 Suitable for continuance of mining operations
Category 2 Unsuitable for further mining

Decision:​On a comparison between the both the committee reports, that

Category B and C of the Bhargav Committee falls in the Category 2 of the
WG Committee and hence are ordered to be discontinued and shut.
Category A can be further divided into :
I. Falling inside the city: Shall be discontinued and shut
II. Falling outside the city: Are allowed to continue.
The business already invested will be given priority in LSQ Leases
whenever a new area is opened for mining as a response to
Bandopadhyay Committee Report on hardships to the companies and
workmen.
Afforestation and Soil Conservation programme to begin by Eco Task
Force of Environment Department of Government of India and along with
workmen thrown out of employment fur to shutting down of Quarries shall
also be absorbed in this programme.

Case: M.C. Mehta v. Union of India [AIR (1997) SC 734] (Taj Trapezium
Case)
Judgement delivered by: KULDIP SINGH, J.
Facts: Refinery at Mathura is one of major sources of damage to Taj
Mahal. Refinery emitted Sulphur Di-oxide when combined with atmospheric
Oxygen and moisture leads to Sulphuric Acid commonly known as “Acid
Rain”. This Acid rain has a corroding effect on the White Marble.
Observations of SC:
➢ “Report on Environmental Impact of Mathura Refinery”
(Varadharajan Committee) published by the Government of India in
1978 which shows that nearby industries shall have environmental
impact on the Taj Mahal and Pollution level in Agra needs to be
regulated.

&
➢ The ​Central Board for the Prevention and Control of Water
Pollution, New Delhi​, published a report “Inventory and Assessment
of Pollution Emissions in and Around Agra-Mathura Region
(Abridged).” In this report various sources of pollution in
Agra-Mathura region were identified and remedial measures were
suggested.
➢ In a Report submitted by NEERI regarding Sulphur Di-oxide emission
control measures at Mathura Refinery, it recommends use of Natural
gas and setting up of greenbelt around the refinery.
➢ The State of UP was requested to relocate industries outside the Taj
Trapezium zone.
What is Taj Trapezium Zone(TTZ)? the atmospheric area around the
Taj mahal where there is a possibility of pollution to react with and
damage the surface of the Taj Mahal.
➢ The old Concept that development and ecology cannot go together is
no longer acceptable. As now through Sustainable development it
can be achieved.
➢ This Court in ​Vellore Citizens Welfare Forum v. Union of India
[(1996) 7 JT 375] has defined “the precautionary principle” and the
“Polluter Pays principles”.
In Precautionary Principle, the environmental measures must
anticipate, prevent and attack the causes of environmental
degradation.
 Applying it the onus of proof is on industry to show that its operation
with the aid of coke/coal is environmentally benign, It is rather proved
beyond any reasonable doubt that the emissions generated by the
use of coke/coal by the industries in TTZ are the main polluters of the
ambient air.
Decision: Those Industries that cannot be able to substitute Natural Gas as
an industrial fuel shall stop functioning. The use of coke/coal in TTZ is
prohibited and such industries may relocate themselves with aid and
assistance from the UP government.

Case: M.C. Mehta v. Kamal Nath [(1997) 1 SCC 388]

Judgement delivered by: Kuldip Singh, J.
Facts: To save a Motel a river was being diverted due to which huge
Environmental Degradation could happen.
[Note: In this case a whole set of International authorities will be referred on
Public Trust Doctrine, other doctrines alongwith Indian authorities as well.]
Observations of SC:
➔ The area of the river diverted to build a Motel is ecologically fragile
and full of scenic beauty. Such an area should not have been
permitted to be converted into a private ownership for commercial
gains.
LEGAL VIEWPOINT
➔ Public has a right to expect certain land and Natural areas to retain
their natural characteristics in finding its way into the law of the land.
The need to protect environment and ecology has been summed up
by ​David B. Hunter (University of Michigan) in an article titled ​“An
Ecological perspective on property: A call for judicial protection of the
public’s interest in environmentally critical resources​” published in 12
Harv. Envtl. L. Rev. 311 (1988)​ is in the following words:
◆ There is a limit to the capacity of the environment to service…
growth , both in providing raw materials and in assimilating
by-product wastes due to consumption.
◆ There is a limit to malleability of the environment, for example:
Wetlands and forests cannot be destroyed without enormous
long term effects on environmental stability.
◆ Unlike our laws, laws of Nature cannot be changed by
legislative fiat; they are imposed on us by the Natural world.
➔ Public Trust Doctrine: ​Also known as Roman Empire Doctrine.
 Rivers, seashores, forests & air - 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 nullious)
- owned by everyone ​(res communious)
Whereas in the English law, the sovereign could however own these
resources but the ownership was limited in nature.
➔ Modern Public Trust Doctrine (PTD): Professor ​Joseph L. Sax​,
Michigan University in an Article titled “​Public Trust Doctrine in
Natural Resource Law : Effective Judicial Intervention,​” ​68 Mich. L.
Rev. 473 ​mentions:
The doctrine enjoins upon the Government to protect the resources
for the enjoyment of the general public rather than to permit their use
for private ownership or commercial purposes.
The PTD imposes three restrictions on government authority:
R1: the 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;
R2: the property may not be sold, even for a fair cash equivalent;
R3: the property must be maintained for particular types of uses.
AMERICAN LAW ON PTD
➔ The United States Supreme Court in Illinois Central Railroad Co. v.
People of the State of Illinois [146 US 387 (1892)]
Facts: In the year 1869 the Illinois Legislature made a substantial
grant of submerged lands - a mile strip along the shores of Lake
Michigan extending one mile out from the shoreline - to the Illinois
Central Railroad. In 1873, the Legislature changed its mind and
repealed the 1869 grant.
The State of Illinois sued to quit title.
The State said and the Court agreed​: The title of the State in the land
in dispute was a title different in character from that which the State
held in lands intended for sale. IT WAS A TITLE OF TRUST and as a
result of the trust, the State holds duty to preserve it free for public
usage and protect it from obstruction or interference of private
parties.
Prof Sax comment on ​Illinois case: ​When a State holds a resource
which is available for the free use of the general public, a court will
look with considerable scepticism 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.
➔ In ​Gould v. Greylock Reservation Commission [350 Mass 410
(1966)]​, the Supreme Judicial Court of Massachusetts A tramway for
commercial usage was built on Mount Greylock. The court held that
both the lease and the management agreement was invalid on the
ground that they were in excess of statutory grant of authority as such
is public land.
Prof Sax comment on ​Gould’s case: Gould, like Illinois Central, was
concerned with the most overt sort of imposition on the public interest
: commercial interests had obtained advantages which infringed
directly on public uses and promoted private profits. But the
Massachusetts court has also confronted a more pervasive, if more
subtle, problem – that concerning projects which clearly have some
public justification. Such cases arise when, for example, a highway
department seeks to take a piece of parkland or to fill a wetland.
➔ In ​Sacco v. Development of Public Works [532 Mass 670]​, the
Massachusetts Court restrained PWD from filling a great pond as part
of its State Highway relocation Plan as such pond is being used and
enjoyed by the people for recreational purposes.
➔ In ​Robbins v. Deptt. of Public Works [244 NE 2d 577]​, the
Supreme Judicial Court of Massachusetts restrained the Public
Works Department from acquiring Fowl Meadows, “wetlands of
considerable natural beauty... often used for nature study and
recreation” for highway use.
SCOPE OF PTD BY PROF. SAX
➔ Professor Sax stated the scope of the public trust doctrine in the
following words:
The judicial techniques developed in public trust cases need not be
limited either to these few conventional interests or to questions of
disposition of public properties.
Public trust problems are found whenever governmental regulation
comes into question, and they occur in a wide range of situations in
which diffused public interests need protection against tightly
organized groups with clear and immediate goals.
➔ The Supreme Court of California in ​National Audubon Society v.
Superior Court of Alpine Country [33 Cal 3d 419] commonly
known as ​MONO LAKE case​, the Los Angeles Water Division
occupied a stream thereby affecting the migratory route of Gulls
which is of ecological values.
 The court derived authority from ​Marks v. Whitney [6 Cal 3d
251]​,where PTD defined traditionally in terms of Navigation,
commerce and Fisheries.
The Court finally came to the conclusion that the plaintiffs could rely
on the public trust doctrine in seeking reconsideration of the
allocation of the waters of the Mono basin.
CASE ON HAND
➔ It can be observed that English Common law extended only to
Navigation, commerce and fishing while the American expanded the
concept in the ​Mono Lake case to Protect all ecological important
lands eg: Fresh waters, wetlands and riparian forests and in Case of
Phillips Petroleum Co. v. Mississippi [108 SCt 791 (1988)], PTD
was extended to lands underlying non-navigable tidal areas and with
a broader definition PTD expanded to include all ecosystems
operating in our Natural resources.
➔ Our legal system based on English Common Law which includes
PTD as part of its Jurisprudence:
◆ The State is the trustee of all Natural resources which are by
Nature meant for public use and enjoyment.
◆ Public at large is the beneficiary of the seashore, running
waters, air, forests, and ecologically fragile land.
◆ The State as a trustee is under a legal duty to protect the
Natural resources. These resources meant for public use
cannot be converted into private ownership.
➔ In the present case a large area of the bank of River Beas which is
part of protected forest has been given on a lease purely for
commercial purposes to the Motels.
The Himachal Pradesh Government committed patent breach of
public trust by leasing the ecologically fragile land to the Motel
management. Both the lease transactions are in patent breach of the
trust held by the State Government.
➔ This Court in ​Vellore Citizens’ Welfare Forum v. Union of India
[(1996) 5 SCC 647] explained the ​“Precautionary Principle” and
“Polluter Pays Principle”​. The Polluter Pays Principle has been
held to be a sound principle by this Court in ​Indian Council for
EnviroLegal Action v. Union of India [(1996) 3 SCC 212]​.
➔ It is thus settled by this Court that one who pollutes the environment
must pay to reverse the damage caused by his acts.
Decision: The Motel was found to be the polluter and hence need to pay
fine. The Motel shall show cause on 18.12.1996 why pollution fine and
damages be not imposed as directed by us.

