{"id":219973,"date":"2002-10-30T00:00:00","date_gmt":"2002-10-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-m-chinnappa-t-n-godavarman-vs-union-of-india-and-ors-on-30-october-2002"},"modified":"2016-03-14T05:41:33","modified_gmt":"2016-03-14T00:11:33","slug":"k-m-chinnappa-t-n-godavarman-vs-union-of-india-and-ors-on-30-october-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-m-chinnappa-t-n-godavarman-vs-union-of-india-and-ors-on-30-october-2002","title":{"rendered":"K.M. Chinnappa, T.N. Godavarman … vs Union Of India And Ors on 30 October, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
K.M. Chinnappa, T.N. Godavarman … vs Union Of India And Ors on 30 October, 2002<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Cji, Y.K. Sabharwal, Arijit Pasayat.<\/div>\n
           CASE NO.:\nWrit Petition (civil)  202 of 1995\n\nPETITIONER:\nK.M. CHINNAPPA, T.N. Godavarman Thirumalpad\n\nRESPONDENT:\nUnion of India and Ors.\n\nDATE OF JUDGMENT: 30\/10\/2002\n\nBENCH:\nCJI, Y.K. SABHARWAL & ARIJIT PASAYAT.\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
\tBy destroying nature, environment, man is committing matricide,
\nhaving in a way killed Mother Earth. Technological excellence, growth of
\nindustries, economical gains have led to depletion of natural resources
\nirreversibly. Indifference to the grave consequences, lack of concern and
\nforesight have contributed in large measures to the alarming position. In the
\ncase at hand, the alleged victim is the flora and fauna in and around
\nKudremukh National Park, a part of the Western Ghats. The forests in the
\narea are among 18 internationally recognized “Hotspots” for bio-diversity
\nconservation in the world. The I.A. 670 of 2001 was filed by Sri K.M.
\nChinnappa describing himself as trustee, Wildlife First.\n<\/p>\n
\tThe said I.A. 670 of 2001 is an offshoot of I.A.548 filed by learned
\nAmicus Curiae questioning the correctness of orders issued by the States of
\nKarnataka and Uttar Pradesh respectively which according to him were in
\nviolation of the provisions contained in the Wildlife (Protection) Act, 1972
\n(in short the ‘Act’). By order dated 14.2.2000, operation of any order
\npermitting removal of certain trees from National Parks, Game Sanctuaries
\nand Forests was injuncted.  Subsequently, the word ‘forests’ was deleted.\n<\/p>\n
\tIn the present I.A. learned Amicus Curiae has pointed out that
\nnotwithstanding\t orders passed by this Court on 12.12.1996 and 14.2.2000
\nmining activities were being conducted by Kudremukh Iron Ore Co. Ltd.
\n(hereinafter referred to as a ‘company’) which were in clear violation of
\norders passed by this Court. The main reliefs sought are:
\n“(a) to direct the MoEF to withdraw the illegal “temporary
\nworking permission” issued by it and stop mining activities;\n<\/p>\n
(b) direct KIOCL to stop polluting the Bhadra river due to open
\ncast mining;\n<\/p>\n
(c) take action against KIOCL for illegal encroachment in the
\nforests and for destruction of forests in the Kudremukh National
\nPark; and\n<\/p>\n
(d) to stop KIOCL from laying new slurry pipe line in the
\nforests of the National Park.”\n<\/p>\n
\tOn 10.5.2001, this Court passed an order to the following effect:
\n“Issue notice returnable in the second week of July,
\n2001.Mr. A.D.N. Rao, Advocate accepts notice on behalf
\nof the Union of India. Service be effected on respondent
\nNo. 2 through Mr. S.R. Hedge, A
\ndvocate and on respondent No. 3 by ordinary process and
\nby registered post.\n<\/p>\n
Union of India will file an affidavit within eight weeks
\nand in the affidavit they will also state the reason as to
\nwhy the Government of India having once notified the
\narea as a National Park then permit mining activity to be
\ncarried out notwithstanding this Court’s order of 12th
\nDecember, 1996.”\n<\/p>\n
It was noted that Kudremukh National Park in which mining activities
\nwere being carried out was declared to be a National Park in terms of
\nSection 35(1) of the Act. The matter was referred to the Central Empowered
\nCommittee (in short the ‘Committee’) constituted under Section 3 of the
\nEnvironment (Protection) Act, 1986 (in short the ‘Environment Act’). After
\nhearing the parties and taking note of the materials placed before it the
\nCommittee has recommended as follows:\n<\/p>\n
“After carefully considering all the views and
\nsuggestions, the exceedingly rich biodiversity of the area
\nand investment made by the KIOCL, suggestion made by
\nthe learned Amicus Curiae, the Committee is of the view
\nthat the KIOCL be asked to wind up its operations within
\na period of five years or on the exhaustion of the oxidized
\nweathered secondary ore, whichever is earlier, in the
\nalready broken up area.\t It is clarified that the period of 5
\nyears would commence from 25-7-1999, when its lease
\nhad expired.\n<\/p>\n
\tThe winding up period of five years shall be
\nsubject to the following conditions:\n<\/p>\n
(i)\tthe MoEF should prepare or get a
\nrehabilitation and reclamation and a proper
\neco-restoration plan prepared for the mined
\narea and project impact area through
\nappropriate agency at the cost of KIOCL;\n<\/p>\n
(ii)\tKIOCL shall undertake to make available
\nfunds necessary for implementing for the
\naforesaid plans.  The plans would be
\nimplemented by the agencies selected by the
\nMoEF and under the supervision of the
\nMoEF;\n<\/p>\n
(iii)\ta monetary compensation of Rs.25 crores @
\nRs.5\/- crores per year will have to be
\ndeposited by KIOCL with MoEF in a
\nseparate bank account which would be
\nutilized for the purposes of research,
\nmonitoring and strengthening protection of
\nthe Kudremukh National Park and for other
\nprotected areas in the State of Karnataka;\n<\/p>\n
(iv)\ta Monitoring Committee shall be constituted
\nby the MoEF comprising representative of
\nMoEF, representative of the State of
\nKarnataka, two NGO experts preferably
\nfrom Karnataka, which shall monitor the
\nimplementation of the rehabilitation plans;\n<\/p>\n
and<\/p>\n
(v)\tafter the winding up operations are
\ncomplete, the KIOCL will transfer all the
\nbuildings and other infrastructure to the
\nForest Department of the State of Karnataka
\nat book value.\n<\/p>\n
Transparent guidelines for dealing with development
\nprojects in protected areas as recommended by Learned
\nAmicus Curiae and agreed to by the MoEF in its affidavit
\nfiled by Shri S.C. Sharma, Additional Director General of
\nForests shall be notified within 30 days with the
\nconcurrence of the Central Empowered Committee.”\n<\/p>\n
One of the members of the Committee Shri Valmik Thaper gave a
\ndissenting note. According to him all mining operations must stop
\nimmediately and the five years’ period starting on 25th July, 1999 (on which
\nthe original lease period expired) must be treated as a “Restoration and
\nWinding up period” so that the company can restore all mined lands,  plant
\nindigenous species and protect the region and give back to one of the
\nworld’s finest forests what  has been taken from it. All costs will be met by
\nthe project proponent.\tWhen the matter was taken up, Shri Thaper was
\nrequested  to submit further materials, if any, to justify his dissenting note. A
\nphotographic Report has been submitted.\t The Company has filed its
\nresponse in relation to the Committee’s recommendation and connected
\nreports.\n<\/p>\n
While contending that there was no violation of any law relating to
\nforests and environment certain legal issues were raised by the Company
\nwhich need to be dealt with first. With reference to Rule 24 (B) of the
\nMineral Concession Rules, 1960 (in short the ‘Concession Rules’) framed
\nunder the Mines and Minerals (Regulation and Development) Act, 1957 (in
\nshort the ‘Mines Act’), it was submitted that notwithstanding anything
\nprovided under the Act, Conservation Act or the Environment Act, on an
\napplication being made the lease was to be renewed for twenty years and
\ntherefore, the recommendations made at a point of time for such period were
\nin order. Further, the\tdraft Notification under Section 35(1) of the Act was
\nissued on 2.9.1987 and the final Notification was published on 16th June,
\n2001 under Section 35(4) of the Act, whereby the land under mining was
\nspecifically excluded. In any event, 900 hectares of land was outside the
\nland covered by the Notification.  The Notification dated 29.5.1982 issued
\nunder Section 349 of the Karnataka Municipalities Act, 1964 (in short
\n‘Municipalities Act’) was also relevant.  All these, according to Shri
\nVenugopal, took the land in question outside the purview of the operations
\nof the Act, Conservation Act and the Environment Act.\n<\/p>\n
\tWith reference to the order dated 14.11.2000 passed in W.P.337\/2000,
\nit was submitted that the same was relatable to a stage under Section 35(5)
\nof the Act. Since there was an existing\t legal right to get a renewal,\twhich
\nhad already accrued,  there was no question of any embargo on the renewal
\nof the mining lease. In this background, it was submitted that the State  and
\nthe Central Governments at earlier  points of time had acceded to the request
\nof the company for renewing the lease for twenty years.\t Reference in this
\ncontext was made to a letter dated 6.7.1999 issued by the State Government.
