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Supreme Court of India
K.M. Chinnappa, T.N. Godavarman … vs Union Of India And Ors on 30 October, 2002
Author: A Pasayat
Bench: Cji, Y.K. Sabharwal, Arijit Pasayat.
           CASE NO.:
Writ Petition (civil)  202 of 1995

PETITIONER:
K.M. CHINNAPPA, T.N. Godavarman Thirumalpad

RESPONDENT:
Union of India and Ors.

DATE OF JUDGMENT: 30/10/2002

BENCH:
CJI, Y.K. SABHARWAL & ARIJIT PASAYAT.

JUDGMENT:

JUDGMENT

ARIJIT PASAYAT, J.

By destroying nature, environment, man is committing matricide,
having in a way killed Mother Earth. Technological excellence, growth of
industries, economical gains have led to depletion of natural resources
irreversibly. Indifference to the grave consequences, lack of concern and
foresight have contributed in large measures to the alarming position. In the
case at hand, the alleged victim is the flora and fauna in and around
Kudremukh National Park, a part of the Western Ghats. The forests in the
area are among 18 internationally recognized “Hotspots” for bio-diversity
conservation in the world. The I.A. 670 of 2001 was filed by Sri K.M.
Chinnappa describing himself as trustee, Wildlife First.

The said I.A. 670 of 2001 is an offshoot of I.A.548 filed by learned
Amicus Curiae questioning the correctness of orders issued by the States of
Karnataka and Uttar Pradesh respectively which according to him were in
violation of the provisions contained in the Wildlife (Protection) Act, 1972
(in short the ‘Act’). By order dated 14.2.2000, operation of any order
permitting removal of certain trees from National Parks, Game Sanctuaries
and Forests was injuncted. Subsequently, the word ‘forests’ was deleted.

In the present I.A. learned Amicus Curiae has pointed out that
notwithstanding orders passed by this Court on 12.12.1996 and 14.2.2000
mining activities were being conducted by Kudremukh Iron Ore Co. Ltd.
(hereinafter referred to as a ‘company’) which were in clear violation of
orders passed by this Court. The main reliefs sought are:
“(a) to direct the MoEF to withdraw the illegal “temporary
working permission” issued by it and stop mining activities;

(b) direct KIOCL to stop polluting the Bhadra river due to open
cast mining;

(c) take action against KIOCL for illegal encroachment in the
forests and for destruction of forests in the Kudremukh National
Park; and

(d) to stop KIOCL from laying new slurry pipe line in the
forests of the National Park.”

On 10.5.2001, this Court passed an order to the following effect:
“Issue notice returnable in the second week of July,
2001.Mr. A.D.N. Rao, Advocate accepts notice on behalf
of the Union of India. Service be effected on respondent
No. 2 through Mr. S.R. Hedge, A
dvocate and on respondent No. 3 by ordinary process and
by registered post.

Union of India will file an affidavit within eight weeks
and in the affidavit they will also state the reason as to
why the Government of India having once notified the
area as a National Park then permit mining activity to be
carried out notwithstanding this Court’s order of 12th
December, 1996.”

It was noted that Kudremukh National Park in which mining activities
were being carried out was declared to be a National Park in terms of
Section 35(1) of the Act. The matter was referred to the Central Empowered
Committee (in short the ‘Committee’) constituted under Section 3 of the
Environment (Protection) Act, 1986 (in short the ‘Environment Act’). After
hearing the parties and taking note of the materials placed before it the
Committee has recommended as follows:

“After carefully considering all the views and
suggestions, the exceedingly rich biodiversity of the area
and investment made by the KIOCL, suggestion made by
the learned Amicus Curiae, the Committee is of the view
that the KIOCL be asked to wind up its operations within
a period of five years or on the exhaustion of the oxidized
weathered secondary ore, whichever is earlier, in the
already broken up area. It is clarified that the period of 5
years would commence from 25-7-1999, when its lease
had expired.

The winding up period of five years shall be
subject to the following conditions:

(i) the MoEF should prepare or get a
rehabilitation and reclamation and a proper
eco-restoration plan prepared for the mined
area and project impact area through
appropriate agency at the cost of KIOCL;

(ii) KIOCL shall undertake to make available
funds necessary for implementing for the
aforesaid plans. The plans would be
implemented by the agencies selected by the
MoEF and under the supervision of the
MoEF;

(iii) a monetary compensation of Rs.25 crores @
Rs.5/- crores per year will have to be
deposited by KIOCL with MoEF in a
separate bank account which would be
utilized for the purposes of research,
monitoring and strengthening protection of
the Kudremukh National Park and for other
protected areas in the State of Karnataka;

(iv) a Monitoring Committee shall be constituted
by the MoEF comprising representative of
MoEF, representative of the State of
Karnataka, two NGO experts preferably
from Karnataka, which shall monitor the
implementation of the rehabilitation plans;

and

(v) after the winding up operations are
complete, the KIOCL will transfer all the
buildings and other infrastructure to the
Forest Department of the State of Karnataka
at book value.

Transparent guidelines for dealing with development
projects in protected areas as recommended by Learned
Amicus Curiae and agreed to by the MoEF in its affidavit
filed by Shri S.C. Sharma, Additional Director General of
Forests shall be notified within 30 days with the
concurrence of the Central Empowered Committee.”

One of the members of the Committee Shri Valmik Thaper gave a
dissenting note. According to him all mining operations must stop
immediately and the five years’ period starting on 25th July, 1999 (on which
the original lease period expired) must be treated as a “Restoration and
Winding up period” so that the company can restore all mined lands, plant
indigenous species and protect the region and give back to one of the
world’s finest forests what has been taken from it. All costs will be met by
the project proponent. When the matter was taken up, Shri Thaper was
requested to submit further materials, if any, to justify his dissenting note. A
photographic Report has been submitted. The Company has filed its
response in relation to the Committee’s recommendation and connected
reports.