Case: M.C. Mehta v. Kamal Nath, [AIR (2000)SC 1997]

Judgement delivered by: S. Saghir Ahmad, J.
Facts: ​The SC in 1997 case held that The Motel shall show cause on
18.12.1996 why pollution fine and damages be not imposed as directed by
us. This proceeding is in furtherance to that.
The Motel has filed its replies that since the proceedings were instituted
u/Article 32 and as per Article 142, the court cannot impose fine without a
statute/ legislation expressing it to be as fine in such cases.
The Motel relied on the case of ​Supreme Court Bar Association v.
Union of India [AIR 1998 SC 1895] by which the decision of this Court in
V.C. Mishra, Re [(1995) 2 SCC 584]​ was partly overruled, it was held:
● The plenary powers of this Court under Article 142 of the Constitution
are inherent in the Court and are “COMPLEMENTARY” to those
powers which are specifically conferred on the Court by various
statutes.
● Article 142 even with the width of its amplitude, cannot be used to
build a new edifice where none existed earlier, by ignoring express
statutory provisions dealing with a subject and thereby achieve
something indirectly which cannot be achieved directly.
Henceforth the fine cannot be lawfully levied by the court.
Observations of SC:
➢ The origin and development of Polluter Pay Principle has been
traced:
1970 Recognition of the vice of pollution and impact on future
resources was realised.
1971 The United Nations Economic Commission for Europe,
during a panel discussion concluded that the total
environmental expenditure required for improvement of
the environment was overestimated but could be reduced
by increased environmental awareness and control
1972 The Organisation for Economic Cooperation and
Development (OECD) adopted the “POLLUTER PAYS
 PRINCIPLE” as a recommendable method for pollution
cost allocation.
1972 “POLLUTER PAYS PRINCIPLE” was also discussed
during the 1972 Paris Summit
1974 European Community recommended the application of
the ​principle​ by its member States so that the costs
associated with environmental protection against pollution
may be allocated according to uniform principles
throughout the Community
1987 The principle was acknowledged as a binding principle of
law as it was incorporated in European Community Law
through the enactment of the Single European Act, 1987.
1989 The Organisation for Economic Co-operation and
Development reaffirmed its use and extended its
application to include costs of accidental pollution.
1992 Maastricht Treaty provides that Community Environment
Policy “shall be based on the principle that the polluter
should pay.
➢ The Indian courts has also applied “POLLUTER PAYS PRINCIPLE”
in various decisions:
○ In I​ndian Council for Enviro-Legal Action v. Union of India,
[AIR 1996 SC 1446]​, held that once the activity carried on was
hazardous or inherently dangerous, the person carrying on that
activity was liable to make good the loss caused to any other
person by that activity.
○ Vellore Citizens Welfare Forum v. Union of India [AIR 1996
SC 2715] also follows this principle as burden is on those who
want to change the natural settings.
➢ Pollution is a civil wrong. By its very nature, it is a tort committed
against the community as a whole. A person, therefore, who is guilty
of causing pollution has to pay damages (compensation) for
restoration of the environment and ecology.
He has also to pay damages to those who have suffered loss on
account of the act of the offender.
➢ The powers of this Court under Article 32 are not restricted and it can
 award damages in a PIL or a Writ Petition as has been held in a
series of decisions.
Decision: ​The notice issued to M/s. Span Motel why pollution fine be not
imposed upon them is, therefore, withdrawn. We direct a fresh notice to be
issued to M/s. Span Motel to show cause why in addition to damages,
exemplary damage be not awarded for having committed the acts set out
and detailed in the main judgment.

Case: M.C. Mehta v. Kamal Nath [2002 (2) SCALE 654]

Judgement delivered by: Doraiswamy Raju, J.
This case just laid down the fact of earlier 2 cases and held that the
Motel company shall pay Rs. 10 lakhs which will be used for
ecological restoration.

Case: Sachidanand Pandey v. State of West Bengal [AIR (1987) SC

1109]
Judgement delivered by: Chinnappa Reddy, J.
Facts: ​There is in Calcutta a zoological garden located in Alipore, on either
side of Belvedere Road, 49 acres on one side and 8 acres on the other.
The main zoo is in the 49 acres block of land​. ​There are some old buildings
and vacant land in the 8 acre plot of land​. ​This 8 acre plot of land is known
as the Begumbari land.
Out of these 8 acres, four acres has been carved out and given to the Taj
Group of Hotels for the construction of a Five Star Hotel. ​It is this giving
away of land, that was challenged before the High Court and is now
challenged in this Court​.
The transfer was challenged on 2 grounds:
a. No application of mind in making this transfer.
b. Cause of Migratory Birds not considered.
Observations of SC:
➔ The government has given conscious thought about transfer of 4
acres of land as such land was treated as a dumping ground and
fodder growing. This part only consists of old buildings which have
now become dumping ground for the zoo.
➔ The Tata Group has done the rehabilitation of these hospitals etc on
another ground of Rs. 50 lakhs for which they did not even apply for
reimbursement.
➔ Economic aspect of this property chosen was of suitability as the
Hotel was to be a Garden hotel hence some ecology might retain.
➔ The Government was profited above the price of market value.
➔ The concern of Migratory birds as there are several much taller
buildings nearby and the highest point of the building shall go only to
75 feets.
Decision:​ The transfer is a valid transfer.
.Chapter 3 Prevention and Control of Water Pollution
Case: M.C. Mehta v. Union of India, [AIR (1988) SC 1037 ]
Judgement Delivered by: ​E.S.​Venkataramiah, J.
Facts: This is a PIL seeking to restrain Respondents from letting out the
trade effluents into the river Ganga until they have installed necessary
treatment plants to arrest the pollution.
Sewage of the towns and cities on the banks of the river and the
trade effluents of the factories and other industries are continuously being
discharged into the river. It is the complaint of the petitioner that neither the
Government nor the people are giving adequate attention to stop the
pollution of the river Ganga.
Observations of SC:
➔ Article 48A lays down that the State shall endeavour to protect and
improve the environment and to safeguard the forests and wildlife of
the country.
Article 51A imposes as one of the fundamental duties on every
citizen the duty to protect and improve the natural environment
including forests, lakes, rivers and wildlife and to have compassion
for living creatures.
➔ The ​Water (Prevention and Control of Pollution) Act, 1974 (‘Water
Act’) to provide for the following purposes:
◆ the prevention and control of water pollution;
◆ Maintaining or restoring of wholesomeness of water, for the
establishment,
with a view to carrying out the purposes aforesaid, the Boards for the
prevention and control of water pollution has been assigned the
powers.
Sec- 24 of the Water Act, prohibits the use of any stream or well for
disposal of polluting matter etc. And it also provides that no person
 shall knowingly cause or permit matters entering into stream which
can lead to aggravation of pollution.
S. 2(j) of the Act defines stream as including river, water course
whether flowing or for the time being dry, inland water whether
natural or artificial, subterranean waters, sea or tidal waters.
Sec-16 and Sec- 17 of Water Act states function of Central and State
Pollution Boards respectively. One such function of the State Board is
to inspect sewage or trade effluents and set up treatment plants. Also
the State Board is entrusted to lay down standards of treatment
plants and also the tolerance limit of pollution permissible in streams.
➔ The Environment (Protection) Act, 1986 (EP Act)
Sec-3 of EP act, confers powers on the Central Government to all
such measures to improve the quality of the environment and abating
environmental pollution.
Sec-2(a) of EP act: ​‘Environment​’ includes water, air and land and
the inter-relationship which exists among and between water, air and
land and human beings, other living creatures, plants,
micro-organisms and property.
Sec- 3(2)(iv) of EP act: Under this the Central government may lay
down standards for environmental pollutants from different sources.
Sec-5 ​of EP act, authorises Central Government to issue directions
and also to seek compliance of its directions issued.
Sec-9 of EP act, imposes a duty on every person to take steps to
prevent or mitigate the environmental pollution.
Sec-15 of EP act mentions that penalties may be imposed for
contravention of any provisions of the EP act.
➔ Order: The main issue was the tanneries in the State of UP, Kanpur
and henceforth the tanneries assured the court that they will establish
primary treatment plants within six months and in the event of their
not completing the construction of the primary treatment plants as
approved by the State Board and bringing them into operation within
the period of six months the said tanneries will stop carrying on their
business.
Decision: Directions were issued to the Central Government, the Uttar
Pradesh Board, established under the provisions of the Water (Prevention
and Control of Pollution) Act, 1974 and the District Magistrate, Kanpur to
enforce the orders.

Case: M.C. Mehta v. Union of India, [AIR (1988) SC 1115]

Judgement Delivered by: ​E.S.​Venkataramiah, J.
Facts: The Kanpur Tanneries case just mentioned above in furtherance of
that case, the court in this case is taking notice upon cases in respect of
the municipal bodies and the industries which were responsible for the
pollution of the water in the river Ganga.
[​Note: T​ anneries as industries was dealt in just above mentioned case,
hence this case will be in respect of municipal bodies]
Observations of SC:
➢ The introduction of a modern sewage system has transferred the
sewage disposal from the streets and the surroundings of townships
to neighbouring streams and rivers. This marked the problems of
water pollution.
➢ It is Ironic to humans, but humans dispose of his waste into streams
from which he derives most of his drinking water.
➢ The most disturbing feature is that those who pollute are seldom the
people who suffer from it. Cities and industries discharge their
untreated or only partially treated sewage and industrial waste waters
into neighbouring streams and thereby remove waste matter from
their own neighbourhood. But in doing so, they create intense
pollution in streams and rivers and expose the downstream riparian
population to dangerously unhygienic conditions.
➢ The benefits of controlling such pollution shall not only provide us
with a pollution free, clean and healthy surroundings but will also
restore fish and other aquatic life.
➢ Can the municipal authorities be restrained for discharging untreated
sewage water into the river​? This question was answered in a
 common law case, in the matter of ​Pride of Derby and Derbyshire
Angling Association v. British Celanese Ltd.[(1953) Ch 149]
where the riparian owner (plaintiff) has brought an injunction against
restraining Municipal Corporation from discharging insufficiently
treated sewage into a river which polluted plaintiff’s fishery. The court
noticed that the Municipal Corporation was under a duty to provide a
sewage system.
➢ The Kanpur Nagar Mahapalika is to make sure that waste from the
diaries should not ultimately reach Ganga, either the dairies are to be
shifted outside the city where the waste can be accumulated or motor
vehicles be arranged at cost of the owners to send that waste outside
the city.
➢ It is also observed that whenever the Board constituted under Water
Act, initiates any proceedings to prosecute industrialists or other
persons who pollute the water in the river Ganga, the accused
immediately under ​Sec-482 of CrPC initiates stay form the HC
thereby frustrating the attempt of the Board to enforce provisions of
the Water Act.
The problem of pollution of the water in the river Ganga has become
very acute. ​The High Courts should not ordinarily grant orders of
stay of criminal proceedings in such cases except in exceptional
cases and even if granted they need to dispose within 2 months.
➢ The practice of throwing corpses and semi-burnt corpses into the
river Ganga. This practice should be immediately brought to an end.
Decision: The above stated remedies apply ​mutatis mutandis to all other
Mahapalikas and Municipalities which have jurisdiction over the areas
through which the river Ganga flows.

