Q.1(a) What is Environment? What are the objectives of Environment
Protection? Name the components and types on an environment. Ans. Literally,
the expression ―environment‖ connotes surroundings. The environment contains
air, water, food and sunlight etc. According to Section 2(a) of the Indian Environment
(Protection) Act, 1986, the term ―Environment‖ includes water, air and land and
human beings, other living creatures, plants, micro-organism and property.
Objectives of Environment Protection The main objectives of the Environment
Protection are as follows :1. Controlled, restricted and mindful use and exploitation of natural resources ;
2. Maintenance and protection of environmental quality;
3. Protecting and balancing of the eco-system;
4. Achievement of substantial development;
5. Environment awareness among the people;
6. Working out the pollution problems;
7. Environmental education and training; and
8. Punishment of the polluter.
What are the components of “Environment”? ―Environment‖ consists of three
kinds of components, namely :1. Non-living component or Abiotic component;
2. Living component or Biotic component;
3. Energy component.
Types of Environment Broadly, environment can be divided into the following two
types, namely:1. Natural Environment
2. Man-made Environment
Q.1(b) What are the factors responsible for environmental pollution ? Give the
classification of environmental pollution and its remedies available. Ans.
Factors responsible for environmental pollution – There are some important
factors
responsible for causing environmental pollution. These are –
1. Population growth;
2. Indiscriminate use of technology;
3. Uncontrolled use of pollutants;
4. Unmindful exploitation of natural sources;
5. Industrial development
6. Discharge of pollutants into air and water;
7. Improper disposal excreted and waste water;
8. Inadequate management of solid waste;
9. Failure to control noise pollution;
10. Failure in food protection;
11. Failure to check emission of ionizing radiation;
12. Inappropriate management of sound and heat etc.
Environmental pollution and its classification Environment pollution can broadly
be classified into –
(1) Natural pollution; and
(2) Man-made pollution;
1. Natural pollution – Under the category of pollution flood, earthquake, cyclone
and drought are placed. These natural calamities are capable to cause havoc that
may be disastrous.
2. Man-made pollution – This class of environment pollution is caused mainly due
to unmindful human activities. Today, modern industries produce industrial wastes
and toxic gases, which are hazardous to the environment. Also reckless use of forest
wealth is causing deforestation. It has immediate adverse effects on soils and land
which increases the frequency of flood and drought.
Environmental Pollution and its Remedies In the context of India, the remedies
for environmental pollution is of the followings kinds :1. Civil remedies :
2. Criminal remedies;
3. Other remedies.
1. Civil Remedies – The civil remedies for environmental pollution is available in the
nature of compensation or damages to the victim and cost to recover the disturbed
ecological balance or the environment.
2. Criminal remedies – These remedies are available by way of penal
action/punishments.
3. Other remedies – The other remedies for environmental pollution are available as
under :(i) Remedies under Constitutional Law;
(ii) Remedies under Law of Torts;
(iii) Riparian remedies;
(iv) Remedies under the Indian Penal Code, 1860 and Code of Criminal Procedure,
1973;
(v) Remedies under Insurance Laws;
(vi) Remedies under Labour laws;
(vii) Remedies under Wild Life (Protection) Act, 1972
(viii) Remedies under Forests (Conservation) Act, 1980
Q.1(c) Brief note on environmental protection and Public Trust Doctrine? Ans.
Environmental Protection and “Public Trust Doctrine” According to the Supreme
Court ―Doctrine of Public Trust‖ which existed in Roman and English law, has been
incorporated in Indian law. As per this doctrine, natural resources are held by the
―State as ―Trustee‖ of the public. However, natural resources can be disposed of
only in a manner that is consistent with the nature of such a trust. A high decree of
the judicial scrutiny is laid down on any action of the Government that attempts to
restrict the use of natural resources freely available for the public.
The court further said that to properly scrutinize such actions of the Government, the
Courts are required to make distinction between Government‘s general obligation to
act for the public benefit, and the special obligation which it may have as a trustee of
certain public resources. Under the doctrine of public trust certain restrictions are
imposed upon the
Government. In other words, when the public is deprived of the benefit of natural
resources unilaterally the said doctrine would apply. Q.2 What are the main
constitutional provisions regarding Environment Protection, comment, citing
the cases. Ans. Though there is no specific constitutional provision to protect the
environment in general, but the new Part IV-A which consists of only one Article 51A was incorporated by the Constitution (42nd Amendment) Act, 1976. Article 51-A (g)
states that it shall be the duty of every citizen of India to protect and improve the
natural environment including forests, lakes, rivers and wild life, and to have
compassion for living creature. It is to be noted that duties incorporated under Article
51-A (g) of the Constitution are statutory duties and shall be enforceable by law. The
relevant law will provide penalties to be imposed for failure to fulfil those duties and
obligations. The Apex Court in M.C. Mehta (2) v. Union of India, has held that under
Article 51- A(g) it is the duty of the Central Government to introduce compulsory
teaching of lessons at least for one hour in a week on protection and improvement of
natural environment in all the educational institutions of the country. The Apex Court
directed the Central Government to get text books written on that subject and
distribute them to the educational institutions free of cost. It is to be noted that these
duties are the duties of the individual citizens. These fundamental duties are not
enforceable by means of writ of mandamus. Environmental protection and
directive Principles of State Policy. Article 48-A deals with the protection and
improvement of forests and wild life. However, it reads as under. ―48-A.
Protection and improvement of environment and safeguarding of forests and wild life
– The State shall endeavour to protect and improve the environment and to
safeguard the forests and wild life of the country‖. Thus, it requires that State to take
measures to protect and improve the environment and to safeguard the wild life and
forests of the country. The Apex Court in M.C. Mehta v.
Union of India, while relying on Article 48-A of the Constitution directed to the Central
Government and the State Governments and various local bodies and Boards under
various statutes to take appropriate measures for the prevention and control of
pollution of water. Public interest litigation and environment protection – In view
of Article 32 of the Constitution whenever there is a violation of a fundamental right,
any person can approach the Court for an appropriate remedy. Now it can be said
that public interest litigation would be maintainable before the High Court under
Article 226 and before the Supreme Court under Article 32, pertaining to the matter
of environment protection. In the area of water or air pollution or conservation of
forests or cruelty to animal, public interest litigation entertain able is as judicial
approach in India has shown the way for this purpose. In M.C.Mehta v. Union of
India, the victims of the gas leak were heard and successful in claiming damages by
the means of public interest litigation. An another important case of public interest
litigation is M.C. Mehta v.Union of India, where the Supreme Court issued direction
for the enforcement of the Statutory provisions pertaining to the prevention of
nuisance caused by the pollution of the river Ganga. The Supreme Court passed
direction to the Nagar Mahapalika, Kanpur to comply with the statutory obligations
under the Water (Prevention and Control of Pollution) Act, 1974. The public interest
petition in M.C. Mehta v. Union of India, the Supreme Court directed the Central
Government to take steps to spread information and knowledge relating to
environment through audio-visual media. The Supreme Court also passed direction
to introduce environment as a compulsory subject in educational institutions. It is
true that excessive utilization, deflation and detercoation of land are sufficient to
cause ecological imbalance by human acts. In recent past the mechanism of public
interest litigation has seen considerable growth in the field of environmental
protection. Now most of the environmental cases are being filed by the public
spirited citizens through the public interest litigations.
Q.3 Discuss the role of judiciary in controlling the Environmental Pollution.
Explain with the help of decided cases. Or
Relate Judicial Activism with Environmental pollution.
Judicial Activism and Environmental- The judiciary has been assigned the role as
a guardian of the Constitution. They are not expected to sit as a mute spectator and
close their eyes and be uncaring for the problems faced by the society. The powers
of the Supreme Court for the protection of the Constitutional right,human rights and
environmental rights of the people/citizens are of the widest amplitude. It is to be
noted that the judicial activism relating to protection of environment is laudable.