\nIt was pointed out that the company had subsisting contracts with foreign
\nbuyers, and if the lease is not renewed or the mining activities are required to
\nbe abandoned, there shall be large financial implications on account of
\nimpossibility to perform the contracts. It was submitted that for the purpose
\nof renewal, no consent is necessary as an existing right is only to be
\nextended further. In any event, the period as suggested by the Committee
\nshould be reckoned prospectively and not retrospectively and the  two years’
\nperiod already covered by temporary working permit should be reckoned
\nwhile computing the period.  It was pointed out that subsisting contracts with
\nsome foreign countries are operative till 2005 and 2006 and at least adequate
\ntime could be given to fulfill these contracts.\t Learned counsel for the State
\nof Karnataka has submitted that originally it had accepted the proposal for
\nthe longer period, but taking into account the various circumstances, its final
\nstand is that five years period from 24.10.2001 would be adequate, equitable
\nand fair.\n<\/p>\n
\tThe company has taken a stand that it is earning valuable foreign
\nexchange and discontinuous of its business activities would stop earning of
\nvaluable foreign exchange in addition to rendering large number of
\nemployees jobless. It is pointed out that some subsisting contracts are there
\nand in fact there is possibility of extracting 342 million tons of primary ores,
\nin addition to 119 million tons of secondary weathered ores. In fact, the
\ncompany’s request is for permitting activities in some additional areas so
\nthat the primary ores can be extracted and exported in addition to the
\nsecondary weathered ores.\n<\/p>\n
The main thrust of the Company’s plea relating to environmental
\nissues which was highlighted by Shri Venugopal during hearing of the
\napplication was that the Company has taken all possible steps to preserve
\nand conserve nature in its pristine glory. It is eco-friendly as would be
\nevident from the various activities undertaken by it and vast sums of money
\nspent for preservation of nature and environment in addition to efforts to
\nprevent pollution. It has received several awards for its admirable
\nachievements in the field of environmental protection. It was submitted that
\nsustainable development is permissible and is universally accepted
\nphenomenon.  At the time the company was incorporated environment
\nimpact assessment was conducted and detailed guidelines were formulated
\nto see that there was least degradation of the environment. The approach was
\nclearly environmental friendly. The approach in such matters is to see as to
\nwhat prevailed when the project was commenced. There has been a
\nsubstantial change in the approach and if the contemporaneous factual
\nbackdrop is considered, it will be seen that the company’s anxiety was to
\nprotect nature and environment. Further, the various reports submitted by
\nexpert bodies give a lie to the impressions created before the Committee
\nthat there was continued destruction of nature of the flora and fauna by the
\nmining activities undertaken by the company. The reality is otherwise. With
\nreference to a Notification dated 29.5.1982 issued under Section 349 of the
\nMunicipalities Act, it is submitted that the concerned area cannot be a
\ntreated to be a forest land. A reference was also made to a decision in State
\nof Bihar v. Banshi Ram Modi and Ors.<\/a> (1985(3) SCC 643) to contend that
\nthe Act has no application.\n<\/p>\n
Learned Amicus Curiae has pointed out that stands of the company
\nare per se not acceptable. The Committee has granted to the company much
\nmore than what it deserves. With reference to the report of Shri Valmik, it is
\npointed out that the situation is so grave that “hands off situation” has come
\nto play. It is pointed out that the role of the Karnataka State Government and
\nthe Central Government in the Ministry of Environment and Forest  is far
\nfrom satisfactory. Even without any Environment Impact Assessment report,
\nstand was taken for granting 20 years renewal period. There is no
\nconsistency in the stand of the State and the Central Governments  because
\nat one point of time they agreed to renewal period of 20 years and
\nsubsequently turned around to five years period, and then again took
\ninconsistent stands. All these go to show that there is no proper application
\nof mind and without realizing the serious consequences involved,
\nrecommendations are being made. In W.P.337\/2000 by order dated
\n14.11.2000, it was, inter-alia, directed as follows:
\n“……Pending further orders, no de-reservation of
\nforests\/sanctuaries\/national parks shall be effected”.\n<\/p>\n
Action of the State Government in excluding land while issuing Notification
\nunder Section 35(4) of the Act is in clear violation of this Courts’ order.\n<\/p>\n
Banshi Ram’s case on which emphasis was laid by the company is not
\ngood law in view of the subsequent decisions of this Court in Ambica
\nQuarry Works v. State of Gujarat and Ors.<\/a> (1987 (1) SCC 213). Reference
\nmay also made be made to the decisions in Tarun Bharat Sangh, Alwar v.
\nUnion of India and Ors.<\/a> (1992 Supp. (2) SCC 448), Tarun Bharat Sangh,
\nAlwar v. Union of India and Ors.<\/a> ( 1993 Supp. (3) SCC 115) and two
\nreported orders in  T.N. Godavarman Thirumulkpad v. Union of India and
\nOrs.<\/a> (1997 (2) SCC 267) and T.N. Godavarman Thirumulkpad v. Union of
\nIndia and Ors.<\/a> (1997 (3) SCC 312).\tThe stand of the company that
\nNotification dated 29.5.1982 excluded the land in question from being forest
\nland is clearly untenable in view of the Section 2(ii) of the Forest
\n(Conservation) Act, 1980 (in short the ‘Conservation Act’).\n<\/p>\n
\tThe seminal issue involved is whether the approach should be “dollar
\nfriendly” or “eco friendly”.\n<\/p>\n
‘Environment’ is a difficult word to define. Its normal meaning relates
\nto the surroundings, but obviously that is a concept which is relatable to
\nwhatever object it is which is surrounded.  Einstein had once observed, “The
\nenvironment is everything that isn’t me.” About one and half century ago, in
\n1854, as the famous story goes the wise Indian Chief of Seattle replied to the
\noffer of the great White Chief in Washington to buy their land. The reply is
\nprofound.  It is beautiful.  It is timeless.  It contains the wisdom of the ages.