Case: M/s Delhi Bottling Co. Pvt. Ltd. v. Central Board for the
Prevention and Control of Water Pollution [AIR (1986) Del. 152]
Judgement delivered by: H.C. Goel, J.
Facts: The petitioner is a soft drink company, discharging trade effluents
which ultimately fall in the stream i.e. river Yamuna. The Company had
obtained consent order under the provisions of Sec- ​25 and ​26 of the Water
(Prevention and Control of Pollution) Act, 1974 (for short ‘Water act’).
A complaint u/s-​33(1) of Water Act was filed by the Respondent on
grounds that the petitioner company has neither set up a treatment plan
and nor the sample collected of the trade effluents were of standards
prescribed.
Metropolitan Magistrate Delhi, accepted the application and
restrained the petitioners from causing pollution of the stream by
discharging trade effluents till the required treatment plant is set up and the
trade effluent is of prescribed standards.
The Petitioner felt aggrieved by the MM, Delhi order and hence filed
the ​current petition u/s- 482 of CrPC​.

ARGUMENTS ADVANCED
PETITIONER
- For passing an order u/s-33 of Water Act there is no need that the
samples of the effluents must be lifted from the factory premises
and got analysed as per the provisions of Sec. 21 of the Act.
- It was not necessary for the officials of the Board to divide the
sample lifted into two parts and to get the same analysed from the
laboratory established by the Delhi Administration as per the
provisions of Sec. 21(4) of the Act.
Observations of Delhi High Court:
➢ The scheme of act shows that Sec-21 of Water Act is a provision of
general application governing lifting of samples for all cases including
for the purpose of obtaining an order u/s-33 of the Water act.
Sec-21(2) states that evidence shall not be maintainable as recorded
u/s-21(1) if the procedure as per Sec-21 (3) to (5) is not complied
with.
 ➢ Sec-21(5) of the Water act requires an appearance to put on behalf of
the company before the officials of the Board at the time of taking the
sample by them.
➢ This court found the order of the Magistrate to be erroneous and not
based on true facts. The requirements of Sec-21(5), the presence of
company representative Shri Kosla is doubtful as no signature has
been taken at the foot of the document.
➢ The officials of the Board were not justified in getting the sample
analysed from a laboratory only recognised by the Board instead of
getting the same analysed from the laboratory of the Delhi
Administration and without complying with the requirements of
Sec-21(5) of water act.
Decision:​ The Magistrate’s order was set aside.

Case: Municipal Council, Ratlam v. Vardichand [(1980) 4 SCC 162]

Judgement delivered by: V.R. Krishna Iyer, J.
Facts: The case is between Ratlam Municipality and the citizens of a ward
where it was alleged that the area lacks basic sanitation and public drains
at the public toilets. The discharge from the Alcohol Plant on the streets of
that ward. The problem of mosquito breeding in the area.
Observations of SC:
➔ Section 123 of the M.P. Municipalities Act, 1961, lays down the duties
of the council which includes cleansing public streets, places and
sewers, and all places, not being private property, which are open to
the enjoyment of the public and also disposing of night-soil and
rubbish and preparation of compost manure from night-soil and
rubbish.
➔ The Sub-Divisional Magistrate, Ratlam, was moved to take action
under ​Section 133 CrPC to abate the nuisance by ordering the
municipality to construct drain pipes with flow of water to wash the
filth and stop the stench and for prosecution under ​Sec 188 IPC​.
 ➔ Validity of the above order of SDM, Ratlam:
Sec-133 CrPC is to be used in case of public nuisance and Sec-188
of IPC operated where a competent order made by a public servant is
defied causing danger to human life, health and safety and hence
provides the power to punish.
It is found that the obligation to abate the public nuisance caused by
absence of primary sanitary facilities and Sec 123 of municipality act
becomes mandatory.
➔ It is not a defence to state lack of funds to lack operability of Sec-123
of municipality act.
➔ This SC found HC’s order in rejecting municipal corporation’s plea as
they had defied orders for 7 long years.
Decision: ​Directed Ratlam Municipality to stop discharge from Alcohol
Plant, provide scavenging and sanitation services in the public toilets and
also to take measures to stop breeding of the mosquitoes. It is also advised
to the State Government to provide financial assistance to Ratlam
Municipality to undertake such tasks smoothly.

Case: State of M.P. v. Kedia Leather & Liquor Ltd. [AIR (2003) SC
3236]
Judgement delivered by: Arijit Pasayat, J.
Facts: The appeal has arisen from the HC view that enactment of Water
(Prevention and Control of Pollution) Act, 1974 (the ‘Water Act’) and the Air
(Prevention and Control of Pollution) Act, 1981 (the ‘Air Act’) implied repeal
of Sec-133 CrPC.
The view taken by the HC is challenged under this case.
Observations of SC:
➢ Sec-133 of CrPC is essentially to prevent public nuisances and to
maintain public order. “​Public Nuisance​” has been defined in the case
of ​Vasant Manga Nikumba v. Baburao Bhikanna Naidu
(deceased) by Lrs. [1995 Supp.(4) SCC 54] as an inconvenience
 which materially interferes with the ordinary physical comfort of
human existence.
➢ The object and purpose behind ​Section 133 of the Code is
essentially to prevent public nuisance and involves a sense of
urgency in the sense that if the Magistrate fails to take recourse
immediately irreparable damage would be done to the public.
Sec 133 of CrPC Sec 144 of CrPC
- Specific provision. - General provision.
- Order in it is conditional - Order made is absolite.
- Proceeding more in nature of civil proceedings than criminal
proceedings
➢ The Water Act and the Air Act are special statutes, these two relates
to prevention and control of pollution where both the acts has given
respective boards the power to restrain the polluter
➢ Rule of Presumption against repeal by implication: This rule believes
in the theory that Legislature while enacting a law has a complete
knowledge of the existing laws on the same subject matter, and
therefore, when it does not provide a repealing provision, the
intention is clearly​ not to repeal​ the existing legislation.
➢ In the case of ​Garnett v. Bradley [1878) 3 AC 944 (HL)] a repeal is
inferred only when both the acts are so inconsistent by implication
that they cannot stand together.
But, if the two can be read together and some application can be
made of the words in the earlier Act, a repeal will not be inferred.
➢ The area of operation in the CrPC and the pollution laws in question
are different with wholly different aims and objects; and though they
alleviate nuisance, that is not of identical nature.
The provisions of Sec-133 CrPC are preventive in nature but the
provisions of the Water Act and Air Act are curative, preventive and
penal.
Decision: The HC has wrongly decided that the legislature while enacting
water act and air act intended to repeal Sec-133 of CrPC as they both
operate on different planar.

Case: Forum Prevention of Envn. & Sound Pollution v. Union of India

[AIR (2005) SC 3136]
Judgement delivered by: R.C. Lahoti, CJI:
Facts: The petitioner seeks to invoke the writ jurisdiction of this Court so
that there may not be victims of noise pollution in future like a 13 year old
girl who was raped and neighbours cannot hear her cry due to blaring noise
of music over loudspeaker in the neighbourhood.
The principal prayer is that the existing laws for restricting the use of
loudspeakers and other high volume noise producing audio-video systems,
be directed to be rigorously enforced.
Observations of the SC:
➔ Article 21 guarantees life and personal liberty to all persons. Anyone
who wishes to live in peace, comfort and quiet within his house has a
right to prevent the noise as pollutants reach him. No one can claim a
right to create noise even in his own premises which would travel
beyond his precincts and cause nuisance to neighbours or others.
The Delhi and Kerala HCs has also held that right to live in an
atmosphere free from noise pollution has been upheld as the one
guaranteed by Article 21 of the Constitution in the following cases:
◆ Free Legal Aid Cell Shri Sugan Chand Aggarwal alias
Bhagatji v. Govt. of NCT of Delhi [AIR (2001) Del. 455 (DB)]
◆ P.A. Jacob v. Superintendent of Police, Kottayam [AIR
(1993) Ker 1]
➔ It is not the situation that Legislature and Executives in India are
completely unmindful of Noise pollution as laws have been enacted
and rules have already been framed. ​The main issue is that of
implementing them.
 STATUTORY LAWS IN INDIA
➔ The Noise Pollution (Regulation and Control) Rules, 2000​: In
order to curb the problem of noise pollution and to regulate and
control noise producing and generating sources with the objective of
maintaining the ambient air quality standard in respect of noise;