While contending that there was no violation of any law relating to
forests and environment certain legal issues were raised by the Company
which need to be dealt with first. With reference to Rule 24 (B) of the
Mineral Concession Rules, 1960 (in short the ‘Concession Rules’) framed
under the Mines and Minerals (Regulation and Development) Act, 1957 (in
short the ‘Mines Act’), it was submitted that notwithstanding anything
provided under the Act, Conservation Act or the Environment Act, on an
application being made the lease was to be renewed for twenty years and
therefore, the recommendations made at a point of time for such period were
in order. Further, the draft Notification under Section 35(1) of the Act was
issued on 2.9.1987 and the final Notification was published on 16th June,
2001 under Section 35(4) of the Act, whereby the land under mining was
specifically excluded. In any event, 900 hectares of land was outside the
land covered by the Notification. The Notification dated 29.5.1982 issued
under Section 349 of the Karnataka Municipalities Act, 1964 (in short
‘Municipalities Act’) was also relevant. All these, according to Shri
Venugopal, took the land in question outside the purview of the operations
of the Act, Conservation Act and the Environment Act.

With reference to the order dated 14.11.2000 passed in W.P.337/2000,
it was submitted that the same was relatable to a stage under Section 35(5)
of the Act. Since there was an existing legal right to get a renewal, which
had already accrued, there was no question of any embargo on the renewal
of the mining lease. In this background, it was submitted that the State and
the Central Governments at earlier points of time had acceded to the request
of the company for renewing the lease for twenty years. Reference in this
context was made to a letter dated 6.7.1999 issued by the State Government.
It was pointed out that the company had subsisting contracts with foreign
buyers, and if the lease is not renewed or the mining activities are required to
be abandoned, there shall be large financial implications on account of
impossibility to perform the contracts. It was submitted that for the purpose
of renewal, no consent is necessary as an existing right is only to be
extended further. In any event, the period as suggested by the Committee
should be reckoned prospectively and not retrospectively and the two years’
period already covered by temporary working permit should be reckoned
while computing the period. It was pointed out that subsisting contracts with
some foreign countries are operative till 2005 and 2006 and at least adequate
time could be given to fulfill these contracts. Learned counsel for the State
of Karnataka has submitted that originally it had accepted the proposal for
the longer period, but taking into account the various circumstances, its final
stand is that five years period from 24.10.2001 would be adequate, equitable
and fair.

The company has taken a stand that it is earning valuable foreign
exchange and discontinuous of its business activities would stop earning of
valuable foreign exchange in addition to rendering large number of
employees jobless. It is pointed out that some subsisting contracts are there
and in fact there is possibility of extracting 342 million tons of primary ores,
in addition to 119 million tons of secondary weathered ores. In fact, the
company’s request is for permitting activities in some additional areas so
that the primary ores can be extracted and exported in addition to the
secondary weathered ores.

The main thrust of the Company’s plea relating to environmental
issues which was highlighted by Shri Venugopal during hearing of the
application was that the Company has taken all possible steps to preserve
and conserve nature in its pristine glory. It is eco-friendly as would be
evident from the various activities undertaken by it and vast sums of money
spent for preservation of nature and environment in addition to efforts to
prevent pollution. It has received several awards for its admirable
achievements in the field of environmental protection. It was submitted that
sustainable development is permissible and is universally accepted
phenomenon. At the time the company was incorporated environment
impact assessment was conducted and detailed guidelines were formulated
to see that there was least degradation of the environment. The approach was
clearly environmental friendly. The approach in such matters is to see as to
what prevailed when the project was commenced. There has been a
substantial change in the approach and if the contemporaneous factual
backdrop is considered, it will be seen that the company’s anxiety was to
protect nature and environment. Further, the various reports submitted by
expert bodies give a lie to the impressions created before the Committee
that there was continued destruction of nature of the flora and fauna by the
mining activities undertaken by the company. The reality is otherwise. With
reference to a Notification dated 29.5.1982 issued under Section 349 of the
Municipalities Act, it is submitted that the concerned area cannot be a
treated to be a forest land. A reference was also made to a decision in State
of Bihar v. Banshi Ram Modi and Ors.
(1985(3) SCC 643) to contend that
the Act has no application.

Learned Amicus Curiae has pointed out that stands of the company
are per se not acceptable. The Committee has granted to the company much
more than what it deserves. With reference to the report of Shri Valmik, it is
pointed out that the situation is so grave that “hands off situation” has come
to play. It is pointed out that the role of the Karnataka State Government and
the Central Government in the Ministry of Environment and Forest is far
from satisfactory. Even without any Environment Impact Assessment report,
stand was taken for granting 20 years renewal period. There is no
consistency in the stand of the State and the Central Governments because
at one point of time they agreed to renewal period of 20 years and
subsequently turned around to five years period, and then again took
inconsistent stands. All these go to show that there is no proper application
of mind and without realizing the serious consequences involved,
recommendations are being made. In W.P.337/2000 by order dated
14.11.2000, it was, inter-alia, directed as follows:
“……Pending further orders, no de-reservation of
forests/sanctuaries/national parks shall be effected”.

Action of the State Government in excluding land while issuing Notification
under Section 35(4) of the Act is in clear violation of this Courts’ order.

Banshi Ram’s case on which emphasis was laid by the company is not
good law in view of the subsequent decisions of this Court in Ambica
Quarry Works v. State of Gujarat and Ors.
(1987 (1) SCC 213). Reference
may also made be made to the decisions in Tarun Bharat Sangh, Alwar v.
Union of India and Ors.
(1992 Supp. (2) SCC 448), Tarun Bharat Sangh,
Alwar v. Union of India and Ors.
( 1993 Supp. (3) SCC 115) and two
reported orders in T.N. Godavarman Thirumulkpad v. Union of India and
Ors.
(1997 (2) SCC 267) and T.N. Godavarman Thirumulkpad v. Union of
India and Ors.
(1997 (3) SCC 312). The stand of the company that
Notification dated 29.5.1982 excluded the land in question from being forest
land is clearly untenable in view of the Section 2(ii) of the Forest
(Conservation) Act, 1980 (in short the ‘Conservation Act’).

The seminal issue involved is whether the approach should be “dollar
friendly” or “eco friendly”.