Several pronouncements have been made by the Supreme Court for this purpose. In
view of several judicial decisions of the Supreme Court now the right to get free air,
water, etc. have been included in the guarantee ensued in Article 21 of the
Constitution. The Supreme Court in Re, Bhavani River V. Sakthi Sugars Ltd., took
the serious view in respect of the discharge of objectionable effluents from distillery
in river adjoining areas. It is to be noted that way back in 1980 the Supreme Court in
Municipal Council, Ratlam v. Vardhichand, has held that the human rights calling for
unpolluted environment must be followed and implemented irrespective of financial
constraints. The public nuisance must be checked at war footing as the public
nuisance because of pollutants is a challenge to the social justice component of the
rule of law. During 1998 the Supreme Court issued directions in M.C. Mehta v. Union
of India, for checking vehicular pollution in capital Delhi. In this case the Court
passed the following directions:1. Restriction on plying of commercial vehicles including taxis which are 15
years old, by 2001 October 1998.2. Restriction on plying of goods vehicles
during the day time shall be strictly enforced by 15th August, 1998. 3.
Expansion by pre-mixed oil dispensers (Petrol and 2T oil) shall be undertaken
by 31st December, 1998. 4. Ban on supply of loose 2T oils at petrol
stations.However, in 1999 the Supreme Court modified the aforesaid
directions on the submission of the Transport Commission that banning all
commercial vehicles which were more than 15 years old by October 12, 1998
would result into great hardship to the general public and also to owners of
such vehicle. That steps would be taken to ease pollution assumed by the
Administration. While modifying its earlier order the Supreme Court direction
the commercial vehicles/transport vehicles which are more than 20 years old
shall be phased out and shall not be permitted to ply in the National Capital
Territory, Delhi after 2nd October, 1998. Article 21 of the Constitution and
Environment – The link between the human life and environment is
inherently unbreakable and if the attempt is made to delink directly or
indirectly it would be dangerous not only to human beings but also all
creatures. The Supreme Court repeatedly made it clear that right to life under
Article 21 of the Constitution includes right to pollution free air and water. The
Supreme Court observed that where anything endangers or in pairs that
quality of life in violation of law, a citizen has right to have resource to Article
32, i.e., constitutional remedy before the Supreme Court for removing the
pollution of air or water which may be detrimental to the quality of the life.
Therefore, under Article 226 of the constitution a writ would be maintainable if
there is violation of the environmental right in respect of pollution free air or
water. “Polluter must pay”. – As a ―precautionary principle‖ the Supreme
Court in Vellore Citizens Welfare Forum v. Union of India, propounded the
principles, ―the Precautionary principle‖ that is, ―polluter pays‖ and this
principle has become the law of land as by virtue of Article 141 of the
Constitution, law declared by the Supreme Court is binding on all
courts/agencies, including the State. In M.C.Mehta v. Union of India, the
Supreme Court has held that the direction to convert all buses operating in
Delhi to C.N.G. fuel mode has been given for protecting and safeguarding the
health of the citizens and their right to life and it is covered and protected by
Article 21 of the Constitution, this is being a fundamental right under Part III or
the Constitution. Therefore, it would override the provisions of every statute
including the Motor Vehicles Act. In this case the Court has made clear that
norms laid-down under the Motor Vehicles Act are in addition to and not in
derogation of the requirements of the Environment (Protection) Act, 1986.
The Supreme Court in Intellectuals Forum v. State of A.P., has held that
the Court decision cannot be based solely upon investments made in the
projects which are vulnerable to environmental hazards. The Court observed
that criticism of the environmental activists that the said projects are not
condemned by the Court as judges are carried away by money spent on such
projects, is basless. The Supreme Court said that in several cases the Court
issued directions and ensured their enforcement by nothing short of the
demolition or restoration of status quo-ante, without being convinced by the
fact that crores of rupees were already spent on development projects. The
Supreme Court in Murli S. Deora v. Union of India, has held that fundamental
rights guaranteed under Article 21, inter alia, provides that none shall be
deprived of his life without due process of law. In the instant case the
Supreme Court while, considering the adverse effect of smoking in public
places, passed the order banning the smoking in public places till statutory
provision is made and implemented by legislative enactment. The Supreme
Court has prohibited the smoking in public places and issued directions to the
Central Government, State Governments including the Union Territories to
take appropriate measure to ensure that prohibition of smoking in public
places is implemented. Q. 4 What are the remedies under Cr. P.C, relating
to protection of Environment? (Sec – 133 Cr. P.C.) Ans. The Code of
Criminal Procedure, 1973 (Section 133 to Section 143) deals with the subject
concerning environment protection. Section 133 of the Code of Criminal
Procedure, 1973 deals with cases of public nuisance, wherein the Magistrate
is empowered to pass conditional order for removal of public nuisance. There
are certain categories of cases which can be redressed under Section 233 of
the Code, these are the following:- 1. The unlawful nuisance or obstruction to
any way, river or channel, lawfully used by the public or to a public place. 2.
The construction of any building or the disposal of any substance as is likely
to occasion explosion or conflagration. 3. The conduct of any trade or
occupation, or the keeping of any goods or merchandise, injurious to health
or physical comfort of the community.
4. An unfenced tank, well or excavation near a public way or place. 5. A building,
tent and structure, or a tree as is likely to fall and cause injury to persons. 6. A
dangerous animal requiring destruction, confinement or disposal. By virtue of
Section 133 of the Code of Criminal Procedure, 1973 the Magistrate is
empowered to exercise its powers on receipt of a police report or other report if
any of the circumstances is existing as cited above. Before passing a conditional
order; a Magistrate is bound to take evidence, because the proceedings are
entirely exparte. But, the Magistrate is bound to pass speaking order under this
section. It is to be noted, that the proceedings under Section 133 of the Code are
summary in nature and it cannot be kept pending for a long time. It is well settled
legal position that the proceedings under Section 133 of the Code should be
taken in case of emergency where the public shall be put to great inconvenience
and shall suffer an irreparable injury if the encroachment or nuisance is not
removed at once by adopting the summary procedure. Ordinarily, Section 133 of
the Code cannot be invoked where the obstruction or nuisance has been in
existence for a long period but there is no legal bar to action being taken in such
circumstances if there exists genuine emergency to get encroachment or
nuisance removed under Section 133 of the Code. In the interest of justice and
fair play it is required that while exercising power under Section 133 of the Code,
the Magistrate should examine the local people about physical discomfort or
health hazard on account of ‗Khatal‘. However, failure on the part of Magistrate
to carry out such endeavour would make his order illegal under Section133 of the
Code. Scope of Section 133.- The Apex Court had an occasion to consider the
scope and applicability of Section 133 of the Code of the Code of Criminal
Procedure, 1973 in case of Municipal Council, Ratlam v. Vardhichand & others,
according to the Court, where there existed a public nuisance in a locality due to
open drain, heaps of dirt, pits and public excretions by human for want of
lavatories and consequential breeding of mosquitoes, the Court may require the
municipality under Section 133 of the Code and in view of Section 123 of the
Municipalities Act to abate the nuisance by taking affirmative action on a time
bound basis. When such an order was given, the Municipality cannot take the
plea that financial inability validity exonerated it from statutory liability. The Apex
Court further held that the Code of Criminal in their coffers, even as human rights
under Part III of the Constitution of India, 1950 have to be respected by the State
regardless of budgetary provision. Explanation added to Section 133 of the Code
of Criminal Procedure, 1973 states that a ―public place‖ includes also property
belonging to the State, camping grounds and grounds left unoccupied for
sanitary or recreative purposes. It does not mean all places belonging to the
State/Government. In Kachrulal Bhagirath Agrawal & others v. State of
Maharashtra. The Court clarified that Section 133 of Cr. P.C. does not deal with
all potential nuisance but only applies when the nuisance is in existence. Section
133 of the Code of Criminal Procedure, 1973 also deals with occupations or
trades which are in themselves injurious to health and has nothing whatever to
do with trades which in themselves are not harmful but in course of which a
public nuisance might be committed. It is duty of the court to direct removal of
obstruction within a specified time. The provisions contained under Section 133
of the Code of Criminal Procedure, 1973 do not take away the revisional
jurisdiction of the High Court. Notification of order under Section 133. –
According to Section 134(1) of the Code of Criminal Procedure, 1973 the order
passed under Section 133 of the said Code, if practicable, be served on the
person against whom it is made, in the manner provided for service of a
summons. However, if such order cannot be served, it shall be notified by
proclamation, published in such manner as the State Government may, by rules,
direct and a copy thereof shall be stuck up at such place or places as may be
fittest for conveying the information to such person. Two alternatives are open
to a person – In terms of Section 135 of the Code of Criminal Procedure, 1973
there are two alternatives to a person who is served with notice as provided
under Section 134 of the said Code. At first, that person may perform, within the
time and in the manner specified in the order or secondly, he may prefer to
appear in terms of the order and show cause against it. Section 137 of the Code
of Criminal Procedure deals with the procedure where existence of public right is
denied. The evidence adduced under Section 137 of the Code should be legally
admissible evidence. If the conditions laid down in Section 137 have been
complied with, the Magistrate cannot proceed further and must stay the
proceedings until the matter of existence of public right has been adjudicated by
a Court having jurisdiction. It is clear that the provision contained in Section 137
are mandatory in nature. The issue whether the provisions of the Air Act, 1981
operate to impliedly repeal the provisions of Section 133 of the Code of Criminal
Procedure, 1973. It is submitted that divergent view expressed by the High Court
would show that the Air Act, 1981 and Water Act, 1974 are special legislations to
curb the pollution menace while adopting relevant scientific approach through
legislations, whereas Section 133 of the Code which deals with the public
nuisance as am emergent measure while providing injunctive relief to the victim.