➔ Indian Penal Code: Noise Pollution can be dealt under Sec- 268,
290 and 291.
Sec- 268: ​A person is guilty of a public nuisance who does any act or
is guilty of an illegal omission ​which ​causes any common injury​,
 danger or annoyance ​to the public or the people in general who dwell
or occupy property in the vicinity, or which must necessarily cause
injury, obstruction, danger or annoyance to persons who may have
occasion to use any public right. A common nuisance is not excused
on the ground that it causes some convenience or advantage.
Sec 290 and 291:​ deals with the punishment for public nuisance.
➔ Criminal Procedure Code: ​The Magistrate has been given power
u/s-133 CrPC to issue directions and power to make conditional
order.
➔ The Factories Act, 1948: ​It act does not contain any specific
provision for noise control. However under Third Schedule ​Sec-89
and 90 ​noise induced hearing loss is mentioned as a notifiable
disease.
Sec-89 ​of Factories Act requires any medical practitioner who detects
such notifiable disease needs to notify the Chief Inspector Factories,
along with all the relevant material.
➔ Motor Vehicles Act and Rules Thereunder: Rules 119 (HORNS)
and 120 (SILENCERS) of the Central Motor Vehicles Rules, 1989,
deal with reduction of noise.
➔ Law of torts: ​Quietness and freedom from noise are indispensable to
the full and free enjoyment of a dwelling-house.
No proprietor has an absolute right to create noises upon his own
land, because any right which the law gives is qualified by the
condition that it must not be exercised to the nuisance of his
neighbours or of the public.
Noise will create an actionable nuisance only if it materially interferes
with the ordinary comfort of life.
➔ The Air (Prevention and Control of Pollution) Act, 1981: Noise
was included in the definition of air pollutant in Air Act.
➔ The Environment (Protection) Act, 1986: ​The act also contains no
specific provision with regard to noise pollution but the act grants
powers to the Central Government to take measures to deal with
various types of pollution including noise pollution.
➔ Fireworks: The Explosives Act, 1884 regulates the manufacture,
possession, use, sale, manufacture and transactions in firecrackers.
However, The Noise that is produced by these fireworks is regulated
by the Environmental Protection Act, 1986 and The Noise Pollution
(Regulation and Control) Rules, 2000.
JUDICIAL OPINION IN INDIA
➔ In ​Kirori Mal Bishambar Dayal v. The State [AIR (1958) Punj 11],
the Punjab and Haryana HC had found the accused rightly convicted
under ​Sec- 290 IPC for causing noise and emitting smoke and
vibrations of heavy machinery in the residential area.
➔ In the case of ​Bhuban Ram v. Bibhuti Bhushan Biswas [AIR 1919
Calcutta 539]​, it was held that working of a paddy husking machine
at night causes nuisance by noise and the occupier was held liable to
be punished under Section 290 IPC.
➔ In ​Ivour Heyden v. State of Andhra Pradesh [(1984) Cri LJ (NOC)
16]​, the High Court of Andhra Pradesh excused the act of playing
radio loudly on the ground that it was a trivial act (of little importance).
➔ In ​Rabin Mukherjee v. State of West Bengal [AIR (1985) Cal. 222]
the use of air horns was prohibited by the court to prevent noise
pollution by the Calcutta HC. The court noted as a result of excessive
noise pollution, people suffer from loss of appetite, depression,
mental restlessness and insomnia. People also suffer from excessive
blood pressure and heart trouble.
➔ In the case of ​People United for better Living in Calcutta v. State
of West Bengal [AIR (1993) Cal. 215] the Calcutta High Court
observed that development shall have to be in closest possible
harmony with the environment.
➔ In ​Burrabazar Fireworks Dealers Association v. Commissioner of
police, Calcutta [AIR 1998 Cal. 121] ​it has been held Article 19(1)(g)
does not guarantees the fundamental right to carry on trade or
business which creates pollution or which takes away that
community’s safety, health and peace.
Under Art. 19(1)(a), read with Art. 21 of the Constitution of India, the
 citizens have a right of decent environment and they have a right to
live peacefully, right to sleep at night and to have a right to leisure
which are all necessary under Art. 21 of the Constitution.
➔ The Supreme Court in ​Church of God (Full Gospel) in India v.
K.K.R. Majestic Colony Welfare Assn. [(2000) 7 SCC 282] issued
direction to curb noise pollution even if such was a result of religious
activities.
As, no religion prescribes that prayers should be performed by
disturbing the peace of others nor does it preach that they should be
through voice amplifiers or beating of drums.
Indian Judicial opinion has been uniform in recognizing the right to live in
freedom from noise pollution as a fundamental right protected by Article 21
of the Constitution.
The SC in this case Observed that difficulty in implementing the ​Noise
Pollution Control Mechanism​ is two fold:
1. There is a lack of infrastructure essential for obtaining the
enforcement of these laws.
2. There is a lack of requisite awareness on the part of the citizens.
The SC also points out the problems that are being faced in controlling
noise pollution, which are:
1. The Statutes and the Rules framed thereunder are not
comprehensive enough so as to deal with all the problems and issues
related to noise pollution.
2. The authorities responsible for implementing the laws are not yet fully
identified.
What is needed is a combination of technically qualified and
administratively competent personnel with the requisite desire and
dedication for implementation of the laws.
3. There is a lack of proper gadgets and equipment and other
infrastructure such as labs for measuring the noise levels.
Decision: Directions were issued in case of Firecrackers, Loudspeakers ,
Vehicular Noise. With specific targets to spread the awareness regarding
Noise Pollution and its deleterious effects.
Case: Church of God (Full Gospel) in India v. KKR Majestic Welfare
Colony Welfare Association [AIR (2000) SC 2773]
Judgement delivered by: Shah, J.
Facts: A resident of Respondent Colony made a complaint before Tamil
Nadu Pollution Board that prayers at the Church were recited by using
loudspeakers, drums and other sound producing instruments which caused
noise pollution thereby disturbing and causing nuisance to the normal day
life.
The Respondent Association thereby filed Criminal O.P before
Madras HC thereby contending the Church has caused Noise pollution,
whereas the Church responded that such petition has been filed with
malice intention and the noise pollution is not due to loudspeakers of the
Church but because of Plying of the vehicles.
The Madras HC while relying on ​Appa Rao, M.S. v. Government of
Tamil Nadu & Another (1995-1 L.W. (Vol.115) 319) where the division
bench of Madras HC under Section 41 and 71(a) of the Madras City Police
Act, 1888 and Section 10 of the Madras Town Nuisance Act, 1989 has
issued directions to the Government for controlling the noise pollution and
for the use of amplifiers and loudspeakers.
The Madras HC decided against the Church and found there was
nothing of malice and malicious wish to cause any hindrance to the free
practice of religious faith of the Church and if the noise created by the
Church exceeds the permissible decibels then it has to be abated.
Aggrieved by this the Church files the current SLP before the SC.

ARGUMENTS ADVANCED
APPELLANT RESPONDENT
- The petition in the Madras HC - The appellant deliberately
was filed with an oblique gave religious colour to the
motive in order to prevent a petition filed.
 religious minority institution - If the appellant produces
from pursuing its religious noise as per the prescribed
activities. limit it will not in any way
- the Court cannot issue any prejudice their right of
direction to prevent the religious practice.
Church from practicing its - Rather, it will not help lower
religious beliefs. the noise pollution level in the
area.
I​ssue 1: ​Whether a particular community or sect of that community can
claim the right to add to noise pollution on the grounds of religion?
Issue 2: Whether beating of drums or reciting prayers by use of
microphones and loudspeakers so as to disturb the peace or tranquility of
neighbourhood should be permitted?
Observations of SC:
➢ The use of microphones was certainly not desired by the spiritual
leaders or religious teachers who laid down these tenets.
➢ One can practice, profess and propagate religion, as guaranteed
under Article 25(1) of the Constitution but that is not an absolute right.
Article 25(1) r/w Article 19(1)(a) it cannot be said that a citizen should
be coerced to hear any thing which he does not like or which he does
not require.
➢ No religion prescribes or preaches that prayers are required to be
performed through voice amplifiers or by beating of drums. In any
case, if there is such practice, it should not adversely affect the rights
of others including that of being not disturbed in their activities.
➢ Constitution Bench of this Court qua rights under Articles 25 and 26
of the Constitution in ​Acharya Maharajshri Narendra Prasadji
Anand Prasadji Maharaj and Others v. The State of Gujarat &
Others [(1975) 1 SCC 11] observed by the court that no right in an
organised society can be absolute. Emphasis was supplied to
maintain harmony, that is enjoyment of one’s rights must be
consistent with the enjoyment of rights also by others.
Decision: The HC rightly decided the implementation of State Police Acts
in controlling Noise Pollution in the State.
Chapter 4 Environmental Protection
Case: S. Jagannath v. Union of India [AIR (1997) SC 811]
Judgement delivered by: Kuldip Singh, J.
Facts: The Shrimp Farming poses a serious threat to environment and
ecology. This petition is filed as a PIL seeking the following:
❖ Enforcement of ​Coastal Zone Regulation Notification dated
19-2-1991​ issued by the Government of India,
❖ Stoppage of intensive and semi-intensive type of prawn farming in the
ecologically fragile coastal areas,
❖ Prohibition from using the wastelands/wetlands for prawn farming,
❖ The constitution of a National Coastal Management Authority to
safeguard the marine life and coastal areas.

ARGUMENTS ADVANCED
PETITIONER RESPONDENT
- As per reports of NEERI, the - The shrimp industry is directly
modern shrimp farming related to the waterfront and
techniques are highly cannot exist without foreshore
polluting and detrimental to facilities.
the coastal environment and - The Oxford English Dictionary
marine ecology. defines:
- Only traditional methods of ● Waterfront: the part of the
shrimp farming are town which fronts on a body
environment friendly. of water.
- Notification dated 19-2-1991 ● Foreshore: the part of the
issued by the Government of shore that lies between the
India under Section 3 of the High Tide and the Low Tide.
Environment (Protection) Act, - .
1986 (the Act) (​CRZ
Notification​) totally prohibits
setting up of shrimp farms
 under the Coastal Regulatory
Zone.
- The shrimp culture industry is
neither “directly related to
waterfront” nor “directly
needing foreshore facility” and
as such is a prohibited activity
under para ​2(i) of the CRZ
Notification.

Observations of SC:
➔ The shore which remains covered with water at the High Tide and
gets uncovered and becomes visible at the Low Tide is called
“foreshore”. What is required is only “brackish water” which is
available from various water bodies including seas. The Brackish
water can be drawn to any distance using pipes etc.
➔ It is observed that the shrimp culture industry is neither directly
related to waterfront nor directly needing foreshore facilities.
➔ In ​Alagarswami Report​, that huge cyclone protection dykes and
peripheral dykes are constructed by the shrimp farmers, and due to
this natural drain is blocked and flood water accumulates in the
hinterland villages.
 The ​2(viii) of the CRZ Notification quoted above, prohibits the
bunding or disturbing the natural course of sea water with similar
obstructions.
➔ The court draws an analogy the Salt manufacturing process like the
shrimp culture industry depends on sea water, they can also claim as
they are wholly dependent on seawater and hence they are directly
related to the waterfront and directly needing foreshore facilities.
➔ It is thus obvious that an industry dependent on sea water cannot by
itself be an industry “directly related to waterfront” or “directly needing
foreshore facilities”.
➔ The Shrimp culture industry is even prohibited in the CRZ-III zone.
Decision: It must be mandatory for any shrimp industry/pond to pass an
environmental test before installing in the ecology fragile coastal area. The
Central Government is directed to set up a “high power committee” u/s-
8(3) ​of the Environment (Protection) Act, 1972 to scrutinize each and
every case from the environmental point of view.
There must be an environmental impact assessment before
permission is granted to install commercial shrimp farms and “​the
Precautionary Principle​” and “​the Polluter Pays Principle​” needs to be
implemented.

Case: MC Mehta v Union of India [(1987) AIR 1086] (Oleum Gas Leak
case)
Judgement delivered by: Bhagwati, CJ.:
Facts: A writ petition was against one Shriram Foods and Fertiliser
Industries (Shriram) on the ground that they were hazardous to the
community. While a question for relocation of Shriram to less inhabited
area to reduce the risk and danger to the neighbouring people.
Before the court, was able to decide upon this relocation question there
was an escape of Oleum Gas
Applications were filed by Delhi Legal Aid & Advice Board and the Delhi
Bar Association under ​Article 32 and ​Article 21 to get compensation to
affected and thereby it was sought fit to transfer application to a
Constitution Bench (5 Judges). Henceforth the present case.
Issue1: Scope and ambit of Article 32 as application for compensation
needs to be maintained.
Observations Issue 1:
➢ In the ​Bandhua Mukti Morcha v. Union of India & Ors., [(1984) 2
 SCR 67] ​Bhagwati J., held
Article 32 does not merely confer power on this Court to issue a
direction, order or writ for enforcement of the fundamental rights but it
also lays ​a constitutional obligation on this Court to protect the
fundamental rights of the people and for that purpose this Court has
all incidental and ancillary powers including the power to forge new
remedies and fashion new strategies designed to' enforce the
fundamental rights.
➢ This Court under Article 32(1) is free to devise any procedure
appropriate for the particular purpose of the proceeding, namely,
enforcement of a fundamental right.
➢ Ordinarily, a petition under Article 32 should not be used as a
substitute for enforcement of the right to claim compensation for
infringement of a fundamen- tal right through the ordinary process of
civil court.
➢ It is in exceptional cases like this where the infringement of the
fundamental right is gross and patent, ex facie glaring and
infringement should be on a large scale affecting the fundamental
rights of a large number of persons, or it should appear unjust or
unduly harsh or oppressive on account of theft poverty or disability or
socially or economically, disadvantaged position to require the person
or persons affected by such infringement to initiate and pursue action
in the civil courts. Such a petition under Article 32 is maintainable.
Issue2: What is the measure of liability of an enterprise which is
engaged in an hazardous or inherently dangerous industry, if by
reason of an accident occurring in such industry, persons die or are
injured?
Observations Issue2:
➢ Applicability of Rylands v. Fletcher (1866): The rules lays down a
strict liability and no defence on any ground can be permitted.
It operates on a ​rationale that if a person collects on his land
something which is likely to do mischief and if it escapes he shall be
liable for the damage.
➢ The rule evolved in the 19th CE when all the developments of
science and technology had not taken place and hence this rule
cannot afford any guidance in evolving any standard of liability
consistent with the constitutional norms and needs of the present
economy and social structure.
➢ This rule applies only to non-natural usage of land and does not apply
 to natural usage of land; also not applicable to the Act of God and the
act of a stranger.
➢ There is a need to devise our own law applicable correctly to our
needs.
➢ Rule of Absolute Liability: An enterprise which is engaged in a
hazardous or inherently dangerous industry which poses a potential
threat to the health and safety of the persons working in the factory
and residing in the surrounding areas owes ​an absolute and
nondelegable duty to the community to ensure that no harm results to
anyone.
➢ The enterprise must be absolutely liable to compensate for such
harm and there should be no answer to the enterprise to say that it
had taken all reasonable care and that the harm occurred without any
negligence on its part.
➢ The law shall only permit those enterprises who indemnifies all those
who suffer and project cost shall include accident cost as well.
➢ Principle for the rule of Absolute Liability​: The enterprise alone has
the resource to discover and guard against hazards or dangers and
to provide warning against potential hazards.
➢ All the defences applicable to ​Rylands v. Fletcher shall not be
applicable on this rule.
Decision: Despite laying the rule it cannot be reached a conclusion that
Shriram came within the meaning of "State" in Article 12 so as to be liable
to the discipline of Article 21 and to be subjected to a proceeding under
Article 32 of the Constitution.