‘Environment’ is a difficult word to define. Its normal meaning relates
to the surroundings, but obviously that is a concept which is relatable to
whatever object it is which is surrounded. Einstein had once observed, “The
environment is everything that isn’t me.” About one and half century ago, in
1854, as the famous story goes the wise Indian Chief of Seattle replied to the
offer of the great White Chief in Washington to buy their land. The reply is
profound. It is beautiful. It is timeless. It contains the wisdom of the ages.
It is the first ever and the most understanding statement on environment.
The whole of it is worth quoting as any extract from it is to destroy its
beauty.

“How can you buy or sell the sky, the warmth of
the land? The idea is strange to us.

If we do not own the freshness of the air and the
sparkle of the water, how can you buy them?

Every part of the earth is sacred to my people.

Every shining pine needle, every sandy shore, every mist
in the dark woods, every clearing and humming insect is
holy in the memory and experience of my people. The
sap which courses through the trees carries the memories
of the red man.

‘the white man’s dead forget the country of their
birth when they go to walk among the stars. Our dead
never forget this beautiful earth, for it is the mother of the
red man. We are part of the earth and it is part of us.
The perfumed flowers are our sisters; the horse, the great
eagle, these are our brothers. The rocky crests, the juices
in the meadows, the body heat of the pony, and man all
belong to the same family.’

So, when the Great Chief in Washington sends
word and he wishes to buy our land, he asks much of us.
The Great Chief sends word he will reserve us a place so
that we can live comfortably to ourselves. He will be our
father and we will be his children. So we will consider
your offer to buy our land. But it will not be easy. For
this land is sacred to us.

This shining water moves is the streams and rivers
is not just water but the blood of our ancestors. If we sell
you land, you must remember that it is sacred, and you
must teach your children that it is sacred and that each
ghostly reflection in the clear water of the lakes tells of
events and memories in the life of my people. The
water’s murmur is the voice of my father’s father.

The rivers are our brothers, they quench our thirst.
The rivers carry our canoes, and feed our children. If we
sell you our land you must remember, and teach your
children, that the rivers are our brothers, and yours and
you must henceforth give the kindness you would give
any brother.

We know that the white man does not understand
our ways. One portion of land is the same to him as the
next, for he is a stranger who comes in the night and
takes from the land whatever he needs. The earth is not
his brother but his enemy and when he has conquered it,
he moves on. He leaves his father’s graves behind, and
he does not care.

He kidnaps the earth from his children. His
father’s grave and his children’s birthright are forgotten.
He treats his mother, the earth, and his brother, the sky,
as things to be bought, plundered, sold like sheep or
bright beads. His appetite will devour the earth and leave
behind only a desert.

I do not know. Our ways are different from your
ways. The sight of your cities pains the eyes of the red
man. But perhaps it is because the red man is a savage
and does not understand.

There is no quiet place in the white man’s cities.
No place to hear the unfurling of leaves in spring or the
rustle of in insect’s wings. But perhaps it is because I am
a savage and do not understand. The clatter only seems
to insult the ears. And what is there in life if a man
cannot hear the lonely cry of the whippoorwill or the
arguments of the frogs around a pond at night? I am a red
man and do not understand. The Indian prefers the soft
sound of the wind darting over the face of a pond, and the
smell of the wind itself, cleansed by a mid-day rain, or
scented with the pinon pine.

The air is precious to the red man, for all things
share the same breath the beast, the tree, the man, they
all share the same breath. The white man does not seem
to notice the air he breathes. Like a man lying for many
days, he is numb to the stench. But if we sell you our
land, you must remember that the air is precious to us,
that the air shares its spirit with all the life it supports.
The wind that gave our grandfather his first breath also
receives the last sign. And if we sell you our land, you
must keep it apart and sacred as a place where even the
white man can go to taste the wind that is sweetened by
the meadow’s flowers.

So we will consider your offer to buy our land. If
we decide to accept, I will make one condition. The
white man must treat the beasts of this land as his
brothers.

I am a savage and I do not understand any other
way. I have seen thousand rotting buffaloes on the
prairie, left by the white man who shot them from a
passing train. I am a savage and I do not understand how
the smoking iron horse can be more important than the
buffalo that we kill only to stay alive.

What is man without the beasts? If all the beasts
were gone, man would die from a great loneliness of
spirit. For whatever happens to the beasts soon happens
to man. All things are connected.

You must teach your children that the ground
beneath their feet is the ashes of our grandfathers, so that
they will respect the land. Tell your children that the
earth is rich with the lives of our kin. Teach your
children what we have taught our children, that the earth
is our mother. Whatever befalls the earth befalls the sons
of the earth. If man spit upon the ground, they spit upon
themselves.

This we know : The earth does not belong to man,
man belongs to the earth. This we know: All things are
connected like the blood which unites one family. All
things are connected.

Whatever befalls the earth befalls the sons of the
earth. Man did not wave the web of life; he is merely a
strand in it. Whatever he does to the web he does to
himself.

Even the white man, whose God walks and talks
with him as friend to friend cannot be exempt from the
common destiny. We may be brothers after all. We shall
see. One thing we know, which the white man may one
day discover our God is the same God. You may think
now that you own him as you wish to own our land; but
you cannot. He is the God of man, and his compassion is
equal for the red man and the white. This earth is
precious to him, and to harm the earth is to heap
contempt on the creator. The white too shall pass
perhaps sooner than all other tribes. Contaminate your
bed and you will one night suffocate in your own waste.

But in your perishing you will shine brightly, fired
by the strength of the God who brought you this land and
for some special purpose gave you dominion over this
land and over the red man. That destiny is a mystery to
us, for we do not understand when the wild buffaloes are
slaughtered, the wild horses are tamed, the secret corners
of the forest heavy with scent of many men and the view
of the ripe hills blotted by talking wires. Where is the
thicket? Gone, where is the eagle? Gone. The end of
living and the beginning of survival.”