Section 138 of the Code of Criminal Procedure, 1973 provides the Procedures
where a person appears to show cause against the order. By virtue of Section
139 of the Code the Magistrate may order to conduct local investigation rather
spot investigation and may examine the expert, in other words Magistrate may
seek expert‘s opinion while deciding the matter of public nuisance/public right
under the Code. A conditional order made under Section 133 of the Code of
Criminal Procedure cannot be questioned by a civil suit, however there is no
such ban in respect of an absolute order Section 141 of the said Code deals with
the procedure on order being made absolute and consequences of disobedience.
Section 142 of the Code makes provision to prevent imminent injury or danger of
a serious kind to the public. According to Section 143 of the Code of Criminal
Procedure, 1973 a District Magistrate or Sub-Divisional Magistrate or any other
Executive Magistrate empowered by the State Government or the District
Magistrate, may order any person not to repeat or continue a public nuisance, as
defined in the Indian Penal Code, or any special or local law. Q.5 What
remedies are provided to compensate the victim under Torts? Ans.
According to Salmond ―A tort is a civil wrong for which the remedy in common
law is action for unliquidated damages, and which is not exclusively the breach of
a contract or the trust or the breach of the merely equitable obligations. The
Supreme Court observed that in such cases, compensation must be co-related to
the magnitude and financial capacity of the industry as such exemplary
damages/compensation must have a deterrent effect. It is settled position that an
injunction is a judicial process whereby a person who has violated or is likely to
violate the legal rights of another person, is restrained to carry-out such acts.
Under the law of tort the environmental pollutions cases can be adjudicated on
the following grounds- (i) Nuisance; (ii) Negligence; (iii) Strict liability; and (iv)
Absolute liability. A nuisance is an unlawful interference with the plaintiff‘s use or
enjoyment of land. To obtain the favorable order from the Court the plaintiff must
prove that some injury to his enjoyment of property is interfered with, by the
defendant. Kinds of Nuisance- There are two types of nuisance. These are:- 1.
Public Nuisance: 2. Private Nuisance. 1. Public Nuisance. A public or common
nuisance is an injury, damages or annoyance to the public generally and an
offence against public rights, safety and convenience. Any nuisance is public
which materially affects the reasonable comfort and convenience of life of a class
of subject. The remedies for a public nuisance are:- (i) A criminal prosecution for
the offence of causing a public nuisance.(ii) A criminal proceeding before a
Magistrate for removing a public nuisance. (iii) A civil action by the Advocate
General or by two or more members of the public with permission of the Court for
a declaration, an injunction, or both. 2. Private nuisance- For an action for
private nuisance the plaintiff may seek injunctive relief as well as damages. Test
to determine nuisance.- There are three essential ingredients of nuisance.
These are :- 1. Unlawful interference; 2. Interference with the use or enjoyment of
land; 3. damage (II) Negligence To prevent environmental pollution, a common
law action for negligence may be initiated. In action for negligence the plaintiff is
required to show the following:- (i) The defendant was under legal duty to take
reasonable care to avoid damage complained of; (ii) There was breach of legal
duty casts upon the defendant; and (iii) The breach of duty caused the damage
to the plaintiff. (III) Strict Liability The rule of strict liability was propounded by
the House of Lords in Rylands V. Fletcher. This rule is that a person who, in the
course of non-natural use of his land is or is deemed to be, responsible for the
accumulation on it of anything likely to do harm, if it escapes, is liable for the
interference with the use of the land of another which results from the escape at
the thing from his land. But,‖ strict liability‖ is subject to a number of exception
that considerably reduce the scope of its operation. These exceptions are- (1)
Natural use of thing; (2) Act of God; (natural disaster such as an earthquake or
flood etc.); (3) The act of a third party; (e.g. sabotage); (4) The plaintiff‘s own
fault; (5) Consent of plaintiff; (6) Mistake of plaintiff; and (7) Statutory authority.
(iv) Absolute Liability The concept of absolute liability is based on the principle
of no fault liability. In India the concept of absolute liability was originated from
the Shriram Gas Leak case. This case was the genesis of the environmentalist
and Supreme Court lawyer Mr. M.C. Mehta, who by mean of writ petition as a
public interest litigation sought the closure and shifting of Shriram‘s Caustice
Chlorine and Sulphuric acid plants which were located in a thickly populated part
of Delhi. It is submitted if industrial accident took place on account of dangerous
or hazardous activity, the enterprise involved in such activity is liable to
compensate the persons affected by such industrial accident. It is immaterial to
examine, who committed negligence. Vicarious Liability and Environment The
liability which arises because of one person‘s relationship to another is called
vicarious liability. Section 17 of the Environment (Protection) Act, 1986 deals with
the offences committed by the Government department. This says if the
environmental offences are committed by the Government department the head
of such department would be liable for the offence and he shall be deemed guilty
of that offence. However, he may plead that the offence was committed without is
knowledge or he exercised due diligence to prevent the commission of offence
and that offence is not attributable to any neglect on his part. Q.6(a) What are
Protected forests? How to regulate matters of protected forests? Ans.
According to Sec.29 of the Indian Forest Act, 1927 Protected forests – (1) The
State Government may, by notification in the official Gazette, declare the
provisions of this Chapter applicable to any forest-land or waste-land which is not
included in a reserved forest but which is the property of Government, or over
which the Government has proprietary rights, or to the whole or any part of the
forest-produced of which the Government is entitled. (2) The forest-land and
waste-land comprised in any such notification shall be called a ―protected
forest‖. (3) No such notification shall be made unless the nature and extent of the
rights of Government and of private persons in or over the forest-land or wasteland comprised therein have been inquired into and recorded at a survey or
settlement, or in such other manner as the State Government thinks sufficient.