Case: Union Carbide Corporation v Union of India, [AIR (1992) SC 248]

Bench: ​Pathak, R.S. (CJ), Venkataramiah, E.S. (J), Misra Rangnath,
Venkatachaliah, M.N. (J), Ojha, N.D. (J)
Judgement delivered by: Ranganath Misra, CJ.
Facts: ​American industrial giant Union Carbide with Union of India and
incorporated ​Union Carbide India Limited (hereinafter UCIL) in India for the
manufacture of batteries, chemicals, pesticides and other industrial
products. The Union Carbide was the majority stakeholder (51%) in the
company. In 1970, a new pesticide plant was set up by UCIL in a densely
populated area of Bhopal (Madhya Pradesh).
On 02-03 December 1984 the incident of BHOPAL GAS LEAK
happened.The Parliament enacted Bhopal Gas Leak Disaster
(Processing of Claims) Act, 1985 (Bhopal Act) making Union of India
representative for all the claims and compensation of the victims by the
Doctrine of ​Parens patriae [what is this doctrine? ​A D ​ octrine by which a
government has standing to prosecute a lawsuit on behalf of a citizen,
especially on behalf of someone who is under a legal disability to prosecute
the suit.]
The validity of this Bhopal Act was challenged in the case of ​Union
Carbide Corporation v. Union of India [(1991) 4 S.C.C. 584] on the
ground that since Union of India was also owner of minority shareholders,
they are also responsible for the disaster.
The SC decided in favour of Union of India by applying the authority laid
down in the case of ​Charanlal Sahu v. Union of India, [AIR (1990) S.C.
1480] ​and held that the state is obligated to protect the interests of its
citizens across the globe. The court further held that our Constitution
makes it imperative for the state to secure to all its citizens the rights
guaranteed by the Constitution and where the citizens are not in a position
to assert and secure their rights.
However, shockingly the Union of India decided to pursue the case in
American Court for 2 reasons:
1. Indian legal system is not appropriate to entertain such big a
matter including the flaws of substantial backlogs in the cases.
2. BothIndian Lawyers and Indian law is not well versed with the
laws of Torts therefore, due to the gap in law it is probable that
justice might not be delivered.
The Appeals against the Union Carbide was clubbed into a single appeal
before the Judge Keenan’s Court and he at once dismissed the appeal on
the grounds of ​Forum non conveniens ​as the court was of the view that
Indian Courts can be a better forum as all the relevant evidences are within
the Indian Jurisdiction​.
[What is ​Forum non conveniens​? It is a discretionary power that allows
courts to dismiss a case where another court, or ​forum​, is much better
suited to hear the case. This dismissal does not prevent a plaintiff from
re-filing his or her case in the more appropriate f​ orum.​ ]
The Union of India thereby filed a case before the District Court of
Bhopal which asked Union Carbide to deposit Rs. 350 crores as
compensation. The appellant company then went to HC which reduced the
amount to Rs. 250 crores.
Aggrieved by the HC court bothe Union Carbide and Union of India filed an
appeal before the SC and hence this appeal.
Issue: Decide upon the validity of the settlement order made by the
HC of Madhya Pradesh.

ARGUMENTS ADVANCED
RESPONDENT
- The criminal cases could not have been compounded or quashed
and immunity against criminal action could not be granted;(​ was not
dealt in this judgement​)
- The quantum of compensation settled was grossly low.
Observations of SC:
➢ The compensation in such tort cases are adjudicated by way of
approximation and by applying the test of just and fair.
➢ The principle laid down in the case of ​MC Mehta v Union of India
[(1987) AIR 1086] ​should have been adopted the majority of the
bench decided to settle this matter for an amount.
➢ It was noted by this court the following legal processes and amount of
time to finalise that legal process:
○ Litigation in India will take roughly 20 years to reach finality.
Further the steps needed to be taken to have been executing
the same at the United States of America.
○ That litigation in the minimum would have taken some 8-10
years to be finalised. Thus, relief would have been available to
the victims at the earliest around 2010.
○ The U.S. Courts would have been of the view that strict liability
was foreign to the American jurisprudence and contrary to U.S.
public policy, the decree would not have been executed in the
United States and apart from the Indian assets of UCIL, there
would have been no scope for satisfaction of the decree.
➢ In the present case the matter was therefore chosen to settle on the
Indian assets of UCIL worth Rs. 100 crores, to be given as
compensation to the victim.
➢ The Court thereby decided to secure compensation to the victims
through much speedier procedure of settling this case.
[Note: Another Judgement written by M.N. Venkatachaliah, J. which
pertains to the question of a criminal case being compounded which does
not play any role in environmental law course.]
Decision:​ The settlement amount was 470 million US Dollars.
Chapter 5 National Green Tribunal(NGT)
Case: Techi Tagi Tara v. Rajendra Singh Bhandari & Ors, Supreme
Court, [Civil Appeal No. 1359/017, Judgement of 22 September 2017.]
Judgement Delivered by: Madan B. Lokur J.
Facts: The appeals are from the Judgement and order date 24th August
2016 passed by the NGT, Principal Bench, New Delhi. The tribunal was
perturbed and anguished that some officials appointed to the State
Pollution Control Board (SPCB) did not possess required qualifications and
the Tribunal directed the State Government to redirect appointments of the
said persons.
The appeal hereby is to set aside the award of the NGT on ground of want
of Jurisdiction.

ARGUMENTS ADVANCED
APPELLANTS
- The appointment or removal of SPCBs does not lie within the
jurisdiction of NGT.
- The State Government is a fit authority for laying down guidelines
for appointment of Chairpersons and members of SPCB.

Observations of SC:
➢ The State Governments in making appointments to SPCBs adopted a
casual response. It is this “chalta hai” attitude that led NGT to make a
direction to the State Government to reconsider the appointments
made. The NGT gave guidelines that ought to be followed in making
appointments to the SBCs.
➢ Upon perusal of ​Sec-15 r/w Sec-2(m) of the NGT Act, 2010, it is
clear:
○ There must be a question relating to the environment.
 ○ That Question must arise in a dispute.
○ There must be a claimant raising such dispute
○ Such dispute must be capable of settlement by the NGT
○ The relief that can be granted by NGT is of
■ Nature of compensation or
■ Restitution of property damaged or
■ Restitution of environment or
■ Any other ancillary or incidental relief thereto.
➢ The appointment of Chairman or any members of the SPCBs cannot
be treated as a substantial question relating to the environment. As
such the question is only pertaining to the appointment to a post.
➢ In ​Prabhakar v. Joint Director, Sericulture Department [​2015 (10)
SCALE 114​] the definition of dispute in grammatical sense is to
debate, argue, quarrel or an argument; whereas ​Black’s Law
Dictionary, 5th Edn​., p. 424 defines “dispute” as A conflict of
interest, claims or rights; the subject of the litigation.
➢ The dispute would be the assertion of a right or an interest or a claim
met by contrary claims on the other side. The dispute must be of
substance than of form.
The question of appointments can be a fit question before a
Constitutional Court under a writ of Quo Warranto but is not a fit
“dispute” before the NGT.
➢ It was not fit for NGT to entertain such a claim within the statutory
jurisdiction of it.
Decision: While setting aside the judgment and order of NGT , we direct
the Executive in all the States to frame appropriate guidelines for
recruitment rules within six months, considering the institutional
requirements of the SPCBs and the law laid down by statute.
Chapter 6 Protection and Conservation of Forests,
Biodiversity and Wildlife
Case: Orissa Mining Corporation v. Ministry of Environment and
Forest [(2013)6 SCC 476]
Judgement delivered by: K.S. Panicker Radhakrishnan, J.
Facts: Orissa Mining Corporation (OMC) has approached the Supreme
Court, seeking a ​writ of certiorari for quashing of the order passed by the
Ministry of Environment and Forests (MOEF) dated 24.08.10 rejecting the
STAGE II forest clearance for diversion of 660.7 hectares of forest land for
mining of bauxite ore in Lanjigarh Bauxite Mines in Kalahandi and 2
Rayagada Districts of Orissa and also for other consequential reliefs.
OMC urged that such a decision by MOEF is contrary to the two Orders
passed by the SC on Interlocutory Applications files in these cases:
a. Vedanta Aluminium​ Case [(2008) 2 SCC 222]
The SC opined that if ​Sterlite,​ ​State of Orissa and ​OMC jointly agree
to comply with the “Rehabilitation Package”, the Court might consider
granting clearance to the project.
b. M/s Sterlite​ Case [(2008) 9 SCC 711]
Since all the three have accepted “Rehabilitation Package” thereby
the SC granted clearance to the forest diversion proposal for
diversion of 660.749 ha of forest land to undertake bauxite (Ore of
Aluminium) mining on Niyamgiri Hills in Lanjigarh. The next step
would be for MoEF to grant its approval in accordance with law.
The MOEF g​ranted Stage1 clearance to the OMC on 31.12.2008 in
compliance of the SC order and same has been forwarded to the
Government of India, MOEF for final approval as per Sec 2 of the Forest
Conservation Act, 1980.
However, the Forest Advisory Committee (FAC) on 4.11.2009
recommended that the ​final clearance be considered only after ascertaining
the community rights of forest land and after the process for establishing
such rights under the Forest Rights Ac​t is completed.