It would be hard to find out such dawn to earth description of nature.
“Nature hates monopolies and knows no exception. It has always some
levelling agency that puts the overbearing, the strong, the rich, the fortunate
substantially on the same ground with all others” said Zarathustra.
Environment is polycentric and multi-facet problem affecting the human
existence. The Stockholm Declaration of United Nations on Human
Environment, 1972, reads its Principle No.3, inter-alia, thus:
“Man has the fundamental right to freedom,
equality, and adequate conditions of life. In an
environment of equality that permits a life of dignity and
well being and bears a solemn responsibility to protect
and improve the environment for present and future
generations.”

The Declaration, ‘therefore, says that’ in the developing countries,
most of the environmental problems are caused by underdevelopments. The
Declaration suggests to safe actions with prudent care for ecological balance.
It is necessary to avoid massive and irreversible harm to the earthly
environment and strife for achieving present generation and the posterity a
better life in an environment more in keeping with the needs and hopes. In
this context immediately comes to mind the words of Pythogarus who said:
“For so long as man continues to be the ruthless
destroyer of lower living beings, he will never know
health or peace. For so long as men massacre animals,
they will kill each other. Indeed, they who sow the seeds
of murder and pain cannot reap joy and love.”

Article 48-A in Part IV (Directive Principles) of the Constitution of
India, 1950 brought by the Constitution (42nd Amendment) Act, 1976,
enjoins that “State shall endeavour to protect and improve the environment
and to safeguard the forests and wild life of the country.” Article 47 further
imposes the duty on the State to improve public health as its primary duty.
Article 51-A(g) imposes “a fundamental duty” on every citizen of India to
protect and improve the natural “environment” including forests, lakes,
rivers and wild life and to have compassion for living creatures. The word
“environment” is of broad spectrum which brings within its ambit “hygienic
atmosphere and ecological balance.” It is, therefore, not only the duty of the
State but also the duty of every citizen to maintain hygienic environment.
The State, in particular has duty in that behalf and to shed its extravagant
unbridled sovereign power and to forge in its policy to maintain ecological
balance and hygienic environment. Article 21 protects right to life as a
fundamental right. Enjoyment of life and its attainment including their right
to life with human dignity encompasses within its ambit, the protection and
preservation of environment, ecological balance free from pollution of air
and water, sanitation without which life cannot be enjoyed. Any contra acts
or actions would cause environmental pollution. Therefore, hygienic
environment is an integral facet of right to healthy life and it would be
impossible to live with human dignity without a humane and healthy
environment. Environmental protection, therefore, has now become a matter
of grave concern for human existence. Promoting environmental protection
implies maintenance of the environment as a whole comprising the man-
made and the natural environment. Therefore, there is constitutional
imperative on the Central Government, State Governments and bodies like
Municipalities, not only to ensure and safeguard proper environment but also
an imperative duty to take adequate measure to promote, protect and
improve the environment man-made and natural environment.

Industrialisation, urbanisation, explosion of population, over-
exploitation of resources, depletion of traditional sources of energy and raw
materials, and the search for new sources of energy and raw materials, the
disruption of natural ecological balances, the destruction of multitude of
animal and plant species for economic reasons and sometimes for no good
reason at all are factors which have contributed to environmental
deterioration. While the scientific and technological progress of man has
invested him with immense power over nature, it has also resulted in the
unthinking use of the power, encroaching endlessly on nature. If man is able
to transform deserts into oasis, he is also leaving behind deserts in the place
of oasis. In the last century, a great German materialist philosopher warned
mankind : “Let us not, however, flatter ourselves over much on account of
our human victories over nature. For each such victory nature takes its
revenge on us. Each victory, it is true, in the first place brings about the
results we expected, but in the second and third places it has quite different,
unforeseen effects which only too often cancel the first. Ecologists are of
the opinion that the most important ecological and social problem is the
wide spread disappearance all over the world of certain species of living
organisms. Ecologists forecast the extinction of animal and plant species on
a scale that is incompatibly greater than their extinction over the course of
millions of years. It is said that over half the species which became extinct
over the last 2000 years did so after 1900. The International Association for
the Protection of Nature and Natural Resources calculates that now, on
average, one species or sub-species is lost every year. It is said that
approximately 1000 birds and animal species are facing extinction at
present. It is for this that the environmental questions have become urgent
and they have to be properly understood and squarely met by man. Nature
and history are two components of the environment in which we live, move
and prove ourselves. This Court in Sachindanand Pandey and Anr. v. State
of West Bengal and Ors. (AIR 1987 SC 1109) and Virender Gaur v. State of
Haryana, (1995 AIR SCW 306) has highlighted these aspects.

Environmental law is an instrument to protect and improve the
environment and to control or prevent any act or omission polluting or likely
to pollute the environment. In view of the enormous challenges thrown by
the industrial revolution, the legislatures throughout the world are busy in
this exercise. Many have enacted laws long back and they are busy in
remodeling the environmental law. The others have moved their law making
machineries in this direction except the under-developed States who have
yet to come in this wave length. India was one of those few countries which
paid attention right from the ancient time down to the present age and till
date, the tailoring of the existing law to suit the changing conditions is going
on. The problem of law-making and amending is a difficult task in this area.
There are a variety of colours of this problem. For example, the industrial
revolution and the evolution of certain cultural and moral values of the
humanity and the rural and urban area developments in agricultural
technology, waste, barren or industrial belts; developed, developing and
under-developed parts of the lands; the rich and poor Indians; the population
explosion and the industrial implosion; the people’s increasing awareness
and the decreasing State Exchequer; the promises in the political manifestos
and the State’s development action. In this whole gamut of the problems the
Tiwari Committee came out with the date that we have in India “nearly five
hundred environmental laws” and the Committee pointed out that no
systematic study had been undertaken to evaluate those legislative
developments. Some legal controls and techniques have been adopted by the
legislatures in the field of Indian Environmental Laws. Different legislative
controls right from the ancient time, down to the modern period make
interesting reading. Attention has to be paid to identify the areas of great
concern to the legislature; the techniques adopted to solve those problems;
the pollutants which required continuous exercises; the role of legislature
and people’s participation outside. These are some of many areas which
attract the attention in the study of history of the Indian Environmental Law.
Since time immemorial, natural objects like rivers enjoyed a high
position in the life of the society. They were considered as Goddesses
having not only the purifying capacity but also self-purifying ability.
Fouling of the water of a river was considered a sin and it attracted
punishments of different grades which included, penance, outcasting, fine,
etc. The earth or soil also equally had the same importance, and the ancient
literature provided the means to purify the polluted soil. The above are
some of the many illustrations to support the view that environmental
pollution was controlled rigidly in the ancient time. It was not an affair
limited to an individual or individuals but the society as a whole accepted its
duty to protect the environment. The ‘dharma’ of environment was to
sustain and ensure progress and welfare of all. The inner urge of the
individuals to follow the set norms of the society, motivated them to allow
the natural objects to remain in the natural state. Apart from this motivation,
there was the fear of punishment. There were efforts not just to punish the
culprit but to balance the eco-systems. The noteworthy development in this
period was that each individual knew his duty to protect the environment
and he tried to act accordingly. Those aspects have been highlighted by a
learned author C.M. Jariwala in his article “Changing Dimensions of the
Indian Environmental Law” in the book “Law and Environment” by P.
Leelakrishnan.