Every such record shall be presumed to be correct until the contrary is proved:
Provided that, if in the case of any forest-land or waste-land, the State
Government thinks that such inquiry and record the necessary, but that they will
occupy such length of time as in the meantime to endanger the rights of
Government, the State Government may, pending such inquiry and record,
declare such land to be a protected forest, but so as not to abridge or affect any
existing rights of individuals or communities. Possession could not pass to the
Government by mere fact of publication of notification – The Patna High
Court in M/s Jetmal Bhojraj v. State of Bihar,2 has held that under Section 29(2),
the forest and waste lands are to be called protected forest. There is no provision
in Chapter IV for transfer of possession over any property to the Government,
Legally, therefore possession could not pass to Government by mere fact of
publication of notification. Section 30 deals with the power to issue notification
reserving trees, closing of forest for such term, not exceeding 30 years of prohibit
the querying of stone, of the burning of lime or charcoal or collection/removal of
forest produce in a protected forest. Thus State government is fully competent to
prohibit or regulate any such activities in a protected forests which are likely to
damage or disturb the forest wealth. .6(b) State the power of the Government
to make rules for protected forests. Ans. Power to make rules for protected
forests - Section 32 gives power to the State Government to make rules to
regulate the protected forests in the following matters, namely :- 1. Collection,
manufacture and removal of forest produce from the protected forests. 2. Cutting,
sawing, conversion and removal of trees and timber from the protected forests. 3.
Granting of licences for felling or removing of trees/timber from such forests. 4.
Payment for removal/collection of felling tress/timber. 5. Examinatioin of forest
produce to be carried away. 6. Clearing and breaking up land in the protected
forests. 7. Measures for forest fire. 8. Cutting of grass and pasturing of cattle in
such forests. 9. Measures for protection and preservation of the elephants under
the Elephants ‗Preservation Act, 1979. 10. Hunting, shooting, fishing, poisoning
water and setting traps. The Allahabad High Court in Dayashankar Singh v.
Conservator of Forest,1 was held that the conservator of forest, who is a public
authority acting on behalf of the Government, is required to act in a reasonable
manner. While exercising his powers under the standing orders in matters
relating to grant of extension of period of licence, he cannot act arbitrarily at his
own sweet will like a private individual, instead he must act in conformity with the
constitution and the principles laid down in the standing orders in a manner which
may withstand the test of reasonableness. Any departure with the principle of
reason or equality would vitiate the order. Q.7 a) Mention the constitution of
National Board under Sec-5A of Wild Life Protection Act, 1972? b) What are
the functions of the National Board? c) Give the duties of Wild Life
Advisory Board. Ans.(a)Section 5(2) of the Wild Life (Protection) Act, 1972
gives power to the concerned authority to delegate his powers to any of his
subordinate officers. According to Section 5-A(I) of the Act, the Prime Minister
and Minister in-charge of Forests and Wild Life shall be the Chairperson, Vicechairperson of the National Board for Wild Life respectively and other members
shall be such as provided in the said section. However, they are ex-officio
members of the Board. Section 5-A(3) makes it clear that members, except ‗exofficio‘ members shall be entitled to receive such allowances on account of
performance of the duties as provided therein. The office of a member of the
National Board for Wild Life shall Board for Wild Life shall not be deemed to be
office of profit. Section 5-B makes provisions for constitution of the Standing
Committee of the National Board and this Committee shall perform such
functions as may be prescribed by the National Board for Wild Life. (b) Function
of the National Board –(1) It shall be the duty of the National Board to promote
the conservation and development of wild life and forests by such measures as it
thinks fit. (2) Without prejudice to the generality of the foregoing provision, the
measures referred to therein may provide for - (a) framing policies and advising
the Central Government and the State Governments on the ways and means of
promoting wild life conservation and effectively controlling poaching and illegal
trade of wild life and its products ; (b) making recommendations on the setting up
of the management of national parks, sanctuaries and other protected areas and
on matters relating to restriction of activities in those areas; (c) preparing and
publishing a status report at least once in two years on wild life in the country. (c)
Section 6 (As Amended) imposes duty upon the State Government to constitute
the State Board for Wild Life within a period of six months from the date of
commencement of the Wild Life (Protection) Amendment Act, 2002. The Chief
Minister of the State and in case of Union territories, the Administrator shall be
the Chairperson of the State Board for Wild Life, the Minister in-charge of Forests
and Wild Life shall be the Vice-Chairperson and other members of the State
Board shall be ex-officio. Q.8 Explain the rules to regulate Environment
Pollution under Environment Protection Act, 1986. Explain with decided
cases. Ans. Section 6 of the Environment (Protection) Act, 1986 give specific
powers to the Central Government to make rules in respect of all or any of the
matters referred to in Section 3 specifically in respect of— (i) The standards of
quality of air, water or soil for various areas; (ii) Limit of concentration of various
environmental pollutants, including noise; (iii) the procedure and safeguards for
the handling of hazardous substances. (iv) prohibition on handling of hazardous
substances. In V.Lakshmipathy v. State of Karnataka, the Karnataka High Court
directed the operation of industrial units in land earmarked as residential area in
the development plan to be stopped which were being established in gross
violation of held that where due to human negligence the quality of air or
environment are threatened the Court would not hesitate to use its innovative
powers within its epistolary jurisdiction to enforce and safeguard the right to life
and promote public interest. Since the right to life inherent in Article 21 of the
Constitution of India contemplates qualitative life which is possible only in an
environment of quality. The Andhra Pradesh High Court in K.Purushottam Reddy
& Anolther v. Union of India, observed as under :- (i) there cannot be any doubt
whatsoever that possessing of hazardous substance without taking adequate
care and precaution would not only give rise to ecological problem but may
seriously affect the quality of potable water. In this situation, strict compliance of
the Rules would be the necessity of the day. (ii) Having regard to the facts and
circumstances of the present case particularly in view of the fact that thousand of
litres of such waste lubricant and recycled for its reuse, it is necessary that all
authorities including the A.P. State Pollution Control Board must strictly comply
with the provisions of the said rules. The Court directs accordingly. The Court
further directs that in the event of any person who is found to be unauthorized for
handling such hazardous waste products and/or if any person authorized there
for violates any of the terms and conditions or directions or any law operating in
the field, the State Pollution Control Board should take strict view of the matter
and shall take steps for cancellation of their authorization in terms of the statutory
rules. Q.9 Mention the powers of Central Govt. to take measures to protect
and improve environment under Environment Protection Act, 1986. Ans.
Under Sec-3. Power of Central Government to take measures to protect and
improve environment – (1) Subject to the provisions of this Act, the Central
Government shall have the power to take all such measures as it deems
necessary or expedient for the purpose of protecting and improving the quality of
the environment and preventing, controlling and abating environmental pollution.