[NOTE: There are 2 stages to divert a forest land into a non-forest

land. The image on the next page is a flowchart for procedure.]
Thereby FAC perused the ​Ram Ramanathan report which recommended
that a Special Committee be constituted to look into the issues relating to
the alleged violation of rights under the Forest Rights Act. As a result
Saxena Committee was formed and placed its report before the FAC and
on the basis of that FAC noticed prima-facie violation of the Forest Rights
Act and the Forest (Conservation) Act.
The recommendations of the FAC dated 23.8.2010 and Saxena Committee
report were considered by MOEF and the request for Stage-II Clearance
was rejected on ​24.8.2010​.
 ARGUMENTS ADVANCED
PETITIONER
- Order of MOEF dated 24.08.2010 is an attempt to reopen a matter
that has obtained finality.
- The petitioner claims that "Alumina Refinery Project" and "Bauxite
Mining Project" are two different and separate projects and the
MOEF for the violation of the former has denied Stage II clearance
for the latter.
Issue: To ascertain the rights of the Scheduled Tribes and the
"Traditional Forest Dwellers" under the Forest Rights Act.
Observations of SC:
➔ The petitioner contention that both projects are separate cannot be
accepted as there is enough evidence to show that both projects are
integrated. Even in ​the Vedanta and Sterlite case ​this court has
considered them as one single Unit.
Hence, wrongdoing of one can cast a reflection on another and hence
may be a relevant consideration of denial of Stage II clearance.
Defining Scheduled Tribes (STs) and Traditional Forest Dwellers (TFDs)​:
➔ The ​TFDs are defined ​u/s- 2(o) of Forest Rights Act as any
member or community who has at least three generations (prior to
the 13th day of December, 2005) primarily resided in and who
depend on the forest or forest land for bona fide livelihood needs.
➔ The ​Article 366(25) of the Constitution of India states that ​STs
means such tribes or tribal communities or parts of or groups within
such tribes or tribal communities as are defined under ​Article 342 to
be the Scheduled Tribes.
[Note: STs are not defined under Forest Rights Act]
How rights of indigenous people are viewed under our Constitution and
various International Conventions?
1) Constitution of India
➔ Part X of the Constitution of India deals with the Scheduled and
Tribal Areas.
 ◆ Article 244(1) ​under it provides administration of Schedules
Areas and Scheduled Tribes in States (other than Assam,
Meghalaya and Tripura) shall be according to the provisions of
the FIFTH Schedule.
◆ Article 244(2) states that the SIXTH Schedule applied to
Assam, Meghalaya, Tripura and Mizoram.
➔ The object of the Fifth Schedule and the Regulations made
thereunder is to preserve
◆ tribal autonomy,
◆ their cultures and
◆ economic empowerment
To ensure social, economic and political justice for the preservation of
peace and Good Governance in the Scheduled Area.
➔ This court in the case of ​Samatha v. Arunachal Pradesh [(1997) 8
SCC 191]​ had noticed the following:
◆ Agriculture is the only source of livelihood apart from collection
and sale of minor produce from the forests.
◆ Land is the most important natural resource from which the
tribals derive their sustenance, social status, economic and
social equality. Tribes have an emotional attachment towards
their land.
➔ Part B of FIFTH Schedule states that Tribes Advisory Council used to
exercise the powers for those Scheduled Areas where Panchayati
Raj system has not been extended.
◆ The Central Government appointed ​Bhuria Committee to find
out ​whether the Panchayat Raj system could be extended to
Scheduled Areas​.
◆ The committee submitted its report on 17.01,1995 and favoured
such extension.
◆ It is based upon this report that the Parliament enacted ​the
Panchayat (Extension to Scheduled Areas) Act, 1996 (for
short ​'PESA Act'​) thereby extending Part IX of the constitution
relating to Panchayats to Scheduled Areas.
 ◆ In the case of ​Union of India v. Rakesh Kumar [(2010) 4 SCC
50] the SC upheld the constitutional validity of proviso to
Sec-4(g) of PESA act and few sections of Jharkhand. Srec-4(g)
was dealing with reservation in election in such areas.
◆ Sec-4(d): Every Gram Sabha shall be competent to safeguard
and preserve the traditions and customs of the people, their
cultural identity, community resources and the customary mode
of dispute resolution;
Sec-4(i): the Gram Sabha or the Panchayats at the appropriate
level shall be consulted before making the acquisition of land in
the Scheduled Areas for development projects and before
re-setting or rehabilitating persons affected by such projects in
the Scheduled Areas; the actual planning and implementation
of the projects in the Scheduled Areas shall be coordinated at
the State level;
Sec-4(k): the recommendations of the Gram Sabha or the
Panchayats at the appropriate level shall be made mandatory
prior to grant of prospecting licence or mining lease for minor
minerals in the Scheduled Areas;
2) International Conventions
➔ International Labour Organization (ILO) ​Convention on Indigenous
and Tribal Populations Convention, 1957 (No. 107) was the first
international instrument that set forth the rights of indigenous and
tribal populations. It emphasized on protecting social, political and
cultural rights of such people.
Later ILO Convention (No. 169) and ​Indigenous and Tribal Peoples
Convention, 1989 and ​United Nations Declaration on the rights of
Indigenous Peoples (UNDRIP), 2007, came into force. ​However our
India is signatory only to ILO convention No.107.
➔ The ​Convention on Biological Diversity (CBA) adopted the ​Earth’s
Summit (1992) which highlighted the need to preserve and maintain
knowledge, innovation and practices of the local communities
relevant for conservation and sustainable use of biodiversity.
 India is signatory to CBA.
➔ Rio Declaration on Environment and Development Agenda 21
and ​Forestry principle also encourage the promotion of customary
practices conducive to conservation.
Rights of STs and TFDs under Forest Rights Act
➔ The ​Forest Rights Act has been enacted conferring powers on the
Gram Sabha constituted under the Act to protect the community
resources, individual rights, cultural and religious rights.
➔ The Act was enacted to vest and recognise the forest rights to the
dwelling STs and TFDs on forest land, in lieu of a more sustainable
structure where ecological balance has been maintained along with
ensuring food security and livelihood to such STs and TFDs.
The Act intended to recognise longstanding rights of STs and TFDs
over the forest land which means a symbol of generations of
relationship to them.
➔ The Act also protects a wide range of rights of STs and TFDs
including their customary rights to use forest land as a community
forest resource and not restricted merely to property rights or to areas
of habitation.
➔ Sec 3:​ Lists out what are forest rights for the purpose of this Act.
Sec 4: Recognises and vest forest rights in forest dwelling STs and
other TFDs.
Sec 5:​ Lists out the duties in whom the rights vests.
➔ The Ministry of tribal affairs for proper and effective implementation of
the act has issued certain guidelines. [Case Material 2020 Pg: 250 to
257] here that is mentioned in short the gist of those guidelines
i) Process of Recognition of Rights: In this heading lays
down the role of Gram Sabha, Sub-Divisional Level Committee
and the District Level Committee in recognising such rights.
ii) Minor Forest Produce: The most important here is the
freedom to sell the produce without levy of any
fee/charges/royalties on the processing, value addition,
marketing of Minor Forest Produce.
 iii) Community Rights: Sec 3(1)(h) of Forest Rights Act,
issues notices to the State Government to convert all such
unrecorded settlements as revenue villages in a time bound
manner.
iv) Community Forest Resource Rights: Sec 3(1)(i) of Forest
Rights Act, the right recognised is recognised for all villages. If
no community rights for the village are recognised then reasons
to be recorded for the same.
v) Protection Against Eviction, Diversion of Forest Lands
and Forced Relocation: Section 4(5) of Forest Rights Act is
very specific and provides that no member of a forest dwelling
Scheduled Tribe or other traditional forest dwellers shall be
evicted or removed from the forest land under his occupation till
the recognition and verification procedure is complete. This
clause of absolute nature and excludes all possibility of eviction.
vi) Awareness-Raising, Monitoring and Grievance
Redressal: Each State should prepare suitable communication
and training material in local language for effective
implementation of the Act.
Forest Rights Act (FRA) & Mines and Minerals (Regulation and
Development) Act, 1957 (MMRD)
The State of Orissa has maintained that the State has the ownership
over mines and minerals beneath the forest land and the STs and other
TFDs have no right to raise a claim over them and nor does the Gram
Sabha has any right to adjudicate such claims.
In the matter of ​Amritlal Athubhai Shah and Ors. v. Union
Government of India and Anr. [(1976) 4 SCC 108] while dealing with the
scope of MMRD Act held that the State Government is the "owner of
minerals" within its territory, and the minerals "vest" in it. There is nothing in
the Act or the Rules to detract from this basic fact.
★ The FRA neither expressly nor nor impliedly has taken away this right
of the State Government. The State holds the natural resources as a
trustee.
 ★ Sec-3​ of FRA do not vest any such rights in STs and other TFDs.
★ PESA Act speaks only of minor minerals, which says that the
recommendation of Gram Sabha shall be made mandatory prior to
grant of prospecting licence or mining lease for minor minerals in the
Scheduled Areas.
Therefore in ​Amritlal (supra)​, the State Government has the
power to reserve any particular area for Bauxite mining for a Public
Sector Corporation.
Gram Sabha and other authorities:
➔ Gram Sabha has a role to play in safeguarding the customary and
religious rights of the STs and other TFDs under the Forest Rights
Act as guaranteed under Articles 25 and 26 of the Constitution of
India.
➔ Section 6 of the Act confers powers on the Gram Sabha to determine
the nature and extent of "individual" or "community right.
Decision: The Gram Sabha is hereby declared the fit institution to
determine all community, individual, customary and cultural claims arising
out of such forest areas where dwelling of STs and other TFDs are located.
After the Gram Sabha determining the claims submitted before it, the
MoEF shall take a final decision on the grant of Stage II clearance for the
Bauxite Mining Project in the light of the decisions of the Gram Sabha
within two months thereafter

Case: Sansar Chand v State of Rajasthan [2010 (10) SCC 604]