The Economic and Special Council of the United Nations passed a
resolution on 30th July, 1968 on the question of convening an International
Conference on problems of human environment. In the United Nations
Conference on Human Environment at Stockholm from 6th to 16th June,
1972, proclamation was made on United Nations on Human Environment. It
was stated in the proclamation in these profound words:
“Man is both creature and moulder of his
environment which gives his physical sustenance and
affords him the opportunity for intellectual, moral, social
and spiritual growth. In the long and tortuous evolution
of the human race on this planet a stage has been reached
when through the rapid acceleration of science and
technology, man has acquired the power to transform his
environment in countless ways and on an unprecedented
scale. Both aspects of men’s environment, the natural
and the man made, are essential to his well being and to
the enjoyment of basic human rights even the right to life
itself.

The protection and improvement of the human
environment is a major issue which affects the well being
of people and economic development throughout the
world, it is the urgent desire of the peoples of the whole
world and the duty of all Governments.”

When the necessity to promote the environment turned grave, doubt
was expressed by some commentators whether the issue of the environment
would last. They have been proved wrong, since it is clearly one of the big
issues, perhaps the biggest issue of the 1990s. It is a big issue in political
terms, since protection of the environment is high on most people’s priorities
for the 1990s. As a result political parties and Governments are falling over
each other in their eagerness to appear green, even if as yet their actions
rarely match their rhetoric. It is big in terms of the size of the problem faced
and the solutions required; global warning, the destruction of the ozone
layer, acid rain, deforestation, overpopulation and toxic waste are all global
issue which require an appropriately global response. It is big in terms of
the range of problems and issues air pollution, water pollution, noise
pollution, waste disposal radioactivity, pesticides, countryside protection,
conservation of wildlife the list is virtually endless. As observed by Simon
Bell and Stuart Bell in ‘Environmental Law’ :

“………..In the words of the White Paper on the
Environment. This Common Inheritance (cm. 1200,
1990) the issues range ‘from the street corner to the
stratosphere.’ Finally, it is big in terms of the knowledge
and skills required to understand a particular issue. Law
is only one element in what is a major cross-disciplinary
topic. Lawyers need some understanding of the
scientific, political and economic processes involved in
environmental degradation. Equally all those whose
activities and interests relate to the environment need to
acquire an understanding of the structure and content of
environmental law, since it has a large and increasing
role to play in environmental protection.”

Apart from the direct cost to business of complying with stricter
regulatory controls, the potential liabilities for non-compliance are also
increasing. These liabilities fall into five general categories :

(a) Criminal liabilities;

The number of criminal offences for non-compliance with
environmental legislation is immense, and in recent years the regulation
agencies have shown an increased willingness to resort to prosecution.
Private prosecution is also a possibility. Fines will be the normal penalty,
though in a number of cases sentences of imprisonment have been imposed
(there is normally a potential personal liability for directors and senior
managers). Maximum fine levels have risen in recent years, as have actual
levels of fines imposed.

(b) Administrative sanctions :

In most regulatory systems there is a range of options available to the
regulator, including variation, suspension or revocation of a licence. Since
these steps may lead to the closure of a plant, they are obviously of great
importance.

(c) Clean up costs :

In most environmental legislation there is a power to clean up after a
pollution incident and receive the cost from the polluter or (in some cases)
the occupier.

(d) Civil liability :

There is growing interest in the toxic torts, although many of the
actions have in fact been around for a long time. Many environmental
actions rest upon strict liability. Although liability may often be difficult to
establish, the size of claims may be very high indeed.

(e) Adverse publicity :

In practice the publicity attracted as a result of infringements of the
law may be as costly as any direct costs.

The tide of judicial considerations in environmental litigation in India
symbolizes the anxiety of Courts in finding out appropriate remedies for
environmental maladies. At global level, the right to live is now recognized
as a fundamental right to an environment adequate for health and well being
of human beings. (See World Commission on Environment and
Development – Our Common Future (1987). To commemorate the tenth
anniversary of the Stockholm Conference, the World Community of States
assembled in Nairobi (May 10-18, 1982) to review the action taken on to
implement Stockholm Declaration. It expressed serious concern about the
state of environment world wide and recognized the urgent need of
intensifying the effort at the global, regional and national levels to protect
and improve it.

Progress and pollution go together. As this Court observed in M.C.
Mehta and Anr. v. Union of India and Ors. (AIR
1987 SC 965), when
science and technology are increasingly employed in producing goods and
services calculated to improve the quality of life, there is certain element of
hazard or risk inherent in the very use of science and technology and it is not
possible to totally eliminate such hazard or risk altogether. We can only
hope to reduce the element of hazard or risk to the community by taking all
necessary steps for locating such industries in a manner which would pose
least risk of danger to the community and maximizing safety requirements.
As observed in the United Nations Conference held at Stockholm in June,
1972, economic and social development was essential for ensuring a
favourable living and working environment for man and for creating
condition on earth that were necessary for the improvement of the quality of
life.