(2) In particular, and without prejudice to the generality of the provisions of subsection (1), such measures may include measures with respect to all or any of
the following matters, namely :- (i) Co-ordination of action by the State
Governments, officer and other authorities- (a) Under this Act, or the rules made
there under ; or (b) Under any other law for the time being in force which is
relatable to the objects of this act; (ii) Planning and execution of a nation-wide
programme for the prevention, control and abatement of environmental pollution;
(iii) Laying down standards for the quality of environment in its various aspects;
(iv) Laying down standards for emission or discharge of environmental pollutants
from various sources whatsoever; Provided that different standards for emission
or discharge may be laid down under this clause from different sources having
regard to the quality or composition of the emission or discharge of
environmental pollutants from each sources; (v) Restriction of areas in which any
industries, operations or processes or class of industries, operations or
processes or class of industries, operations or processes shall not be carried out
or shall be carried out subject to certain safeguards; (vi) Laying down procedures
and safeguards for he prevention of accidents which may cause environmental
pollution and remedial measures for such accidents; (vii) Examination of such
manufacturing processes, materials and substances as are likely to cause
environmental pollution; (viii) Carrying out and sponsoring investigations and
research relating to problems of environmental pollution; (ix) Inspection of any
premises, plant, equipment, machinery, manufacturing or other processes,
materials or substances and giving, by order, or such directions to such
authorities, officers or persons as it may consider necessary to take steps for the
prevention, control and abatement of environmental pollution;
(x) Establishment or recognition of environmental laboratories and institutes to carry
out the functions entrusted to such environmental laboratories and institutes under
this Act.
(xi) Collection and dissemination of information in respect of matters relating to
environmental pollution;
(xii) Preparation of manuals, codes of guides relating to the prevention, control and
abatement of environmental pollution;
(xiii) Preparation of manuals, codes or guides relating to the prevention, control and
abatement of environmental pollution;
(xiv) Such other matters as the Central Government deems necessary or expedient
for the purpose of securing the effective implementation of the provisions of this Act.
(3) The Central Government may, if it considers it necessary or expedient so to do
for the purposes of this Act, by order, published in the Official Gazette, constitute an
authority or authorities by such name or names as may be specified in the order for
the purpose of exercising and performing such of the powers and functions
(including the power to issue directions under Section 5) of the Central Government
under this Act and for taking measures with respect to such of the matters referred to
in sub-section (2) as may be mentioned in the order and subject to the supervision
and control of the Central Government and the provisions of such order, such
authority or authorities may exercise the powers or perform the function or take the
measures so mentioned in the order as if such authority or authorities had been
empowered by this Act to exercise those powers or perform those functions or take
such measures. Information films about environmental protection. – In
M.C.Mehta v. Union of India and others.2 through a public interest litigation under
Article 32 of the Constitution of India. 1950 a petition was filed seeking for issuing
appropriate directions to cinema and exhibition halls to exhibit slides containing
information and messages on environment free of cost, for spreading information
about environment in national and regional languages and for broadcasting about it
on the All India Radio and on the National Channel (Television) in regular and short
term programme. The petitioner also prayed that the environment should be made a
compulsory subject in the schools and colleges in a graded system for a general
awareness in respect of environment. The Supreme Court observed as follows :―we are in a democratic polity where dissemination of information is the foundation
of the system. Keeping the citizens informed is an obligation of the Government. It is
equally the responsibility of the society to adequately educate every component of it
so that the social level is kept up. We, therefore accept in principle, the prayers
made by the petitioner‖. The writ petition was disposed of by making the following
directions –
1. The Central Government shall issue appropriate directions to the State
Governments and Union Territories to invariably enforce as a condition of licences of
all cinema halls, touring cinemas and video parlours to exhibit free of cost at least
two slides messages on environment in each show undertaken by them. The
Ministry of Environment should, within two months from now, come out with
appropriate slide material.
2. The Ministry of Information and Broadcasting of the Government of India should,
without delay, start producing of information films of short duration as is being done
now on various aspects of environment pollution bringing out benefits for
society on the environment being protected and the hazards involved if the
environment is not protected.
Regarding the publicity about environmental protection, the Supreme Court clarified
that :- ―We do not want to project an impression that we are authorities on the
subject but we would suggest to the programme controlling authorities of the
Doordarshan and All India Radio to take proper steps to make interesting
programmes and broadcast the same on the radio and exhibit the same on the
television.‖ It is submitted that in democratic set up it is desirable on the part of
Government to discharge its constitutional obligation by practicing dissemination of
information regarding environment protection. Taj Trapezium Pollution case – The
Supreme Court in M.C. Mehta v. Union of India and Others,3 ordered the closure of
brick kilns within 20 Km. radius distance of Taj Mahal with Cettain directions. This
case is popularly known as ―Taj Trapezium Pollution‖. The Hon‘ble Supreme Court
directed as under :- ―(1) All licensed brick kilns within 20 km. radial distance of Taj
Mahal and other significant monuments in Taj Trapezium and Bharatpur Bird
Sanctuary shall be closed and stop operating w.e.f. 15-8-1996. We direct the State
of U.P. to render all possible assistance to the licensed brick kiln-owners in the
process of relocation beyond Taj Trapezium, if the owners so desire. The closure
order is, however, unconditional. (2) We direct the District Magistrate and the
Superintendent of Police concerned to close all unlicensed and unauthorized brick
kilns operating in the Taj Trapezium with immediate effect. The U.P.Pollution Control
Board (Board) shall file a compliance report within two months. (3) No new licences
shall be issued for the establishment of brick kilns within 20 km. radial distance from
Taj Mahal, other monuments in Taj Trapezium and Bharatpur Bird Sanctuary.
The victims of pollution are entitled to compensation –The Patna High Court in
Rajiv Ranjan Singh alies Lallan Singh v. State of Bihar and Others.3 has held that
where it comes to light that any person has contacted any ailment the cause of
which can be directly related to the effluent discharge of the distillery, the company
shall have to bear all expenses of his treatment and the question of awarding
suitable compensation to the victim may also be considered. Badkal Lake and
Suraj Kund – Mining activity to be banned – In M.C. Mehta v. Union of India,4 the
explosives were used for mining operation on Badkal Lake, Suraj Kund and also
Aravalli hills. Evidently there was unscientific mining activity resulting in materials
lying haphazardly. It was held by the Supreme Court that since Haryana
Government banned mining operation within a radius of 5 Kms. Of Badkal Lake,
Suraj Kund the objections against recommendations of stoppage of mining
operations filed by the mining operators was not sustainable, therefore, stoppage of
mining activity was wholly justified. Q.10 Discuss the powers given to State Board
under Water Prevention and control of Pollution Act, 1974 ? Ans. The functions
of a State Board shall be – (a)
(a) to plan a comprehensive programme for the prevention, control or abatement of
pollution of streams and wells in the State and to secure the execution thereof;
(b) to advise the State Government on any matter concerning the prevention, control
or abatement of water pollution;
(c) to collect and disseminate information relating to water pollution and the
prevention, control or abatement thereof;
(d) to encourage, conduct and participate in investigations and research relating to
problems of water pollution and prevention, control or abatement of water pollution ;
(e) to collaborate with the Central Board in organizing the training of persons
engaged or to be engaged in programmes relating to prevention, control or
abatement of water pollution and to organize mass education programmes relating
thereto;
(f) to inspect sewage or trade effluents, works and plants for the treatment of sewage
and trade effluents and to review plans, specifications or other data relating to plants
set up for the treatment of water, works for the purification thereof and the system of
the disposal of
sewage or trade affluents or in connection with the grant of any consent as required
by this Act;
(g) to lay down, modify or annual effluent standards for the sewage and trade
eeluents and for the quality of receiving waters (not being water in an inter-State
stream) resulting from the discharge of effluents and to classify waters of the State;
(h) to evolve economical and reliable methods of treatment of sewage and trade
effluents, having regard to the peculiar conditions of soils, climate and water
resources of different regions and more especially the prevailing flow characteristics
of water in streams and wells which render it impossible to attain even the minimum
degree of dilution;
(i) to evolve methods of utilization of sewage and suitable trade effluents in
agriculture;
(j) to evolve efficient methods of disposal of sewage and trade effluents on land, as
are necessary on account of the predominant conditions of scant stream flows that
do not provide for major part of the year the minimum degree of dilution;
(k) to lay down standards of treatment of sewage and trade effluents to be discharge
into any particular stream taking into account the minimum fair weather dilution
available in that stream and the tolerance limits of pollution permissible in the water