\nIt is the first ever and the most understanding statement on environment.
\nThe whole of it is worth quoting as any extract from it is to destroy its
\nbeauty.\n<\/p>\n
“How can you buy or sell the sky, the warmth of
\nthe land? The idea is strange to us.\n<\/p>\n
If we do not own the freshness of the air and the
\nsparkle of the water, how can you buy them?\n<\/p>\n
Every part of the earth is sacred to my people.\n<\/p>\n
Every shining pine needle, every sandy shore, every mist
\nin the dark woods, every clearing and humming insect is
\nholy in the memory and experience of my people.\t The
\nsap which courses through the trees carries the memories
\nof the red man.\n<\/p>\n
‘the white man’s dead forget the country of their
\nbirth when they go to walk among the stars.  Our dead
\nnever forget this beautiful earth, for it is the mother of the
\nred man.  We are part of the earth and it is part of us.
\nThe perfumed flowers are our sisters; the horse, the great
\neagle, these are our brothers. The rocky crests, the juices
\nin the meadows, the body heat of the pony, and man  all
\nbelong to the same family.’<\/p>\n
So, when the Great Chief in Washington sends
\nword and he wishes to buy our land, he asks much of us.
\nThe Great Chief sends word he will reserve us a place so
\nthat we can live comfortably to ourselves.  He will be our
\nfather and we will be his children. So we will consider
\nyour offer to buy our land.  But it will not be easy.  For
\nthis land is sacred to us.\n<\/p>\n
This shining water moves is the streams and rivers
\nis not just water but the blood of our ancestors. If we sell
\nyou land, you must remember that it is sacred, and you
\nmust teach your children that it is sacred and that each
\nghostly reflection in the clear water of the lakes tells of
\nevents and memories in the life of my people. The
\nwater’s murmur is the voice of my father’s father.\n<\/p>\n
The rivers are our brothers, they quench our thirst.
\nThe rivers carry our canoes, and feed our children.  If we
\nsell you our land you must remember, and teach your
\nchildren, that the rivers are our brothers, and yours and
\nyou must henceforth give the kindness you would give
\nany brother.\n<\/p>\n
We know that the white man does not understand
\nour ways. One portion of land is the same to him as the
\nnext, for he is a stranger who comes in the night and
\ntakes from the land whatever he needs. The earth is not
\nhis brother but his enemy and when he has conquered it,
\nhe moves on.  He leaves his father’s graves behind, and
\nhe does not care.\n<\/p>\n
He kidnaps the earth from his children.\t His
\nfather’s grave and his children’s birthright are forgotten.
\nHe treats his mother, the earth, and his brother, the sky,
\nas things to be bought, plundered, sold like sheep or
\nbright beads.  His appetite will devour the earth and leave
\nbehind only a desert.\n<\/p>\n
I do not know.\tOur ways are different from your
\nways. The sight of your cities pains the eyes of the red
\nman.  But perhaps it is because the red man is a savage
\nand does not understand.\n<\/p>\n
There is no quiet place in the white man’s cities.
\nNo place to hear the unfurling of leaves in spring or the
\nrustle of in insect’s wings.  But perhaps it is because I am
\na savage and do not understand.\t The clatter only seems
\nto insult the ears.  And what is there in life if a man
\ncannot hear the lonely cry of the whippoorwill or the
\narguments of the frogs around a pond at night? I am a red
\nman and do not understand.  The Indian prefers the soft
\nsound of the wind darting over the face of a pond, and the
\nsmell of the wind itself, cleansed by a mid-day rain, or
\nscented with the pinon pine.\n<\/p>\n
The air is precious to the red man, for all things
\nshare the same breath  the beast, the tree, the man, they
\nall share the same breath.  The white man does not seem
\nto notice the air he breathes.\tLike a man lying for many
\ndays, he is numb to the stench. But if we sell you our
\nland, you must remember that the air is precious to us,
\nthat the air shares its spirit with all the life it supports.
\nThe wind that gave our grandfather his first breath also
\nreceives the last sign. And if we sell you our land, you
\nmust keep it apart and sacred as a place where even the
\nwhite man can go to taste the wind that is sweetened by
\nthe meadow’s flowers.\n<\/p>\n
So we will consider your offer to buy our land.\t If
\nwe decide to accept, I will make one condition.\t The
\nwhite man must treat the beasts of this land as his
\nbrothers.\n<\/p>\n
I am a savage and I do not understand any other
\nway.  I have seen thousand rotting buffaloes on the
\nprairie, left by the white man who shot them from a
\npassing train. I am a savage and I do not understand how
\nthe smoking iron horse can be more important than the
\nbuffalo that we kill only to stay alive.\n<\/p>\n
What is man without the beasts? If all the beasts
\nwere gone, man would die from a great loneliness of
\nspirit. For whatever happens to the beasts soon happens
\nto man.\t All things are connected.\n<\/p>\n
You must teach your children that the ground
\nbeneath their feet is the ashes of our grandfathers, so that
\nthey will respect the land.  Tell your children that the
\nearth is rich with the lives of our kin.  Teach your
\nchildren what we have taught our children, that the earth
\nis our mother. Whatever befalls the earth befalls the sons
\nof the earth.  If man spit upon the ground, they spit upon
\nthemselves.\n<\/p>\n
This we know : The earth does not belong to man,
\nman belongs to the earth.  This we know: All things are
\nconnected like the blood which unites one family.  All
\nthings are connected.\n<\/p>\n
Whatever befalls the earth befalls the sons of the
\nearth.\tMan did not wave the web of life; he is merely a
\nstrand in it. Whatever he does to the web he does to
\nhimself.\n<\/p>\n
Even the white man, whose God walks and talks
\nwith him as friend to friend cannot be exempt from the
\ncommon destiny.\t We may be brothers after all.\tWe shall
\nsee.  One thing we know, which the white man may one
\nday discover  our God is the same God. You may think
\nnow that you own him as you wish to own our land; but
\nyou cannot.  He is the God of man, and his compassion is
\nequal for the red man and the white.  This earth is
\nprecious to him, and to harm the earth is to heap
\ncontempt on the creator.  The white too shall pass
\nperhaps sooner than all other tribes.  Contaminate your
\nbed and you will one night suffocate in your own waste.\n<\/p>\n
But in your perishing you will shine brightly, fired
\nby the strength of the God who brought you this land and
\nfor some special purpose gave you dominion over this
\nland and over the red man.  That destiny is a mystery to
\nus, for we do not understand when the wild buffaloes are
\nslaughtered, the wild horses are tamed, the secret corners
\nof the forest heavy with scent of many men and the view
\nof the ripe hills blotted by talking wires. Where is the
\nthicket?  Gone, where is the eagle?  Gone.  The end of
\nliving and the beginning of survival.”\n<\/p>\n
It would be hard to find out such dawn to earth description of nature.
\n“Nature hates monopolies and knows no exception.  It has always some
\nlevelling agency that puts the overbearing, the strong, the rich, the fortunate
\nsubstantially on the same ground with all others” said Zarathustra.