The tragedy of the predicament of the civilized man is that ‘Every
source from which man has increased his power on earth has been used to
diminish the prospects of his successors. All his progress is being made at
the expense of damage to the environment which he cannot repair and
cannot foresee’. There is increase in awareness of the compelling need to
restore the serious ecological imbalances introduced by the depredations
inflicted on nature by man. The state to which the ecological imbalance and
the consequent environmental damage have reached is so alarming that
unless immediate, determined and effective steps were taken, the damage
might become irreversible. In his foreward to International Wild Life Law,
M.R.M. Prince Philip the Duke of Edinburgh said :
“Many people seem to think that the conservation of
nature is simply a matter of being kind to animals and
enjoying walks in the country-side. Sadly, perhaps, it is a
great deal more complicated than that…………….. As usual
with all legal systems, the crucial requirement is for the
terms of the conversions to be widely accepted and
rapidly implemented……Regretfully progress in this
direction is proving disastorously slow.” (See
International Wildlife Law by Simon Lyster, Cambridge,
Grotius Publications Ltd. 1985 Edn.)

The United National General Assembly adopted on October 29, 1982,
‘the World Charter for Nature’. The Chapter declares the Awareness that :
“(a) Mankind is a part of nature and life depends on the
uninterrupted functioning of natural systems which
ensure the supply of energy and nutrients.

(b) Civilization is rooted in nature, which has shaped
human culture and influenced all artistic and scientific
achievement, and living in harmony with nature gives
man the best opportunities for the development of his
creativity, and for rest and recreation.”

Towards the end of his reign, King Asoka in the third century B.C.
issued a decree that it has a particularly contemporary ring in the matter of
preservation of wild life and environment. He had written :
“Twenty-six years after my coronation, I declare that the
following animals were not to be killed, parrots, mynas,
the aruna, ruddy geese, wild geese, the nandimukha,
cranes, bats, queen, ants, terrapins, boneless fish,
rhinoceroses….. and all quadrupeds which are not useful
or edible…..Forest must not be burned.”

To protect and improve the environment is a constitutional mandate.
It is a commitment for a country wedded to the ideas of a welfare State. The
world is under an impenetrable cloud. In view of enormous challenges
thrown by the Industrial revolution, the legislatures throughout the world are
busy in their exercise to find out means to protect the world. Every
individual in the society has a duty to protect the nature. People worship the
objects of nature. The trees, water, land and animals had gained important
positions in the ancient times. As Manu VIII, page 282 says different
punishments were prescribed for causing injuries to plants. Kautilya went a
step further and fixed the punishment on the basis of importance of the part
of the tree. (See Kautilya III, XIX, 197)

As observed by this Court in Rural Litigation and Entitlement Kendra
v. State of Uttar Pradesh (AIR 1987 SC 359), natural resources have got to
be tapped for the purpose of social development but one cannot forget at the
same time that tapping of resources has to be done with requisite attention
and care so that ecology and environment may not be affected in any serious
way; there may not be any depletion of water resources and long-term
planning must be undertaken to keep up the national wealth. It has always to
be remembered that these are permanent assets of mankind and are not
intended to be exhausted in one generation.

The Academy Law Review at pages 137-138 says that a recent
survey reveals that every day millions of gallons of trade wastes and
effluents are discharged into the rivers, steams, lake and sea etc.
Indiscriminate water pollution is a problem all over the world but is now
acute in densely populated industrial cities. Our country is no exception to
this. Air pollution has further added to the intensity and extent of the
problem. Every year millions of tons of gaseous and particulate pollutants
are injected into the atmosphere, both through natural processes and as a
direct result of human activity. Scientists have pointed out that earth’s
atmosphere cannot absorb such unlimited amount of pollutant materials
without undergoing changes which may be of an adverse nature with respect
to human welfare. Man in order to survive in his planetary home will have
to strike the harmonious balance with nature. There may be boundless
progress scientifically which may ultimate lead to destruction of man’s
valued position in life. The Constitution has laid the foundation of Articles
48-A and 51-A for a jurisprudence of environmental protection. Today, the
State and the citizen are under a fundamental obligation to protect and
improve the environment, including forests, lakes, rivers, wildlife and to
have compassion for living creatures.

A learned Jurist has said, the Rig Veda praises the beauty of the dawn
(usha) and worships Nature in all its glory. And yet today a bath in the
Yamuna and Ganga is a sin against bodily health, not a salvation for the soul
so polluted and noxious are these ‘Holy’ waters now. “One hospital bed
out of four in the world is occupied by a patient who is ill because of
polluted water…..Provision of a safe and convenient water supply is the most
important activity that could be undertaken to improve the health of people
living in rural areas of the developing world.” (W.H.O.) “Nature never did
betray. That heart that loved her.” (Wordsworth). The anxiety to save the
environment manifested in the Constitution (Forty-Second Amendment)
Act, 1976 by the introduction of a specific provision for the first time to
“protect and improve” the environment. Man is Nature’s best promise and
worst enemy. If industry is necessity, pollution inevitable. Since progress
and pollution go together, there can be no end of progress, and consequently,
no escape from pollution. If industry is necessary evil, pollution surest
sufferance. Several enactments have been made to combat pollution.
“Pollution” is noun derived from the transitive verb “pollute” which means
to make foul or unclean, dirty, to make impure or morally unclean. In
Halsbury’s Laws of England (Forth Edition, Volume 38, para 66)
“pollution” means the direct or indirect discharge by man of substances or
energy into the aquatic environment resulting in hazard to human health,
harm to living resources and aquatic ecosystems, damage to amenities on
interference with other legitimate use of water.

In Divisional Forest Officer and Ors. v. S. Nageswaramma (1996 (6)
SCC 442) it was observed that the renewal of lease is not a vested right of
the lessee. There is a total prohibition against the grant of mining lease in a
forest area without concurrence of the Central Government. As was
observed by this Court in M.C. Mehta v. Kamal Nath and Ors. ( 1997 (1)
SCC 388), our legal system based on English Common Law 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.
Public at large is the beneficiary of the sea-shore, running waters, airs,
forests and ecologically fragile lands. 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.

The aesthetic use and the pristine glory cannot be permitted to
be eroded for private, commercial or any other use unless the courts find it
necessary, in good faith, for public good and in public interest to encroach
upon the said resources.