Judgement delivered by: Markandey Katju, J.
Facts: Sansar Chand the appellant, has a long history of criminal activities
such as arrest in 1974 with 680 skins including those of tigers, leopards
and others. The appellant and his gang have built up a complex network
and are accused in 57 wildlife cases between 1974 and 2005.
In the present case, police arrested one Balwan who was traveling in a
train with a carton containing leopard's skin. During investigation, the said
Balwan made a disclosure statement to police that the two leopard skins
were to be handed over to Sansar Chand at Sadar Bazar, Delhi.
Decision:​ Here in this case the SC found the appellant guilty.
[Note: What is important from the point of view is the observations made by
the SC with regards to poaching of wild animals in lieu of profits]
Observations of SC:
➢ One of the main causes of depredation of wildlife is organised
poaching which yields enormous profits in countries like China etc.
➢ The Legal Protection available to protect the wildlife:
○ Article 48A: The State shall endeavour to protect and improve
the environment and to safeguard the forests and wildlife of the
country.
○ Article 51A(g): It is the duty of every citizen of India to protect
and improve the natural environment including the wild life.
Wildlife (Protection) Act, 1972 was enacted for this constitutional
purpose:
○ Chapter III​, prohibits hunting of wild animals except in certain
limited circumstances.
○ Chapter IV​, enables the State Government to declare any area
as a sanctuary or national park, and destruction or removal of
animals from those areas is prohibited except under very limited
circumstances.
○ Chapter V & VA prohibits trade or commerce of wild animals,
animal articles or trophies.
○ Chapter VI makes violation of the provisions of the Act a
criminal offence.
○ By the Wildlife Protection (Amendment) Act, 2002 the
punishment has been increased vide ​Section 51 as amended,
and the property derived from illegal hunting and trade is liable
to forfeiture vide ​Chapter VIA​.
○ Under the Wildlife (Protection) Act, 1972, trading in tiger,
leopard and other animal skins and parts is a serious offence.
➢ India is also signatory to both:
 ○ UN Convention on International Trade in Endangered Species
(CITES)
○ UN Convention against Transnational Organized Crime
(CTOC).
➢ Despite these national and international laws many species of wildlife
e.g. tigers, leopards, bison etc. are under threat of extinction, mainly
due to the poaching organized by international criminal traders and
destruction of the habitats
The SC in this case requested the Central and State Governments and
their agencies to make all efforts to preserve the wildlife of the country and
take stringent actions against those who are violating the provisions of
the Wildlife (Protection) Act, as this is necessary for maintaining the
ecological balance in our country.

Case: Centre For Environment Law, WWF-I v. Union of India & Others
[Supreme Court, I.A. No. 100 in Writ Petition (Civil) No. 337 of 1995,
decided on 15 April 2013]
Judgement delivered by: K.S. Radhakrishnan, J.
Facts: The Gir forests in Gujarat are held as single home for Asiatic Lions
and a need for a second home was felt by the Wildlife Biologists. The
Wildlife Institute of India (WII) based on survey data suggested 3
alternative sites for such re-introduction.
1. Darrah-Jawaharsagar Wildlife Sanctuary (Rajasthan);
2. Sitamata Wildlife Sanctuary (Rajasthan);
3. Kuno Wildlife Sanctuary (Madhya Pradesh).
Out of these 3 ‘Kuno’ was found to be the most suitable site for re-
introduction in establishing a free ranging population of Asiatic lions.
It was noticed that about 1545 families of 24 revenue villages were living
inside Kuno and they had to be rehabilitated outside the sanctuary and that
involved a legal obligation to obtain prior sanction from MoEF under
Section 2 of the Forest (Conservation) Act, 1980.
The Government of India constituted a Monitoring Committee for the
effective implementation of the Asiatic Lion Reintroduction Project at Kuno
which met on 10.3.2004.
The Minister of MoEF sent a letter dated 20.7.2006 to the Chief Minister of
Gujarat for translocation of two numbers of lions to Kuno. The Chief
Minister of Gujarat vide his letter dated 30.4.2006 replied stating that the
matter had been placed before the concerned department for further views.
BUT the Gujarat Government did not act upon it.
Hence, this led to filing of this PIL seeking a direction to the
respondents to implement relocation programme as recommended by WII
and approved by the Government of India.
Issue: Whether the Asiatic lions should have a second home
ARGUMENTS ADVANCED
APPLICANT RESPONDENT
- A 20 year project has been - There is no necessity of
hanging on fire due to the finding a second home for
indifferent attitude of the Asiatic Lions as they are well
Gujarat Government. protected at Gir and nearby
- Necessity for reintroduction of sanctuaries.
Asiatic Lions has been keenly - The population of Asiatic lions
felt and the scientific world has gone up reasonably since
has unanimously advocated a broader conservation
for translocation of this method has been adopted by
endangered species to Kuno the State of Gujarat and at
for its long term survival and present there is no immediate
preservation. threat to the Asiatic lions
- For the above purpose, a total calling for emergency
amount of Rs. 1545 lakh had measures, like translocation
been granted by the or reintroduction.
Government of India and - The past experiences have
utilized by the State shown that such translocation
Government. of lions ended in failure and
- About 24 villages and 1543 possibility of such recurrence
families were relocated cannot be ruled out, since
outside Kuno by the year Kuno is not well set to accept
 2002-2003 and the lands or preserve an endangered
abandoned by them have species like Asiatic lion.
been developed into - No acceptable studies have
grasslands. been done even if the prey
- The population of Asiatic lions based numbers are not
at Gir is increasing but they adequate enough.
are susceptible to threats - Kuno is not an ‘alternative
such as natural calamity, suitable habitat’ within the
outbreak of epidemic etc. meaning of Sec 12 of Wild
- the National Forest Policy and Life (Protection) Act which
the Scheme of 2009 and provides the requirement for
NWAP (2002-2016) and the such translocation.
plans have legislative force as - Why not suitable? Due to:
decided in ​Lafarge Umiam ● inadequacy of prey- base,
Mining Private Limited.,T.N. ● presence of tigers,
Godavarman Thirumulpad ● large scale poaching,
v. Union of India and others ● Unfavourable climate
[(2011) 7 SCC 338] case and condition,
can be enforced through ● Lack of expertise,
Courts. ● human-animal conflict., etc.
- As per tests laid in ​Lafarge
case (supra)​, especially
when the State Board of Wild
Life has stated cogent
reasons why translocation of
lions to Kuno, at present, is
not advisable, which is fully
justified by the objections and
independent scientific
material.
Observations of SC:
Legal and Constitutional framework
➔ “Protection of Wild animals and birds” falls under ​List III, Entry 17B
of Seventh Schedule.
➔ The Wildlife (Protection) Act, 1972 was passed by the Parliament
to ensure such protection and with a view to ensure ecological and
environmental security of the country.
➔ 42nd Constitutional Amendment Act, 1976 inserted ​Article 48A
and ​Article 51A(g) thereby making it the duty of both the State and
the citizens of this country to ensure such protection.
➔ Sec 12 (bb) was inserted by Act of 1982 into Wildlife (Protection) Act
which authorised the Chief WildLife Warden to grant permit for the
purpose of scientific management including translocation of any wild
animal to an ​alternative suitable habitat or population management of
wild life without killing or poisoning or destroying any wild animals.
➔ Parliament via 2003 Amendment Act:
◆ Sec 5A: authorised Central Government to constitute National
Board for Wild life.(NBWL)
◆ Sec 5B: authorizes the National Board to have a standing
committee for the purpose of exercising such powers and
performing such duties as may be delegated to the Committee
by the National Board.
◆ Sec 5C: ​introduced the functions of such a National Board.
The legislature has conferred a duty on NBWL to provide
conservation and development of wildlife and forests and advice to
State and Central governments.
➔ The Parliament enacted:
◆ Biological Diversity Act 2002
◆ National Biodiversity Rules 2004
The main objective of the Act is the conservation of biological
diversity, sustainable use of its components and fair and equitable
sharing of the benefits arising out of the utilization of genetic
resources.
➔ For proper implementation of National Acts and International
Conventions such as the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES), 1973, the
Government has laid down various policies and action plans such as:
◆ the National Forest Policy (NFP) 1988,
◆ National Environment Policy (NEP) 2006,
◆ National Biodiversity Action Plan (NBAP) 2008,
 ◆ National Action Plan on Climate Change (NAPCC) 2008
◆ Integrated development of wildlife habitats and centrally
sponsored scheme framed in the year 2009
◆ Integrated development of National Wild- life Action Plan
(NWAP) 2002-2016.
In ​Lafarge case (supra) this Court held that ​National Forest Policy
1988​ be read together with the ​Forest (Conservation) Act, 1980​.
The Sc has updated the view in the present case by observing
that the ​integrated Development of Wildlife habitat under the
Centrally Sponsored Scheme of 2009 and the ​NWAP (2002-2016)
have to be read along with the provisions of ​the Wild Life
(Conservation) Act.
➔ ‘Integrated Development of Wildlife Habitats’ has been made
operational on 30.7.2009 in addition to ​‘Assistance for the
Development of National Parks and Sanctuaries’​.
The scheme incorporated additional components and activities for
implementing the provisions of the ​Wildlife (Protection) Act, 1972​,
the ​National Wildlife Action Plan (2002-2016)​, recommendations of
the ​Tiger Task Force, 2005 and the ​National Forest Commission,
2006 and the necessities felt from time to time for the conservation of
wildlife and biodiversity in the country.
➔ The scope of the ​Centrally Sponsored scheme was examined in
T.N. Godavarman Thirumulpad v. Union of India and others
[(2012) 3 SCC 277] (Wilde Buffalo case) and it was held that NWAP
2002-2016 and the Centrally Sponsored Scheme 2009 relating to
integrated development of wildlife habitats are ​schemes which have
statutory status.
Note: In this case SC has expanded the scope by stating that while
giving effect to the various provisions of the Wildlife Protection Act,
the Centrally Sponsored Scheme 2009, the NWAP 2002-2016 our
approach should be ​eco-centric and not anthropocentric​.
➔ Anthropocentric: Human interest focused. In this view the humans
take precedence over other non-human things which are merely for
the benefit of the humans.
Eco-centric: Nature-centred. In this view humans are treated to be
part of nature and non-humans have an intrinsic value.
In this case on hand while examining the second home for
Asiaric Lions the approach shall be Eco-centric and not
anthropocentric.
➔ Article 21 of the Constitution of India protects not only human rights
but also casts an obligation on human beings to protect and preserve
a species 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.
➔ ‘​Wild Animal​’ is defined in ​Wildlife (Protection) Act, 1972 u/s- 2(36)
to mean any animal specified in schedules I to IV and found wild in
nature.
➔ ‘​Wild Life​’ has been defined in ​Wildlife (Protection) Act, 1972 u/s-
2(37) to include any animal, bees, butterflies, crustacean, fish and
moths, and or land vegetation which forms part of any habitat.
➔ Sec 9 prohibits hunting of wild animals, specified in ​Schedule I, II, III
and​ IV​ except as provided under ​Sec 11​ and ​Sec 12​.
➔ Animals in the wild are properties of the nation for which no state can
claim ownership and the state’s duty is to protect the wild life and
conserve it, for ensuring the ecological and environmental security of
the country.
On the Issue of second home
➔ The SC disagreed with the Guajarat government and held their
approach to be anthropocentric. In view of the decisions taken by the
NBWL that ​Asiatic lion should have a second home to save it from
extinction, due to catastrophes like epidemic, large forest fire etc,
which could result in extinction, is justified
 African Cheetah to Kuno
➔ It is interesting to note where SC has held the reintroduction of Asiatic
Lions to Kuno, MP. The same court rejected the introduction of
African Cheetahs to Kuno.
Why? Because of the following reasons:
◆ IUCN Guidelines on translocation clearly differentiated between
introduction and re-introduction. The guidelines critically warned
against the introduction of African or imported species which
never existed in India.
◆ The NWAP (2002-2016) does not envisage re-introduction of a
foreign species to India.
◆ Kuno is not a historical habitat for African cheetahs, no
materials have been placed before us to establish that fact.
◆ A detailed scientific study has to be done before introducing a
foreign species to India, which has not been done in the instant
case.
➔ The Sc held that the decision taken by MoEF for ​introduction of
African cheetahs first to Kuno, is arbitrary and illegal and a clear
violation ​of the statutory requirements provided under the Wildlife
Protection Act.
Decision: The Court upheld the decision of MOEF to reintroduce Asiatic
lions to Kuni and directed the State of Gujarat to comply with the scheme.
BUT
At the same time quashed the MOEF decision to introduce African Cheetah
into KUNO as such lacked study and hence arbitrary and illegal.