\nEnvironment is polycentric and multi-facet problem affecting the human
\nexistence.  The Stockholm Declaration of United Nations on Human
\nEnvironment, 1972, reads its Principle No.3, inter-alia, thus:
\n“Man has the fundamental right to freedom,
\nequality, and adequate conditions of life. In an
\nenvironment of equality that permits a life of dignity and
\nwell being and bears a solemn responsibility to protect
\nand improve the environment for present and future
\ngenerations.”\n<\/p>\n
The Declaration, ‘therefore, says that’ in the developing countries,
\nmost of the environmental problems are caused by underdevelopments. The
\nDeclaration suggests to safe actions with prudent care for ecological balance.
\nIt is necessary to avoid massive and irreversible harm to the earthly
\nenvironment and strife for achieving present generation and the posterity a
\nbetter life in an environment more in keeping with the needs and hopes.\t In
\nthis context immediately comes to mind the words of Pythogarus who said:
\n“For so long as man continues to be the ruthless
\ndestroyer of lower living beings, he will never know
\nhealth or peace.  For so long as men massacre animals,
\nthey will kill each other. Indeed, they who sow the seeds
\nof murder and pain cannot reap joy and love.”\n<\/p>\n
Article 48-A in Part IV (Directive Principles) of the Constitution of
\nIndia, 1950 brought by the Constitution (42nd Amendment) Act, 1976,
\nenjoins that “State shall endeavour to protect and improve the environment
\nand to safeguard the forests and wild life of the country.” Article 47 further
\nimposes the duty on the State to improve public health as its primary duty.
\nArticle 51-A(g) imposes “a fundamental duty” on every citizen of India to
\nprotect and improve the natural “environment” including forests, lakes,
\nrivers and wild life and to have compassion for living creatures.  The word
\n“environment” is of broad spectrum which brings within its ambit “hygienic
\natmosphere and ecological balance.”  It is, therefore, not only the duty of the
\nState but also the duty of every citizen to maintain hygienic environment.
\nThe State, in particular has duty in that behalf and to shed its extravagant
\nunbridled sovereign power and to forge in its policy to maintain ecological
\nbalance and hygienic environment.  Article 21 protects right to life as a
\nfundamental right.  Enjoyment of life and its attainment including their right
\nto life with human dignity encompasses within its ambit, the protection and
\npreservation of environment, ecological balance free from pollution of air
\nand water, sanitation without which life cannot be enjoyed.  Any contra acts
\nor actions would cause environmental pollution. Therefore, hygienic
\nenvironment is an integral facet of right to healthy life and it would be
\nimpossible to live with human dignity without a humane and healthy
\nenvironment. Environmental protection, therefore, has now become a matter
\nof grave concern for human existence.  Promoting environmental protection
\nimplies maintenance of the environment as a whole comprising the man-
\nmade and the natural environment.  Therefore, there is constitutional
\nimperative on the Central Government, State Governments and bodies like
\nMunicipalities, not only to ensure and safeguard proper environment but also
\nan imperative duty to take adequate measure to promote, protect and
\nimprove the environment man-made and natural environment.\n<\/p>\n
Industrialisation, urbanisation, explosion of population, over-
\nexploitation of resources, depletion of traditional sources of energy and raw
\nmaterials, and the search for new sources of energy and raw materials, the
\ndisruption of natural ecological balances, the destruction of multitude of
\nanimal and plant species for economic reasons and sometimes for no good
\nreason at all are factors which have contributed to environmental
\ndeterioration.\tWhile the scientific and technological progress of man has
\ninvested him with immense power over nature, it has also resulted in the
\nunthinking use of the power, encroaching endlessly on nature. If man is able
\nto transform deserts into oasis, he is also leaving behind deserts in the place
\nof oasis.  In the last century, a great German materialist philosopher warned
\nmankind : “Let us not, however, flatter ourselves over much on account of
\nour human victories over nature.  For each such victory nature takes its
\nrevenge on us.\tEach victory, it is true, in the first place brings about the
\nresults we expected, but in the second and third places it has quite different,
\nunforeseen effects which only too often cancel the first.  Ecologists are of
\nthe opinion that the most important ecological and social problem is the
\nwide spread disappearance all over the world of certain species of living
\norganisms.  Ecologists forecast the extinction of animal and plant species on
\na scale that is incompatibly greater than their extinction over the course of
\nmillions of years.  It is said that over half the species which became extinct
\nover the last 2000 years did so after 1900.  The International Association for
\nthe Protection of Nature and Natural Resources calculates that now, on
\naverage, one species or sub-species is lost every year.\t It is said that
\napproximately 1000 birds and animal species are facing extinction at
\npresent.  It is for this that the environmental questions have become urgent
\nand they have to be properly understood and squarely met by man.  Nature
\nand history are two components of the environment in which we live, move
\nand prove ourselves.  This Court in Sachindanand Pandey and Anr. v. State
\nof West Bengal and Ors. (AIR 1987 SC 1109) and Virender Gaur v. State of
\nHaryana, (1995 AIR SCW 306) has highlighted these aspects.\n<\/p>\n
Environmental law is an instrument to protect and improve the
\nenvironment and to control or prevent any act or omission polluting or likely
\nto pollute the environment. In view of the enormous challenges thrown by
\nthe industrial revolution, the legislatures throughout the world are busy in
\nthis exercise.\tMany have enacted laws long back and they are busy in
\nremodeling the environmental law. The others have moved their law making
\nmachineries in this direction except the under-developed States who have
\nyet to come in this wave length.  India was one of those few countries which
\npaid attention right from the ancient time down to the present age and till
\ndate, the tailoring of the existing law to suit the changing conditions is going
\non.  The problem of law-making and amending is a difficult task in this area.
\nThere are a variety of colours of this problem.\t For example, the industrial
\nrevolution and the evolution of certain cultural and moral values of the
\nhumanity and the rural and urban area developments in agricultural
\ntechnology, waste, barren or industrial belts; developed, developing and
\nunder-developed parts of the lands; the rich and poor Indians; the population
\nexplosion and the industrial implosion; the people’s increasing awareness
\nand the decreasing State Exchequer; the promises in the political manifestos
\nand the State’s development action.  In this whole gamut of the problems the
\nTiwari Committee came out with the date that we have in India “nearly five
\nhundred environmental laws” and the Committee pointed out that no
\nsystematic study had been undertaken to evaluate those legislative
\ndevelopments. Some legal controls and techniques have been adopted by the
\nlegislatures in the field of Indian Environmental Laws.\t Different legislative
\ncontrols right from the ancient time, down to the modern period make
\ninteresting reading. Attention has to be paid to identify the areas of great
\nconcern to the legislature; the techniques adopted to solve those problems;
\nthe pollutants which required continuous exercises; the role of legislature
\nand people’s participation outside.  These are some of many areas which
\nattract the attention in the study of history of the Indian Environmental Law.
\nSince time immemorial, natural objects like rivers enjoyed a high
\nposition in the life of the society.  They were considered as Goddesses
\nhaving not only the purifying capacity but also self-purifying ability.