It cannot be disputed that no development is possible without some
adverse effect on the ecology and environment, and the projects of public
utility cannot be abandoned and it is necessary to adjust the interest of the
people as well as the necessity to maintain the environment. The balance has
to be struck between the two interests. Where the commercial venture or
enterprise would bring in results which are far more useful for the people,
difficulty of a small number of people has to be bypassed. The comparative
hardships have to be balanced and the convenience and benefit to a larger
section of the people has to get primacy over comparatively lesser hardship.

In this background, the Environment Impact Assessment reports are of
great importance. The Council on European Economic Committee in their
directive to the member States highlighted objectives of such assessments as
follows:

“The effect of a project on the environment must
be assessed in order to take action of the concerns to
protect human health, to contribute by means of a better
environment to the quality of life, to ensure maintenance
of the diversity of species and to maintain the
reproductive capacity of the eco-system as a basic
resource of life.”

A few decisions taken at the Convention on Biological Diversity dated
5th June, 1992 would be relevant.

The Preamble, inter-alia, contains the following:
“Concerned that biological diversity is being
significantly reduced by certain human activities. Aware
of the general lack of information and knowledge
regarding biological diversity and of the urgent need to
develop scientific, technical and institutional capacities to
provide the basic understanding upon which to plan and
implement appropriate measures. Noting that it is vital to
anticipate, prevent and attack the causes of significant
reduction or loss of biological diversity at source. Noting
further that the fundamental requirement for the
conservation of biological diversity is the in-situ
conservation of ecosystems and natural habitats and the
maintenance and recovery of viable populations of
species in their natural surroundings.”

Articles 1, 6, 7 and 14(a) are also important.

Article 1: Objectives-

The objectives of this Convention to be pursued in
accordance with its relevant provisions are the
conservation of biological diversity, the sustainable use
of its components and the fair and equitable sharing of
the benefits arising out of the utilization of genetic
resources including by appropriate access to genetic
resources and by appropriate transfer of relevant
technologies, taking into account all rights over those
resources and to technologies, and by appropriate
funding.

Article 6: General measures for conservation and
sustainable use-

Each contracting party shall, in accordance with its
particular conditions and capabilities:

(a) develop national strategies, plans or
programmes for the conservation and sustainable use of
biological diversity or adopt for this purpose existing
strategies, plans or programmes which shall reflect, inter
alia, the measures set out in this Convention relevant to
the contracting party concerned; and

(b) integrate, as far as possible and as
appropriate, the conservation and sustainable use of
biological diversity into relevant sectoral or cross-
sectoral plans, programmes and policies.

Article 7: Identification and Monitoring

Each contracting party shall, as far as possible and
as appropriate, in particular for the purposes of Articles 8
to 10:

(a) identify components of biological diversity
important for its conservation and sustainable use having
regard to the indicative list of categories set down in
Annexure 1;

(b) Monitor, through sampling and other
techniques, the components of biological diversity
identified pursuant to sub-paragraph (a) above, paying
particular attention to those requiring urgent conservation
measures and those which offer the greatest potential for
sustainable use;

(c) identify processes and categories of
activities which have or are likely to have significant
adverse impacts on the conservation and sustainable use
of biological diversity, and monitor their effects through
sampling and other techniques; and

(d) maintain and organize, by any mechanism
data, derived from identification and monitoring
activities pursuant to sub-paragraphs (a), (b) and (c)
above.

Article 14(a): Impact Assessment and Minimizing
Adverse Impacts-

Each contracting party, as far as possible and as
appropriate, shall:

(a) introduce appropriate procedures requiring
environment impact assessment of its proposed projects
that are likely to have significant adverse effects on
biological diversity with a view to avoiding or
minimizing such effects and, where appropriate, allow
for public participation in such procedures.”

Sustainable development is essentially a policy and strategy for
continued economic and social development without detriment to the
environment and natural resources on the quality of which continued activity
and further development depend. Therefore, while thinking of the
developmental measures the needs of the present and the ability of the future
to meet its own needs and requirements have to be kept in view. While
thinking of the present, the future should not be forgotten. We owe a duty to
future generations and for a bright today, bleak tomorrow cannot be
countenanced. We must learn from our experiences of past to make both the
present and the future brighter. We learn from our experiences, mistakes
from the past, so that they can be rectified for a better present and the future.
It cannot be lost sight of that while today is yesterday’s tomorrow, it is
tomorrow’s yesterday.

The greenery of India should not be allowed to be perished, to be
replaced by deserts. Euthopia which at a point of time was considered to be
one of the greenest countries, is virtually a vast desert today.

The Union Government framed National Forest Policy in 1988.
Though the basic objectives are very laudable, it is sad to note that it has
virtually been confined in papers containing it, and not much has been done
to translate them into reality. Nevertheless, it reflects anxiety of the Union
Government to protect and preserve natural forests with vast variety of flora
and fauna, representing biological diversity and genetic resources of the
country.

Duty is cast upon the Government under Article 21 of the Constitution
of India to protect the environment and the two salutary principles which
govern the law of environment are: (i) the principles of sustainable
development and (ii) the precautionary principle. It needs to be highlighted
that the Convention on Biological Diversity has been acceded to by our
country and, therefore, it has to implement the same. As was observed by
this Court in Vishaka and Ors. v. State of Rajasthan and Ors. ( 1997 (6) SCC

241), in the absence of any inconsistency between the domestic law and the
international conventions, the rule of judicial construction is that regard
must be had to international convention and norms even in construing the
domestic law. It is, therefore, necessary for the Government to keep in view
the international obligations while exercising discretionary powers under the
Conservation Act unless there are compelling reasons to depart therefrom.

The United Nations Conference on Human Environment held in
Stockholm during June 1972 brought into focus several alarming situations
and highlighted the immediate need to take steps to control menace of
pollution to the Mother Earth, air and of space failing which, the Conference
cautioned the mankind, it should be ready to face the disastrous
consequences. The suggestions noted in this Conference were reaffirmed in
successive Conference followed by Earth Summit held at Rio-de Janeiro
(Brazil) in 1992.