Case: Divya Pharmacy v. Union of India, High Court of Uttarakhand,

[WP 3437/2016, Decided on 21 December 2018.]
Judgement delivered by Sudhanshu Dhulia, J.:
Facts: ​The Petitioner is aggrieved by the the demand raised by
Uttarakhand Biodiversity Board (from hereinafter referred to as UBB),
under the head "Fair and Equitable Benefit Sharing" (FEBS), as provided
under the Biological Diversity Act, 2002 (from hereinafter referred to as the
Act), and the 2014 Regulations framed therein.
The Petitioner says that UBB cannot raise a demand under the head FEBS
as neither the Board has such jurisdiction nor the petitioner is liable to pay
any amount or make any kind of contribution under the head FEBS.
The current petition challenges the validity of ​Guidelines on Access to
Biological Resources and Associated Knowledge and Benefits Sharing
Regulations, 2014​.

ARGUMENTS ADVANCED
PETITIONER
- FEBS would only arise if an
approval is being taken under
Section 19 and 20 of the Act,
and in no other contingency.
- Both Sections 19 & 21, are
the sections meant for only
"foreign entities", who require
approval from NBA in one
form or the other.
- Prior approval from NBA is
required only to a foreign
entity and for an Indian entity
such as petitioner sec-7
speaks of ‘prior intimation’ to
State Biodiversity Board
(SBB).
- Since petitioners do not fall in
any of the categories defined
u/s- 3(2), no prior approval
from NBA is required.
RESPONDENT
- These Acts and Regulations
are result of these
international commitments:
● Rio de Janeiro Convention
● Johannesburg Declaration
● Nagoya Protocol
- If distinction is made between
‘indian entity’ and ‘foreign
entity’ in relation with FEBS, it
would defeat the purpose of
the act and would be contrary
to the international
conventions to which India is
also a signatory.
- As u/s-3 BDA, ‘foreign entity’
has to take prior approval
from NBA, similarly ‘indian
entity’ u/s-7 need to give prior
intimidation to SBB before
venturing into the area.
Henceforth, FEBS is imposed
by SBB as one of its
regulatory functions.
- Sec 23(b) BDA SBB has got
 - The SBB has no power to powers to regulate a grant
impose FEBS on persons made by an indian entity for
referred to in Sec-7 BDA as commercial utilisation.
- Sec-23(b) read with Sec-7 of
‘indian entities’.
BDA itself implies that ‘prior
information’ does not infer
that SBB has no control over
an Indian entity, it very well
has regulatory powers.
- Sec-24(2) BDA mentions
Power to restrict/prohibit if it is
of the opinion that such
activity is contrary to the use
of objectives of conservation;
sustainable usage; equitable
sharing of the benefits arising
out of such activity.
- Sec-52A of BDA which
provides for appeal before
National Green Tribunal from
the orders of NBA and SBB
regarding determination of
benefit sharing.
The very fact that appeals to
an order of SBB in regards to
FEBS is itself indicative of the
fact that SBB has powers to
impose FEBS.
- In the concept of FEBS no
distinction has been made in
the BDA between an indian
and foreign entity.
Issue: the true interpretation of what constitutes "fair and equitable
benefit sharing", and Whether this liability can be fastened on an
Indian, or an Indian company.
Observations of SC:
➢ The Parliament has passed Biological Diversity Act, 2002 with 3
major objectives, which are:
○ Conservation of Biological Diversity.
○ Sustainable use of its components.
○ Fair and equitable sharing of the benefits arising out of the use
of biological resources.
➢ Indigenous and tribal community who either grow these Biological
resources or have traditional knowledge about their usage. In return
of parting their traditional knowledge certain benefits accrue on them
which are known as​ Fair and Equitable Benefits Sharing ​(FEBS).
➢ The benefit that these indigenous communities get under BDA is
basically from these ‘Biological resources’.
➢ Article 51 (c) of the Constitution​: Promotion of international peace
and security​:- The State shall endeavour to foster respect for
international law and treaty obligations in the dealings of organised
peoples with one another;
INTERNATIONAL CONVENTIONS
➢ Stockholm Conference, 1972 manifesto recognises that earth
resources are finite and there is an urgent need to safeguard these
resources.
➢ Rio de Janeiro Convention, 1992 ​emphasized upon the integration
of the local and indigenous tribes and their practice relating to
traditional lifestyle is of key importance in conservation of biological
diversity and sustainable use of its importance.
[India is a signatory to this convention]
➢ Johannesburg Declaration on Sustainable Development, 2002
reasserted the vital role of indigenous people in the field of
sustainable development.
[Indian Parliament also introduced Biological Diversity Act (BDA) in
the year 2002.]
➢ India is a party to the United Nations Convention on Biological
Diversity signed at Rio on 5th of June 1992. Being a signatory to the
International treaty, India was under an obligation to give effect to the
 provisions of the treaty.
Article 8 of Rio Convention deals with IN-SITU CONSERVATION
and sub clause (j) shall encourage equitable sharing of benefits
arising from the utilization of such knowledge, innovations and
practices of the indigenous and local communities.
Article 20 and ​21 of Rio Convention establishes a financial
mechanism where the benefits of commercial and other utilizations of
such genetic resources reach fairly and equitably to those sharing
this knowledge.
➢ As mentioned above in the first point that the conservation of
Biodiversity has 3 major objectives, the third objective is Fair and
equitable sharing of the benefits arising out of the use of biological
resources.
The ​Nagoya Protocol 2010 focuses on this 3rd objective i.e. FEBS.
The preamble of Nagoya Protocol recognises the importance of
negotiations and mutually agreed terms between the provider and
user of such genetic resources. The local and indigenous
communities are declared to be the beneficiaries and do not make
any distinction with regard to foreign or national entities with regard to
their obligations towards such communities.
RULES OF INTERPRETATION
➢ The SC in a no. of cases has laid down the rule that the "ambiguities"
in the national statute have to be seen in the light of the International
treaties and a purposive rather than a narrow or literal interpretation
has to be made.
➢ In the case of ​T.N. Godavarman v. Union of India (2002) 10 SCC
606 the SC while emphasizing the importance of the international
convention held that ​Article 21 of the Constitution protects the
environment along with principles of sustainable development and
precautionary principles.
As observed in the case of ​Vishaka v. State of Rajasthan in
absence of any inconsistency between domestic and international
convention, the rule of judicial construction is that regard must be
 given to international conventions and norms in construing domestic
laws.
While observing this the SC states that since the ​Convention on
Biological Diversity has been acceded to by our country and,
therefore, it has to implement the same.
➢ In the case of ​Commr. Of Customs v. G.M. Exports [(2016) 1 SCC
91]​ the SC had summarised the authorities for us:
○ Article 51(c) of the Constitution of India which states the State
shall endeavour to foster respect for international law and treaty
obligations. As a result, rules of international law ​which are not
contrary to domestic law are followed by the courts in this
country.
Where India is not a signatory to any International convention
and a clash happens between the domestic law and that
international convention, the domestic law will prevail.
○ In a situation where India is a signatory to an international
convention and a statute is passed pursuant to such treaty then
it shall be legitimate aid to construe the statute in true meaning
of the treaty.
Purposive rather than narrow construction is to be preferred
where broad international principles are to be considered over
narrower domestic precedents.
APPLICATION OF LAW IN THE CASE ON HAND
➢ In order to arrive at true meaning of FEBS, the Biological Diversity
Act, 2002 has been enacted not merely in furtherance of an
International treaty but it is rather to enforce a treaty obligation and
therefore in case there is any difference between the language of a
municipal law [Guidelines on Access to Biological Resources and
Associated Knowledge and Benefits Sharing Regulations, 2014.] and
international law corresponding to provision of the treaty, "the
statutory language should be construed in the same sense as
that of the treaty". This is what has been held by the Hon'ble Apex
Court in ​Commr. Of Customs v. G.M. Exports​ (supra)
 ➢ The Nagoya Protocol emphasizes only to provide benefit to the local
and indigenous communities under FEBS, which is fee imposed. It
will not be proper to continue with the distinction as provided by the
petitioner that there is a distinction between national and foreign
entities to fulfill this obligation towards these communities. Where an
entity is national it also has obligation and thereby levy of FEBS fee is
justified​.
The true interpretation has been provided by using the Purposive
Interpretation where the ambiguity in a statute is removed by reading
and fulfilling the true purpose of the treaty which led to the origin of
such statute.
WHETHER SBB HAS POWERS TO IMPOSE ​FEBS​ IN CASE OF ENTITY
FALLING U/S-7 OF BDA WITH NO FOREIGN ELEMENT ATTACHED TO
THEM.
CAN NBA DELEGATE SUCH POWERS TO SBB?
➢ The power SBB to impose FEBS has been by Regulation of 2014,
framed by NBA. These Regulations of 2014 are currently challenged
in this case. ​Sec-64 r/w Sec- 18(1) ​of BDA​, provides powers to NBA
to frame such regulations.
➢ Precisely, ​Regulation 2,3,4 of Regulations 2014 has been
challenged here to provide for a benefit sharing obligation, for any
person, who wants to have access to "biological resources", which is
a certain percentage of the purchase price. The petitioner which is an
Indian entity is also obliged to pay an amount as FEBS to the SBB.
➢ Sec- 23(b) of BDA is of vital importance as it provides power to SBB
to regulate granting of approvals for commercial usage of these
biological resources by any Indian.
➢ Regulating an activity in the form of demand of a fee is an accepted
practice recognised in law.
➢ Therefore, SBB has power to impose such FEBS fees upon an entity
falling u/s-7 of BDA with no foriegn element attached to them.
Decision:​ Challenge of the Petitioner thereby Fails.
TN Godavarman Thirumulpad v Union of India—Shomona Khanna,
‘Boundaries of Forest Land: The Godavarman case and Beyond’, in
Sharachchandra Lele & Ajit Menon eds., Democratizing Forest Governance
in India 225 (Oxford University Press, 2014)​.

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This is important as it stopped eradication of Forest for timber and also
emphasized on Environment Protection laws more rigidly.