\nFouling of the water of a river was considered a sin and it attracted
\npunishments of different grades which included, penance, outcasting, fine,
\netc.  The earth or soil also equally had the same importance, and the ancient
\nliterature provided the means to purify the polluted soil.  The above are
\nsome of the many illustrations to support the view that environmental
\npollution was controlled rigidly in the ancient time. It was not an affair
\nlimited to an individual or individuals but the society as a whole accepted its
\nduty to protect the environment.  The ‘dharma’ of environment was to
\nsustain and ensure progress and welfare of all.\t The inner urge of the
\nindividuals to follow the set norms of the society, motivated them to allow
\nthe natural objects to remain in the natural state.  Apart from this motivation,
\nthere was the fear of punishment. There were efforts not just to punish the
\nculprit but to balance the eco-systems. The noteworthy development in this
\nperiod was that each individual knew his duty to protect the environment
\nand he tried to act accordingly.  Those aspects have been highlighted by a
\nlearned author C.M. Jariwala in his article “Changing Dimensions of the
\nIndian Environmental Law” in the book “Law and Environment” by P.
\nLeelakrishnan.\n<\/p>\n
The Economic and Special Council of the United Nations passed a
\nresolution on  30th July, 1968 on the question of convening an International
\nConference on problems of human environment.  In the United Nations
\nConference on Human Environment at Stockholm from 6th to 16th June,
\n1972, proclamation was made on United Nations on Human Environment. It
\nwas stated in the proclamation in these profound words:
\n“Man is both creature and moulder of his
\nenvironment which gives his physical sustenance and
\naffords him the opportunity for intellectual, moral, social
\nand spiritual growth.  In the long and tortuous evolution
\nof the human race on this planet a stage has been reached
\nwhen through the rapid acceleration of science and
\ntechnology, man has acquired the power to transform his
\nenvironment in countless ways and on an unprecedented
\nscale.\tBoth aspects of men’s environment, the natural
\nand the man made, are essential to his well being and to
\nthe enjoyment of basic human rights even the right to life
\nitself.\n<\/p>\n
The protection and improvement of the human
\nenvironment is a major issue which affects the well being
\nof people and economic development throughout the
\nworld, it is the urgent desire of the peoples of the whole
\nworld and the duty of all Governments.”\n<\/p>\n
When the necessity to promote the environment turned grave, doubt
\nwas expressed by some commentators whether the issue of the environment
\nwould last. They have been proved wrong, since it is clearly one of the big
\nissues, perhaps the biggest issue of the 1990s. It is a big issue in political
\nterms, since protection of the environment is high on most people’s priorities
\nfor the 1990s.\tAs a result political parties and Governments are falling over
\neach other in their eagerness to appear green, even if as yet their actions
\nrarely match their rhetoric.  It is big in terms of the size of the problem faced
\nand the solutions required; global warning, the destruction of the ozone
\nlayer, acid rain, deforestation, overpopulation and toxic waste are all global
\nissue which require an appropriately global response.  It is big in terms of
\nthe range of problems and issues  air pollution, water pollution, noise
\npollution, waste disposal radioactivity, pesticides, countryside protection,
\nconservation of wildlife  the list is virtually endless. As observed by Simon
\nBell and Stuart Bell in ‘Environmental Law’ :\n<\/p>\n
“………..In the words of the White Paper on the
\nEnvironment. This Common Inheritance (cm. 1200,
\n1990) the issues range ‘from the street corner to the
\nstratosphere.’\tFinally, it is big in terms of the knowledge
\nand skills required to understand a particular issue. Law
\nis only one element in what is a major cross-disciplinary
\ntopic.\tLawyers need some understanding of the
\nscientific, political and economic processes involved in
\nenvironmental degradation.  Equally all those whose
\nactivities and interests relate to the environment need to
\nacquire an understanding of the structure and content of
\nenvironmental law, since it has a large and increasing
\nrole to play in environmental protection.”\n<\/p>\n
Apart from the direct cost to business of complying with stricter
\nregulatory controls, the potential liabilities for non-compliance are also
\nincreasing. These liabilities fall into five general categories :\n<\/p>\n
(a) Criminal liabilities;\n<\/p>\n
The number of criminal offences for non-compliance with
\nenvironmental legislation is immense, and in recent years the regulation
\nagencies have shown an increased willingness to resort to prosecution.
\nPrivate prosecution is also a possibility.  Fines will be the normal penalty,
\nthough in a number of cases sentences of imprisonment have been imposed
\n(there is normally a potential personal liability for directors and senior
\nmanagers).  Maximum fine levels have risen in recent years, as have actual
\nlevels of fines imposed.\n<\/p>\n
(b) Administrative sanctions :\n<\/p>\n
In most regulatory systems there is a range of options available to the
\nregulator, including variation, suspension or revocation of a licence. Since
\nthese steps may lead to the closure of a plant, they are obviously of great
\nimportance.\n<\/p>\n
(c) Clean up costs :\n<\/p>\n
In most environmental legislation there is a power to clean up after a
\npollution incident and receive the cost from the polluter or (in some cases)
\nthe occupier.\n<\/p>\n
(d) Civil liability :\n<\/p>\n
There is growing interest in the toxic torts, although many of the
\nactions have in fact been around for a long time.  Many environmental
\nactions rest upon strict liability.  Although liability may often be difficult to
\nestablish, the size of claims may be very high indeed.\n<\/p>\n
(e) Adverse publicity :\n<\/p>\n
In practice the publicity attracted as a result of infringements of the
\nlaw may be as costly as any direct costs.\n<\/p>\n
The tide of judicial considerations in environmental litigation in India
\nsymbolizes the anxiety of Courts in finding out appropriate remedies for
\nenvironmental maladies.\t At global level, the right to live is now recognized
\nas a fundamental right to an environment adequate for health and well being
\nof human beings. (See World Commission on Environment and
\nDevelopment – Our Common Future (1987).\t To commemorate the tenth
\nanniversary of the Stockholm Conference, the World Community of States
\nassembled in Nairobi (May 10-18, 1982) to review the action taken on to
\nimplement Stockholm Declaration. It expressed serious concern about the
\nstate of environment world wide and recognized the urgent need of
\nintensifying the effort at the global, regional and national levels to protect
\nand improve it.\n<\/p>\n
Progress and pollution go together.  As this Court observed in M.C.
\nMehta and Anr. v. Union of India and Ors. (AIR<\/a> 1987 SC 965), when
\nscience and technology are increasingly employed in producing goods and
\nservices calculated to improve the quality of life, there is certain element of
\nhazard or risk inherent in the very use of science and technology and it is not
\npossible to totally eliminate such hazard or risk altogether. We can only
\nhope to reduce the element of hazard or risk to the community by taking all
\nnecessary steps for locating such industries in a manner which would pose
\nleast risk of danger to the community and maximizing safety requirements.