of the stream, after the discharge of such effluents;
(l) to make, vary or revoke any order –
(i) for the prevention, control or abatement of discharges of waste into streans ir
wells;‘
(ii) requiring any person concerned to construct new systems for the disposal of
sewage and trade effluents or to modify, alter or extend any such existing system or
to adopt such remedial measures as are necessary to prevent control or abate water
pollution;
(m) to lay down effluent standards to be complied with by persons while causing
discharge or sewage or sullage or both and to lay down, modify or annual effluent
standards for the sewage and trade effluents;
(n) to advise the State Government with respect to the location of any industry the
carrying on of which is likely to pollute a stream or well;
(o) To perform such other functions as may be prescribed or as may, from time to
time, be entrusted to it by the Central Board or the State Government. (2) The
Board may establish or recognize a laboratory or laboratories to enable the Board to
perform its functions under this section efficiently, including the analysis of samples
of water from any stream or well or of samples of any sewage or trade effluents. In
M.C. Mehta v.Union of India, the Supreme Court has held that tanneries discharge
effluents in Ganga not setting up primary treatment plant in spite of being asked for
several years, not appearing in spite of notice, cannot be permitted to be in
existence for adverse effect on public at large. According to Section 18 of the Water
(Prevention and control of Pollution) Act, 1974 in the performance of its functions. A
State Board shall be bound by directions of the State Government, Subject to such
contingencies as are enumerated in Section 18(2) and 18(3) of the said Act. Section
19 of the Act provides that if the State Government is of the opinion that the
provisions of the Act need not apply to the entire State, it may restrict the application
of the Act to such area or areas or areas as may be declared as water pollution,
prevention and control area or areas. Further, that the State Government has power
to alter any area or define a new area. In terms of Section 20 of the Water
(Prevention and Control of Pollution) Act, 1974 the State Board or any of its
authorized officer may make surveys, take measurement and obtain information for
the purpose specified in sub-section (1) of Section 20 (2) or Section 20 (3) is an
offense punishable under Section 41 (1) of the said Act. Section 21 of the Act
empowers a State Board or its authorized officer to take sample of water for analysis
and specify the procedure after the sample has been taken for analysis. Q.11(a)
Discuss the Constitution of State Board under Air Prevention and control of
Pollution Act 1981. Ans. A State Board constituted under this Act shall consist of
the following members, namely :(a) A Chairman, being a person having special knowledge or environmental
protection, to be nominated by the State Government :
Provided that the Chairman may be either whole-time or part time as the State
Government may think fit
(b) Such number of officials, not exceeding five, as the State Government may think
fit, to be nominated by the State Government to represent that Government;
(c) Such number of persons, not exceeding five, as the State Government may think
fit, to be nominated by the State Government from amongst the members of the local
authorities functioning within the State;
(d) Such number of non-officials, not exceeding three, as the State Government may
think fit, to be nominated by the State Government to represent the interests of
agriculture, fishery or industry or trade or labour or any other interest, which, in the
opinion of that Government, ought to be represented.
(e) Two persons to represent the companies or corporations owned, controlled or
managed by the State Government, to be nominated by the Government;
(f) A full-time member-secretary having such qualifications, knowledge and
experience of scientific, engineering or management aspects of pollution control as
may be prescribed, to be appointed by the State Government :
Provided that the State Government shall ensure that not less than two of the
members are persons having special knowledge or practical experience in respect of
matters relating to the improvement of the quality of air or the prevention, control or
abatement of air pollution. Section 5 of the Act deals with the constitution of State
Board. Sub-section (1) of Section 5 States that where the State Board has not been
constituted under the Water (Prevention and Control of Pollution) Act 1974. State
Pollution Control Board shall be constituted under this section, Sub –section (2) of
Section 5 lays down the composition of a State Pollution Control Board. However,
sub-section (3) of Section 47 makes it clear that the State Pollution Control Board
constituted under the present Act shall be regarded as a corporate body like a
company under the Companies Act, 1956, having perpetual succession, common
seal and liable to sue or be sued on its own name. Q.11(b) Specify the terms &
conditions of service of members and disqualification of person to be member
of State Board.
Ans. A member of a State Board constituted under this Act, other than the membersecretary, shall be deemed to have vacated his seat, if he is absent without reason,
sufficient in the opinion of the State Board, from three consecutive meetings of the
State Board or where he is nominated under clause © of sub-section (2) of section 5,
he ceases to be a member of the local authority and such vacation of seat shall, in
either case, take effect from such date as the State Government may, by notification
in the Official Gazette, specify. A casual vacancy in a State Board constituted under
this Act shall be filled by a fresh nomination and the person nominated to fill the
vacancy shall hold office only for the remainder of the term for which the member
whose place he takes was nominated. The other terms and conditions of service of
the Chairman and other members (except the member-secretary) of a State Board
constituted under this Act shall be such as may be prescribed. As provided under
Section 7(1) of the Act except for the member secretary, the term of office of
members of the Board shall be for the period of three years from the date of
nomination as notified in the Official Gazette. According to Section 7 (2) of the Act,
the office of member shall come to an end automatically if he happens to hold the
office under the State Government or in the company or corporation owned,
controlled and managed by the State Government. Section 7(3) makes provision
regarding resignation of a member except the member secretary. A member can
submit his resignation in writing under his hand addressed to the Chairman of the
State Board, however, in case of Chairman‘s resignation, he has to address his
resignation to the State Government. Section 7(6) declares that a member of a State
Board shall be eligible for re-nomination. Section 8 of the Act lays down the
conditions and circumstances for disqualifications of member, if he has been :- Adjudged insolvent ; or
- of unsound mind, declared by the court;
- convicted by the Court, which in opinion of the State Government, involves moral
turpitude; or
- Convicted under the Air(Prevention and Control of Pollution) Act ,1981;
- Directly or indirectly interested in the affairs of the company;
- If found to be working against the interest of general public continuance in office at
large. Q.12 What are the authorities under Wild Life Protection Act 1972 ? Ans.
Authorities to be appointed or constituted under the Act In accordance with
provisions of Section 3 the Central Government may appoint a Director for the
purposes of the Act and he/she will be called the Director of Wild Life Preservation.
The Central Government may also appoint such other officers and employees with
the view to assist the Director in performance of his duties and exercise of his
powers under the Act. Under Section 4 of the State Government is empowered to
appoint a Chief Wild Life Warden, Wild Life Wardens and also Honorary Wild Life
Wardens and other officers and employees for the purpose of the Act. The Bombay
High Court in Viniyog Parivar Trust v. Union of India, has held that for seeing the
Prevention of Cruelty to Animals Act, 1960, Transport of Animals Rules, 1978,
Prevention of Cruelty (Capture of Animals Act, 1960, Transport of Animals Rules
1972 and inhuman and cruel treatment the directions issued by the Apex Court from
time to time, a committee he appointed for implementation of aforesaid Acts, Rules
and directions. Section 5(1) of the Wild Life (Protection) Act provides that the
Director of Wild Life Preservation, with the previous approval of the Central
Government may delegate his powers to any subordinate officer to him, However,
such delegation of powers must be fmade in writing. Section 5(2) of the Wild Life (
Protection) Act, 1972 gives power to the concerned authority to delegate his powers
to any of his subordinate officers. According to Section 5-A(1) of the Act, the Prime
Minister and Minister in-charge of Forests and Wild Life shall be the Chairperson,
Vice-Chairperson of the National Board for Wild Life respectively and other members
shall be such as provided in the said section. However, they are ex-officio members
of the Board. Section 5-A(3) makes it clear that members, except ‗ex-officio‘
members shall be entitled to receive such allowances on account of performance of
the duties as provided therein. The office of a member of the National Board for Wild
Life shall not be deemed to be office of profitSection 5-B makes provisions for
constitution of the Standing Committee of the national Board and this committee
shall perform such functions as may be prescribed by the National Board for Wild
Life. Section 6 (As Amended) imposes duty upon the State Government to constitute
the State Board for Wild Life within a period of six months from the date of
commencement of the Wild Life (Protection) Amendment Act, 2002. The Chief
Minister of the State and in case of Union Territories, the Administrator shall be the
Chairperson of the State Board for Wild Life. However, the Minister in-charge of
Forests and Wild Life shall be the Vice-Chairperson and other members of the State
Board shall be ex-officio. Q.13 Discuss the powers of Central Government to
supersede the Central Board and Joint Boards under the water (Prevention
and Control of Pollution) Act, 1974. Ans. Sec-61 Power of Central Government to
supersede the Central Board and Joint Boards –(1) If at any time the Central
Government is of opinion –
(a) that the Central Board or any Joint Board has persistently made default in the
performance of the functions imposed on it by or under this Act; or
(b) that circumstances exist which render it necessary in the public interest so to do.