So far as the effect of Rule 24B of the Minerals Rules is concerned, it
is to be noted that Section 2(ii) of the Conservation Act rules out non-forest
activities. The Section begins with a non-obstante clause providing that
notwithstanding anything contained in any other law for the time being in
force in a State, no State Government or other authority shall make, except
with the prior approval of the Central Government any order of the nature
enumerated in the provision. Section 3 of the Conservation Act deals with
constitution of Advisory Committee and Section 4 deals with power to make
rules. Rules 4, 5 and 6 of the Forest Conservation Rules, 1981 (in short
‘Conservation Rules’) are relevant. Rule 4 deals with procedure to make
proposal by a State Government or their authority. Rule 5 deals with the
powers of the Committee to advise on proposals received by the Central
Government. The Committee referred to therein is the one constituted under
Section 3 of the Act. Rule 6 deals with action of the Central Government on
the advise of the Committee. Admittedly, the Central Government has not
accorded the approval for use of any forest land or any portion thereof for
being used for any non forest purpose. That being so, Rule 29(b) of the
Mineral Rules cannot be of any assistance to the company. So far as the
order dated 14.11.2000 in W.P. 337/2000 is concerned, it is clear therefrom
that de-reservation of forests, sanctuaries and national parks was prohibited.
Therefore, exclusion of company’s land in terms of the Notification under
Section 35(4) of the Act though same was being used for mining by the
company, was not in order to that extent.

So far as the letter dated 6th July, 1999 of the Government of
Karnataka is concerned, it does not in any way help the company and on the
contrary makes its case more brittle. A few paragraphs of the said letter need
to be noted here:

x x x x x x x
“Considering the above and as the present lease
will expire on 24.7.99, the P.C.C.F. has recommended for
grant of temporary working permission to the above
company to carry out the mining activities for a period of
2 years so as to avoid hardship to it, which is a
Government of India Undertaking. Further, Environment
Impact Assessment and studies on impact of mining on
flora and fauna in this sensitive area is to be carried out
by the reputed Environmental Institute and Wildlife
Institute respectively that is by Environmental Research
Institute, Nehrunagar, Nagpur (Maharashtra) and Wild
Life Institute, Dehradun (Uttar Pradesh). After these
studies are conducted and based on the recommendations
to be made by these Institutes to minimize the
environmental damage it can be decided whether to allow
the mining and renew the lease or otherwise in favour of
M/s. Kudremukh Iron Ore Company Ltd., in this
sensitive area of Western Ghat Region.

x x x x x x x

Under the circumstances explained above, I am
directed to request you to kindly communicate the
approval of Government of India on the following
proposals:

(i) for renewal of lease of 1452.74 hectares of
forest land which is already broken up in favour of
M/s. Kudremukh Iron Ore Company Ltd for a
period of 20 years with effect from 25.7.1999.

(ii) to grant temporary working permission in
the already broken up area of 1452.74 hectares
forest land to the above company to carry out
mining activities for a period of 2 years since the
lease of forest land will expire on 24.7.1999.”

x x x x x x x

It is an accepted fact that the Environment Impact Assessment Reports
of the two named institutes have not been obtained. Therefore, in reality
there was no Environment Impact Assessment report either before the State
or the Central Government. Further, the request of the State Government
was to grant temporary working permission in respect of already broken up
area, pending fulfillment of conditions enumerated.
Coming to plea that in case of a renewal there is no requirement of
compliance of Section 2 of the Conservation Act, the stand is clearly
untenable in view of decisions in Ambica Quarry’s case (supra) and Rural
Litigation and Entitlement Kendera v. State of U.P.
( AIR 1988 SC 2187)
where at page 2201 it was observed that ‘whether it is a case of first grant or
renewal following exercise of option by the lessee, the compliance of
Section 2 of the Conservation Act is necessary as a condition precedent’. It
may be noted here that the area in question was declared to be a reserved
area in 1960 and in 1987 the Notification under Section 35(1) was issued.

It is of significance that in the present case the Forest Advisory
Committee under the Conservation Act on 11.7.2001 examined the renewal
proposal in respect of the company’s mining lease. It recommended that the
mining may be allowed for a period of four years i.e. upto the year 2005 by
which time the weathered secondary ore available in the already broken up
area would be exhausted. The Ministry of Environment and Forests deferred
a formal decision on the said recommendation as the matter was pending
before this Court.

On consideration of the materials on record we find no reason to vary
the majority view of the Committee, a statutory one when its findings and
conclusions are based on assessments of the factual aspects and after duly
considering the materials and Reports placed before it by the parties. We
have also taken note of the period indicated by the Forest Advisory
Committee, which is also a statutory Committee.

Taking note of the factual background and the legal position
highlighted above, we think it proper to accept the time period fixed by the
Forest Advisory Committee constituted under Section 3 of the Conservation
Act. That means mining should be allowed till the end of 2005 by which
time the weathered secondary ore available in the already broken area should
be exhausted. This is, however, subject to fulfillment of the
recommendations made by the Committee on eco-logical and other aspects.

The modalities as to how these have to be worked out shall be done in
the manner recommended by the Committee. It was submitted by the learned
counsel for the State of Karnataka that the recommendation made about
transfer of buildings and other infrastructure to the Forest Department of the
State Government at book value is not acceptable to it. This is a matter
which can be considered by the Committee on an appropriate motion being
made by the State before it. The modalities to be adopted to effectuate the
order passed by this Court and recommendations of the Committee shall be
worked out by the Ministry of Environment and Forests, the State
Government and the company under the supervision and guidance and
monitoring of the Committee.

Before we part with the case, we note with concern that the State and
the Central Government were not very consistent in their approach about the
period for which the activities can be permitted. Reasons have been
highlighted to justify the somersault. Whatever be the justification, it was
but imperative that due application of mind should have been made before
taking a particular stand and not to change colour like a Chameleon, and that
too not infrequently.

Certain proceedings have been initiated against the company for
alleged violation of various statutes. These proceedings shall be considered
by the respective forums/Courts in their proper perspective, uninfluenced by
any observation made hereinbefore in this judgment.

The Interlocutory application is disposed of accordingly.


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