\nAs observed in the United Nations Conference held at Stockholm in June,
\n1972, economic and social development was essential for ensuring a
\nfavourable living and working environment for man and for creating
\ncondition on earth that were necessary for the improvement of the quality of
\nlife.\n<\/p>\n
The tragedy of the predicament of the civilized man is that ‘Every
\nsource from which man has increased his power on earth has been used to
\ndiminish the prospects of his successors.  All his progress is being made at
\nthe expense of damage to the environment which he cannot repair and
\ncannot foresee’.  There is increase in awareness of the compelling need to
\nrestore the serious ecological imbalances introduced by the depredations
\ninflicted on nature by man. The state to which the ecological imbalance and
\nthe consequent environmental damage have reached is so alarming that
\nunless immediate, determined and effective steps were taken, the damage
\nmight become irreversible.  In his foreward to International Wild Life Law,
\nM.R.M. Prince Philip the Duke of Edinburgh said :
\n“Many people seem to think that the conservation of
\nnature is simply a matter of being kind to animals and
\nenjoying walks in the country-side.  Sadly, perhaps, it is a
\ngreat deal more complicated than that…………….. As usual
\nwith all legal systems, the crucial requirement is for the
\nterms of the conversions to be widely accepted and
\nrapidly implemented……Regretfully progress in this
\ndirection is proving disastorously slow.” (See
\nInternational Wildlife Law by Simon Lyster, Cambridge,
\nGrotius Publications Ltd. 1985 Edn.)<\/p>\n
The United National General Assembly adopted on October 29, 1982,
\n‘the World Charter for Nature’. The Chapter declares the Awareness that :
\n“(a) Mankind is a part of nature and life depends on the
\nuninterrupted functioning of natural systems which
\nensure the supply of energy and nutrients.\n<\/p>\n
(b) Civilization is rooted in nature, which has shaped
\nhuman culture and influenced all artistic and scientific
\nachievement, and living in harmony with nature gives
\nman the best opportunities for the development of his
\ncreativity, and for rest and recreation.”\n<\/p>\n
Towards the end of his reign, King Asoka in the third century B.C.
\nissued a decree that it has a particularly contemporary ring in the matter of
\npreservation of wild life and environment.  He had written :
\n“Twenty-six years after my coronation, I declare that the
\nfollowing animals were not to be killed, parrots, mynas,
\nthe aruna, ruddy geese, wild geese, the nandimukha,
\ncranes, bats, queen, ants, terrapins, boneless fish,
\nrhinoceroses….. and all quadrupeds which are not useful
\nor edible…..Forest must not be burned.”\n<\/p>\n
To protect and improve the environment is a constitutional mandate.
\nIt is a commitment for a country wedded to the ideas of a welfare State. The
\nworld is under an impenetrable cloud.  In view of enormous challenges
\nthrown by the Industrial revolution, the legislatures throughout the world are
\nbusy in their exercise to find out means to protect the world.\tEvery
\nindividual in the society has a duty to protect the nature.  People worship the
\nobjects of nature.  The trees, water, land and animals had gained important
\npositions in the ancient times. As Manu VIII, page 282 says different
\npunishments were prescribed for causing injuries to plants.  Kautilya went a
\nstep further and fixed the punishment on the basis of importance of the part
\nof the tree.  (See Kautilya III, XIX, 197)<\/p>\n
As observed by this Court in Rural Litigation and Entitlement Kendra
\nv. State of Uttar Pradesh (AIR 1987 SC 359), natural resources have got to
\nbe tapped for the purpose of social development but one cannot forget at the
\nsame time that tapping of resources has to be done with requisite attention
\nand care so that ecology and environment may not be affected in any serious
\nway; there may not be any depletion of water resources and long-term
\nplanning must be undertaken to keep up the national wealth.  It has always to
\nbe remembered that these are permanent assets of mankind and are not
\nintended to be exhausted in one generation.\n<\/p>\n
  The Academy Law Review at pages 137-138 says that a recent
\nsurvey reveals that every day millions of gallons of trade wastes and
\neffluents are discharged into the rivers, steams, lake and sea etc.
\nIndiscriminate water pollution is a problem all over the world but is now
\nacute in densely populated industrial cities.  Our country is no exception to
\nthis.  Air pollution has further added to the intensity and extent of the
\nproblem.  Every year millions of tons of gaseous and particulate pollutants
\nare injected into the atmosphere, both through natural processes and as a
\ndirect result of human activity.  Scientists have pointed out that earth’s
\natmosphere cannot absorb such unlimited amount of pollutant materials
\nwithout undergoing changes which may be of an adverse nature with respect
\nto human welfare.  Man in order to survive in his planetary home will have
\nto strike the harmonious balance with nature.  There may be boundless
\nprogress scientifically which may ultimate lead to destruction of man’s
\nvalued position in life.  The Constitution has laid the foundation of Articles
\n48-A and 51-A for a jurisprudence of environmental protection.\tToday, the
\nState and the citizen are under a fundamental obligation to protect and
\nimprove the environment, including forests, lakes, rivers, wildlife and to
\nhave compassion for living creatures.\n<\/p>\n
A learned Jurist has said, the Rig Veda praises the beauty of the dawn
\n(usha) and worships Nature in all its glory.  And yet today a bath in the
\nYamuna and Ganga is a sin against bodily health, not a salvation for the soul
\n so polluted and noxious are these ‘Holy’ waters now.  “One hospital bed
\nout of four in the world is occupied by a patient who is ill because of
\npolluted water…..Provision of a safe and convenient water supply is the most
\nimportant activity that could be undertaken to improve the health of people
\nliving in rural areas of the developing world.”\t (W.H.O.) “Nature never did
\nbetray. That heart that loved her.” (Wordsworth).  The anxiety to save the
\nenvironment manifested in the Constitution (Forty-Second Amendment)
\nAct, 1976 by the introduction of a specific provision for the first time to
\n“protect and improve” the environment.\tMan is Nature’s best promise and
\nworst enemy. If industry is necessity, pollution inevitable.  Since progress
\nand pollution go together, there can be no end of progress, and consequently,
\nno escape from pollution.  If industry is necessary evil, pollution surest
\nsufferance.  Several enactments have been made to combat pollution.
\n“Pollution” is noun derived from the transitive verb “pollute” which means
\nto make foul or unclean, dirty, to make impure or morally unclean.  In
\nHalsbury’s Laws of England (Forth Edition, Volume 38, para 66)
\n“pollution” means the direct or indirect discharge by man of substances or
\nenergy into the aquatic environment resulting in hazard to human health,
\nharm to living resources and aquatic ecosystems, damage to amenities on
\ninterference with other legitimate use of water.\n<\/p>\n
In Divisional Forest Officer and Ors. v. S. Nageswaramma<\/a>  (1996 (6)
\nSCC 442) it was observed that the renewal of lease is not a vested right of
\nthe lessee. There is a total prohibition against the grant of mining lease in a
\nforest area without concurrence of the Central Government.  As was
\nobserved by this Court in M.C. Mehta v. Kamal Nath and Ors.<\/a> ( 1997 (1)
\nSCC 388), our legal system based on English Common Law includes the
\npublic trust doctrine as part of its jurisprudence. The State is the trustee of all
\nnatural resources which are by nature meant for public use and enjoyment.