The Central Government may, be notification in the Official Gazette, supersede the
Central Board or such Joint Board, as the case may be, for such period, not
exceeding one year, as may be specified in the notification : Provided that before
issuing a notification under this sub-section for the reasons mentioned in clause (a),
the Central Government shall give a reasonable opportunity to the Central
Government shall give a reasonable opportunity to Central Board or such Joint
Board, as the case may be, to show cause why it should not be superseded and
shall consider the explanations and objections, if any, of the Central Board or such
Joint Board, as the case may be. (2) Upon the publication of a notification under subsection (1) superseding the Central Board or any Joint Board –
(a) all the members shall, as from the date of supersession vacate their offices as
such ; (b) all the powers, functions and duties which may, by or under this Act, be
exercised, performed or discharged by the Central Board or such Joint Board shall,
until the Central Board or the Joint Board, as the case may be, in reconstituted under
sub-section (3) be exercised. Performed or discharged by such person or persons as
the Central Government may direct; (c) all property owned or controlled by the
Central Board or such Joint Board shall, until the Central Board or the Joint Board,
as the case may be, is reconstituted under sub-section (3) vest in the Central
Government. (3) On the expiration of the period of supersession specified in the
notification issued under sub-section (1), the Central Government may –
(a) extend the period of supersession for such further term, not exceeding six
months, as it may consider necessary; or
(b) reconstitute the Central Board or the Joint Board, as the case may be, by such
case any person who vacated his office under clause (a) of sub-section (2) shall not
be deemed disqualified for nomination or appointment:
Provided that the Central Government may at any time before the expiration of the
period of supersession, whether originally specified under sub-section (1) or as
extended under this sub-section, take action under clause (b) of this sub-section.
COMMENTS Under Section 61 of the Water (Prevention and Control of Pollution)
Act, 1974 the Central Government may :(a) supersede the Central Board or Joint Board;
(b) extend the period of supersession; or
(c) reconstitute the Central Board or the Joint Board
:However, upon the supersession of the Central Board or a Joint Board, the
consequences specified in Section 61 (2) shall ensue.
The full Bench of Rajasthan High Court in Ram Chandra Swami v. State of
Rajasthan, has held that the Government‘s action must not be arbitrary or capricious
but must be based on some principle which meets the test of reason and relevance.
Q.14 Write short notes on :- (a) Noise is a nuisance in Penal Code and a health
hazard in Environmental Laws. Comment.? Ans. Noise is a slow agent of death. It
causes hearing impairment and mental imbalance besides affecting psychological
health of human being. ―Noise pollution‖ means defilement of atmosphere due to
sound. In other words disturbing the atmosphere by means of sound. Recent studies
reveal that a prolonged exposure to noise levels above 90 delibels can cause
permanent deafness. Researchers are of opinion that if the present noise levels
continue unfettered, future generations may be born deaf and dumb. The causes of
noise pollution may be divided in two categories, namely:
1. Natural noise pollution;
2. Man-made noise pollution.
1. Natural noise pollution – In this category of noise pollution, air, seas, volcanoes,
rivers and exchanging voices of living organs.
2. Man-made noise pollution – This category of noise pollution is caused by
machines, automobiles, trains, aeroplanes, social and religious celebrations,
speeches, construction works and other modern equipments.
There are three kinds of noise pollution. These are as under:1. Industrial Noise Pollution
2. Urban Noise Pollution
3. Rural Noise Polllution
1. Industrial noise Pollution.- The noise pollution produced due to industrial
activities is called industrial noise pollution. In recent decades enormous
industrialization has taken place which created noise pollution from industrial
sources. Most of the Indian cities are suffering from industrial noise pollution.
2. Urban noise pollution.- The noise pollution created by automobiles cultural
programmes, festivals, advertisement and loudspeakers are the most significant
urban noise pollution.
3. Rural noise pollution.- The noise pollution created due to use of pumping sets,
flour mills and religious gathering in rural areas is called rural noise pollution.
However, rural noise pollution generates least hazard in comparison with the
industrial and urban noise pollution.
The Allahabad High Court in Radhey Shyam v. Guru Prasad,1 issues injunction
against the defendant, restraining him from running a flour-mill on the ground of
causing additional noise in an already noisy area. Constitution of India: Noise
pollution The Division Bench of Calcutta High Court in Maulana Mufti Syed M.d
Noorur Rehman Barkati and Others v. State of West Bengal and Others, 2 observed
that use of microphones is of recent origin and accordingly it could not be said that
the use of microphones and loudspeakers are essential and integral part of the
religion. Microphone is a gift of technological age, its adverse effect is well felt all
over the world. It is not only a source of pollution but it is also a source which causes
several health hazards. In the instant case the Division Bench of Calcutta High Court
has held that the restrictions on the use of microphone as imposed by the Court,
Central Pollution Control Board and the State Pollution Control Board have to be
carried out by all concerned at any cost. Simply because no such formal restriction
has been imposed has been imposed in other parts of India and the fundamental
rights under Article 19(1)(a) are enforced strictly in the State of West Bengal and it is
not enforced in other parts of India that does not amount to any case of
discrimination. The Court futherheld that use of loudspeakers and microphones in
―Azaan‖ (A call for player at mosque) is not essential and integral part of any
religion, hence there is no violation of right to religion guaranteed under Article 25 of
the Constitution of India. The Apex Court in Church of God (full Gospel) in India v.
K.K.R. Majestic Colony Welfare Association & others,3 has held that no religion
prescribes that prayers should be performed by disturbing the peace of others. The
question involved in this case was whether in a country having multiple religious
communities a religious community could claim its right to add to noise pollution on
the ground of religion.
The Court expressed the view that undisputably no religion prescribes that prayers
should be performed by using microphones/loudspeakers or by beating of drums
civilized society in the name of religion, activities which disturb old or inform persons,
students or children having their sleep in early hours or during day time or other
persons carrying on other activities cannot be permitted. It should not be forgotten
that young babies in the neighbourhood are also entitled to enjoy their natural right
of sleeping in a peaceful atmosphere. A student preparing for his examination is
entitled to concentrate on his studies without there being any unnecessary
disturbance by neighborhood. Such natural rights ar also required to be honoured.