\nPublic at large is the beneficiary of the sea-shore, running waters, airs,
\nforests and ecologically fragile lands. The State as a trustee is under a legal
\nduty to protect the natural resources. These resources meant for public use
\ncannot be converted into private ownership.\n<\/p>\n
\tThe aesthetic use and the pristine glory cannot be permitted to
\nbe eroded for private, commercial or any other use unless the courts find it
\nnecessary, in good faith, for public good and in public interest to encroach
\nupon the said resources.\n<\/p>\n
\tIt cannot be disputed that no development is possible without some
\nadverse effect on the ecology and environment, and the projects of public
\nutility cannot be abandoned and it is necessary to adjust the interest of the
\npeople as well as the necessity to maintain the environment. The balance has
\nto be struck between the two interests. Where the commercial venture or
\nenterprise would bring in results which are far more useful for the people,
\ndifficulty of a small number of people has to be bypassed. The comparative
\nhardships  have to be balanced and the convenience and benefit to a larger
\nsection of the people has to get primacy over comparatively lesser hardship.\n<\/p>\n
\tIn this background, the Environment Impact Assessment reports are of
\ngreat importance. The Council on European Economic Committee in their
\ndirective to the member States highlighted objectives of such assessments as
\nfollows:\n<\/p>\n
\t“The effect of a project on the environment must
\nbe assessed in order to take action of the concerns to
\nprotect human health, to contribute by means of a better
\nenvironment to the quality of life, to ensure maintenance
\nof the diversity of species and to maintain the
\nreproductive capacity of the eco-system as a basic
\nresource of life.”\n<\/p>\n
\tA few decisions taken at the Convention on Biological Diversity dated
\n5th June, 1992 would be relevant.\n<\/p>\n
\tThe Preamble, inter-alia, contains the following:
\n\t“Concerned that biological diversity is being
\nsignificantly reduced by certain human activities. Aware
\nof the general lack of information and knowledge
\nregarding biological diversity and of the urgent need to
\ndevelop scientific, technical and institutional capacities to
\nprovide the basic understanding upon which to plan and
\nimplement appropriate measures. Noting that it is vital to
\nanticipate, prevent and attack the causes of significant
\nreduction or loss of biological diversity at source. Noting
\nfurther that the fundamental requirement for the
\nconservation of biological diversity is the in-situ
\nconservation of ecosystems and natural habitats and the
\nmaintenance and recovery of viable populations of
\nspecies in their natural surroundings.”\n<\/p>\n
\tArticles 1, 6, 7 and 14(a) are also important.\n<\/p>\n
Article 1: Objectives-\n<\/p>\n
The objectives of this Convention to be pursued in
\naccordance with its relevant provisions are the
\nconservation of biological diversity, the sustainable use
\nof its components and the fair and equitable sharing of
\nthe benefits arising out of the utilization of genetic
\nresources including by appropriate access to genetic
\nresources and by appropriate transfer of relevant
\ntechnologies, taking into account all rights over those
\nresources and to technologies, and by appropriate
\nfunding.\n<\/p>\n
Article 6: General measures for conservation and
\nsustainable use-\n<\/p>\n
\tEach contracting party shall, in accordance with its
\nparticular conditions and capabilities:\n<\/p>\n
\t(a)\tdevelop national strategies, plans or
\nprogrammes for the conservation and sustainable use of
\nbiological diversity or adopt for this purpose existing
\nstrategies, plans or programmes which shall reflect, inter
\nalia, the measures set out in this Convention relevant to
\nthe contracting party concerned; and<\/p>\n
\t(b)\tintegrate, as far as possible and as
\nappropriate, the conservation and sustainable use of
\nbiological diversity into relevant sectoral or cross-
\nsectoral plans, programmes and policies.\n<\/p>\n
\t\tArticle 7: Identification and Monitoring<\/p>\n
\tEach contracting party shall, as far as possible and
\nas appropriate, in particular for the purposes of Articles 8
\nto 10:\n<\/p>\n
\t(a)\tidentify components of biological diversity
\nimportant for its conservation and sustainable use having
\nregard to the indicative list of categories set down in
\nAnnexure 1;\n<\/p>\n
\t(b)\tMonitor, through sampling and other
\ntechniques, the components of biological diversity
\nidentified pursuant to sub-paragraph (a) above, paying
\nparticular attention to those requiring urgent conservation
\nmeasures and those which offer the greatest potential for
\nsustainable use;\n<\/p>\n
\t(c)\tidentify processes and categories of
\nactivities which have or are likely to have significant
\nadverse impacts on the conservation and sustainable use
\nof biological diversity, and monitor their effects through
\nsampling and other techniques; and<\/p>\n
\t(d)\tmaintain and organize, by any mechanism
\ndata, derived from identification and monitoring
\nactivities pursuant to sub-paragraphs (a), (b) and (c)
\nabove.\n<\/p>\n
Article 14(a): Impact Assessment and Minimizing
\nAdverse Impacts-\n<\/p>\n
\tEach contracting party, as far as possible and as
\nappropriate, shall:\n<\/p>\n
(a)\tintroduce appropriate procedures requiring
\nenvironment impact assessment of its proposed projects
\nthat are likely to have significant adverse effects on
\nbiological diversity with a view to avoiding or
\nminimizing such effects and, where appropriate, allow
\nfor public participation in such procedures.”\n<\/p>\n
\tSustainable development is essentially a policy and strategy for
\ncontinued economic and social development without detriment to the
\nenvironment and natural resources on the quality of which continued activity
\nand further development depend. Therefore, while thinking of the
\ndevelopmental measures the needs of the present and the ability of the future
\nto meet its own needs and requirements have to be kept in view. While
\nthinking of the present, the future should not be forgotten. We owe a duty to
\nfuture generations and for a bright today, bleak tomorrow cannot be
\ncountenanced. We must learn from our  experiences of past to make both the
\npresent and the future brighter. We learn from our experiences, mistakes
\nfrom the past, so that they can be rectified for a better present and the future.
\nIt cannot be lost sight of that while today is yesterday’s tomorrow, it is
\ntomorrow’s yesterday.\n<\/p>\n
\tThe greenery of India should not be allowed to be perished, to be
\nreplaced by deserts.  Euthopia\twhich at a point of time was considered to be
\none of the greenest countries, is virtually a vast desert today.\n<\/p>\n
\tThe Union Government framed National Forest Policy in 1988.
\nThough the basic objectives  are very laudable, it is sad to note that it has
\nvirtually been confined in papers containing it,  and not much has been done
\nto translate them into\treality. Nevertheless, it reflects anxiety of the Union
\nGovernment to protect and preserve natural forests with vast variety of flora
\nand fauna,  representing biological diversity and genetic resources of the
\ncountry.\n<\/p>\n
\tDuty is cast upon the Government under Article 21 of the Constitution
\nof India to protect the environment and the two salutary principles which
\ngovern the law of environment are: (i) the principles of sustainable
\ndevelopment and (ii) the precautionary principle. It needs to be highlighted
\nthat the  Convention on Biological Diversity has been acceded to by our
\ncountry and, therefore, it has to implement the same. As was observed by
\nthis Court in Vishaka and Ors. v. State of Rajasthan and Ors.<\/a> ( 1997 (6) SCC\n<\/p>\n
241), in the absence of any inconsistency between the domestic law and the
\ninternational conventions,  the rule of judicial construction is that regard
\nmust be had to international convention and norms even in construing the
\ndomestic law. It is, therefore,\t necessary for the Government to keep in view
\nthe international obligations while exercising discretionary powers under the
\nConservation Act unless there are compelling reasons to depart therefrom.\n<\/p>\n
\tThe United Nations Conference on Human Environment held in
\nStockholm during June 1972 brought into focus several alarming situations
\nand highlighted the immediate need to take steps to control menace of
\npollution to the Mother Earth, air and of space failing which, the Conference
\ncautioned the mankind, it should be ready to face the disastrous
\nconsequences. The suggestions noted in this Conference were reaffirmed in
\nsuccessive Conference  followed by Earth Summit held at Rio-de Janeiro
\n(Brazil)  in 1992.\n<\/p>\n
\tSo far as the effect of Rule 24B of the Minerals Rules is concerned, it
\nis to be noted that Section 2(ii) of the Conservation Act rules out non-forest
\nactivities. The Section begins with a non-obstante clause providing that
\nnotwithstanding anything contained in any other law for the time being in
\nforce in a State, no State Government or other authority shall make, except
\nwith the prior approval of the Central Government any order of the nature
\nenumerated in the provision. Section 3 of the Conservation Act deals with
\nconstitution of Advisory Committee and Section 4 deals with power to make
\nrules. Rules 4, 5 and 6 of the Forest Conservation Rules, 1981 (in short
\n‘Conservation Rules’) are  relevant. Rule 4 deals with procedure to make
\nproposal by a State Government or their authority. Rule 5 deals with the
\npowers of the Committee to advise on proposals received by the Central
\nGovernment. The Committee referred to therein is the one constituted under
\nSection 3 of the Act. Rule 6 deals with action of the Central Government on
\nthe advise of the Committee. Admittedly, the Central Government has not
\naccorded  the approval for use of any forest land or any portion thereof for
\nbeing used for any non forest purpose. That being so, Rule 29(b) of the
\nMineral Rules cannot be of any assistance to the company. So far as the
\norder dated 14.11.2000 in W.P. 337\/2000 is concerned, it is clear  therefrom
\nthat de-reservation of forests, sanctuaries and national parks\twas prohibited.
\nTherefore, exclusion of company’s land in terms of the Notification under
\nSection 35(4) of the Act though same was being used for mining by the
\ncompany, was not in order to that extent.\n<\/p>\n
\tSo far as the letter dated 6th July, 1999 of the Government of
\nKarnataka is concerned, it does not in any way help the company\t and on the
\ncontrary makes its case more brittle. A few paragraphs of the said letter need
\nto be noted here:\n<\/p>\n
\t\t\t\tx\tx\tx\tx\tx\tx\tx
\n\t“Considering the above and as the present lease
\nwill expire on 24.7.99, the P.C.C.F. has recommended for
\ngrant of temporary working permission to the above
\ncompany to carry out the mining activities for a period of
\n2 years so as to avoid hardship to it, which is a
\nGovernment of India Undertaking. Further, Environment
\nImpact Assessment and studies on impact of mining on
\nflora and fauna in this sensitive area is to be carried out
\nby the reputed Environmental  Institute and Wildlife
\nInstitute respectively that is by Environmental Research
\nInstitute, Nehrunagar, Nagpur (Maharashtra) and Wild
\nLife Institute, Dehradun (Uttar Pradesh). After these
\nstudies are conducted and based on the recommendations
\nto be made by these Institutes to minimize the
\nenvironmental damage it can be decided whether to allow
\nthe mining and renew the lease or otherwise in favour of
\nM\/s. Kudremukh Iron Ore Company Ltd., in this
\nsensitive area of Western Ghat Region.\n<\/p>\n
\t\tx\tx\tx\tx\tx\tx\tx<\/p>\n
\tUnder the circumstances explained above, I am
\ndirected to request you to kindly communicate the
\napproval of Government of India on the following
\nproposals:\n<\/p>\n
(i)\tfor renewal of lease of 1452.74 hectares of
\nforest land which is already broken up in favour of
\nM\/s. Kudremukh Iron Ore Company Ltd for a
\nperiod of 20 years with effect from 25.7.1999.\n<\/p>\n
(ii)\tto grant temporary working permission in
\nthe already broken up area of 1452.74 hectares
\nforest land to the above company to carry out
\nmining activities for a period of 2 years since the
\nlease of forest land will expire on 24.7.1999.”\n<\/p>\n
\tx\tx\tx\tx\tx\tx\tx<\/p>\n
\tIt is an accepted fact that the Environment Impact Assessment Reports
\nof the two named institutes have not been obtained. Therefore, in reality
\nthere was no Environment Impact Assessment report either before\t the State
\nor the Central Government. Further, the request of the State Government
\nwas to grant temporary working permission in respect of already broken up
\narea, pending fulfillment of conditions enumerated.
\n\tComing to plea that in case of a renewal there is no requirement of
\ncompliance of Section 2 of the Conservation Act, the stand is clearly
\nuntenable in view of decisions in Ambica Quarry’s case (supra) and Rural
\nLitigation and Entitlement Kendera v. State of U.P.<\/a> ( AIR 1988 SC 2187)
\nwhere at page 2201 it was observed that ‘whether it is a case of first grant or
\nrenewal following exercise of option by the lessee, the compliance of
\nSection 2 of the Conservation Act is necessary as a condition precedent’. It
\nmay be noted here that the area in question was declared to be a reserved
\narea  in 1960 and in 1987 the Notification under Section 35(1) was issued.\n<\/p>\n
\tIt is of significance that in the present case the Forest Advisory
\nCommittee under the Conservation Act on 11.7.2001  examined the renewal
\nproposal in respect of the company’s mining lease. It recommended that the
\nmining may be allowed for a period of four years i.e. upto the year  2005 by
\nwhich time the weathered secondary ore available in the already broken up
\narea would be exhausted.  The Ministry of Environment and Forests deferred
\na formal decision on the said recommendation as the matter was pending
\nbefore this Court.\n<\/p>\n
\tOn consideration of the materials on record we find no reason to vary
\nthe majority view of the Committee, a statutory one when its findings and
\nconclusions are based on assessments of the factual aspects and after duly
\nconsidering the materials and Reports placed before it by the parties. We
\nhave also taken note of the period indicated by the Forest Advisory
\nCommittee, which is also a statutory Committee.\n<\/p>\n
\tTaking note of the factual background and the legal position
\nhighlighted above, we think it proper to accept the time period fixed by the
\nForest Advisory Committee constituted under Section 3 of the Conservation
\nAct. That means mining should be allowed till the end of 2005 by which
\ntime the weathered secondary ore available in the already broken area should
\nbe exhausted. This is, however, subject to fulfillment of the
\nrecommendations made by the Committee on eco-logical and other aspects.\n<\/p>\n
\tThe modalities as to how these have to be worked out shall be done in
\nthe manner recommended by the Committee. It was submitted by the learned
\ncounsel for the State of Karnataka that the recommendation made about
\ntransfer of buildings and other infrastructure to the Forest Department of the
\nState Government at book value is not acceptable to it. This is a matter
\nwhich can be considered by the Committee on an appropriate motion being
\nmade by the State before it. The modalities to be adopted to effectuate the
\norder passed by this Court and recommendations of the  Committee shall be
\nworked out by the Ministry of Environment and Forests, the State
\nGovernment and the company  under the supervision and guidance and
\nmonitoring of the Committee.\n<\/p>\n
\tBefore we part with the case, we  note with concern that the State and
\nthe Central Government were not very consistent in their approach about the
\nperiod for which the activities can be permitted. Reasons have been
\nhighlighted to justify the somersault. Whatever be the justification, it was
\nbut imperative that due application of mind should have been made before
\ntaking a particular stand and not to change colour like a Chameleon, and that
\ntoo not infrequently.\n<\/p>\n
\tCertain proceedings have been initiated against the company for
\nalleged violation of various statutes. These proceedings shall be considered
\nby the respective forums\/Courts in their proper perspective, uninfluenced by
\nany observation made hereinbefore in this judgment.\n<\/p>\n
\t\tThe Interlocutory application is disposed of accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-219973","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nK.M. Chinnappa, T.N. 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