The Apex Court while referring to some observations made by the Constitution
Bench of this Court qua right under Article 25(i.e. Freedom of Conscience and free
profession, practice and propagation of religion), Article 26 (i.e. Freedom to manage
religious affairs) of the Constitution in Acharya Maharajshri NarendraPrasad Ji
anand Prasad Ji Maharaj v. The State of Gujarat, reiterated that no right in an
organized society can be absolute. Enjoyment of one‘s right must be consistent with
the enjoyment of rights also by others. Wherein a free play of social forces is not
possible to bring about a voluntary harmony, the State has to step into and set right
the imbalance between competing interest. The Court restated that a particular
fundamental right cannot exist in isolation in a watertight compartment. One
Fundamental Right of a person may have to co-exist in harmony with the exercise of
another Fundamental Right by others also with reasonable and valid exercise of
power by the State in the light of Directive Principles in the interest of social Welfare
as a whole. Even, no function should be carried out in violation of the Act and the
Rules. It is submitted that the use of loudspeakers/public address system is neither a
fundamental right nor a Constitutional right.
In P.A. Jacob v. Superintendent of Police, Kotttayam, the Kerala High Court had an
occasion to consider whether the Constitution of India guarantees a right to use
loudspeakers or other such devices or whether use of such device flows from the
right to freedom of speech and expression of guaranteed under. Article 19 (1) (a) of
the Constitution of India. It was held by the Kerala High Court that the right to speech
implies the right to silence. It also implies freedom not to listen, and not to be forced
to listen. It is clear that the right to speech is subordinate to peace and public order.
The Court was of the view that a person can refuse to read a printed material or can
switch off his radio or a
television set. But, these choices are not present in case of use of loudspeakers by
some one else. A sound from loudspeakers cannot be prevented from reaching to
him. But, he could not be compelled to hear what he wished not to hear. The Court
further held that no one has right to trespass on the mind or ear of another and to
commit auricular or visual aggression. The Court made it clear that the use of
loudspeaker may be incidental to the exercise of the Right of Freedom of Speech
and Expression, but its use is not a matter of right, or part of that right. Similarly,
Calcutta High Court in Om Biramgama Religious Society v. State, has held that
freedom of speech and expression guaranteed under Article 19 (1) (a) of the
Constitution of India essentially includes freedom not to listen and/or to remain silent.
One cannot be permitted to exercise his fundamental right at the cost of others
health or well being. In the present case the sub-divisional officer rightly directed the
petitioner/society not to use any microphone while performing the pooja and other
religious activities. Recently, the Supreme Court in Forum for the Prevention of
Environment and Sound Pollution v. Union of India has held that prohibition on use
of loudspeaker or public system between 10 p.m. to 12 midnight is not invalid or
unconstitutional. Thus, Rule 5(2) of the Noise Pollution (Regulation and Control)
rules, 2000 (As amended in 2002) provided that loudspeaker or a public address
system shall not be used at night between 10 p.m. and 6 a.m. except in closed
premises, it is constitutional and not invalid. It is submitted that it is the duty of the
State to preserve and protect the freedom of speech and expression, but without
causing invasion to others as the peoples‘ right cannot be forcibly suspended by any
person.
In S.K. Ikram Sheikh Israil v. State of Maharashtra, where the appellants carrying out
manufacturing of brass utensils was causing noise pollution affecting the schools
and the people of the area. As a result notice to the appellant was issued by the
Superintendent of police directing appellants to stop their activities/business. Before
the Supreme Court, appellants submitted that they should be given an opportunity
toreduce the noise level and take remedial measures. The Supreme Court ruled that
in these circumstances, appellants were directed to submit a concrete proposal
before the authorities concerned stating how they would stick to the norms. (b)
Global Warming and Depletion of ozone layer in atmosphere. Ans. Defilement of
air is called air pollution. The gases released or generated by industrial activities are
absorbed in the atmosphere. Even the harmful ultraviolet radiations are also
absorbed in the stratosphere by the vital ozone layer. This is sufficient to damage
the terrestrial life. Increase in green houses, namely, carbon-di-oxide, Methane and
Sulphur-di-oxide etc. and release of 65,000 compounds into the atmosphere is badly
affecting the quality of air and also composition of the atmosphere. As a result it
leads to global warming. The scientists had reported that earth‘s surface
temperature has risen by 0.7 celsius since 1950. On the other hand, ozone layer
which protects earth from the ultraviolet radiation, is rapidly thinning particularly the
protective ozone shield in the northern hemisphere. According to scientists – the
damaging trend of ozone layer and increase of global temperature may result in the
eruption of cancerous and tropical diseases, melting of glacier, flood in low lying
coastal areas, submergence of islands (Tsumani disaster), and raising of sea levels.
It is true that the problem of environmental pollution is global and it is not confined to
particular part of the world. The environmental pollution is global and it is not
confined to particular part of the world. The environmental pollution is capable of
moving from the continent to another continent and irresponsible disposal of
radioactive wastes may result in the considerable destruction of life and property.
According to the world Health Organisation (W.H.O.). an estimated 77,000 deaths
are recorded annually in the Asia-Pacific region due to health problems arising from
global warming. The report stated that we have now reached a critical stage in which
global warming has already seriously affected lives and health and this problem will
pose an even greater threat to mankind in coming decades if we fail to act now.‖ As
quoted by Mr. Shigeru Omi, W.H.O. regional director for the Western Pacific. ( c)
Acid Rain The formation of acid rain mainly caused with the emissions of Sulphurdi-oxide and nitrogen oxide. The emissions of these hazardous gases are caused by
industrial operations, automobiles and burning of oil, wood etc. These gases
combined with water vapours in clouds form nitric acid and sulphuric acid. When
precipitation falls from the clouds, it is highly acidic in nature. Thus, acid rain is a
combination of gases, i.e., Carbon-di-oxide, Sulphur-di-oxide. Nitrogen oxide and
Chlorine with water vapours which get converted in carbonic acid, Sulphuric acid,
Nitric acid and Hydro-chloric acid in presence of sunlight. It is clear that these acids
are capable to damage soils, vegetation and surface water. These acid pollutants
can travel thousand of kilometers by means of air causing erosion and
desertification. Acid rain is detrimental to human health but also capable to bring
changes in marble, limestone, mortar and metals etc. (d) Municipal Council,
Ratlam vs. Vardhichand, A.I.R. 1980 1622. Brief facts – In the present case the
residents of a locality within limits of Ratlam Municipality tormented by stench and
public excretion by nearby slum dwellers moved the Magistrate under Section 133 of
Cr.P.C. to require Municipality to do its duty towards the members of the public. The
Magistrate gave directions to Municipality to draft a plan within six months for
removing nuisance. In appeal, Sessions Court reversed the order. The High Court
approved the order of Magistrate. In further appeal, the Supreme Court also affirmed
the Magistrate‘s order. Held – Where there existed a public nuisance in a locality
due to open drains, heaps of dirt, pits and public excretion by humans for want of
lavatories and consequential breeding of mosquitoes, the Court could require the
Municipality under Section 133 of the Cr.PC. and in view of Section 123 of the
Municipalities Act to abate the nuisance by taking affirmative action on a time bound
basis. When such order was given the Municipality could not take the plea that
notwithstanding the public nuisance financial inability validly exonerated it from
statutory liability.
Code operates against statutory body – The Criminal Procedure Code operates
against statutory bodies and others regardless of the cash in their coffers, even as
rights under Part III of the Constitution have to be respected by the State regardless
of budgetary provision. Likewise, Section 123 of the Municipalities Act has no saving
clause when the Municipal Council is penniless. Otherwise a profligate statutory
body or pachydermic governmental agency may legally defy duties under the flaw by
urging in self defence a self created bankruptcy or perverted expenditure budget.
That cannot be. Section 133 of Cr.P.C. is categoric and has a mandatory import.
Although reads discretionary judicial discretion when facts for its exercise are
presented. Therefore, when the Magistrate has, before him, information and
evidence, which disclose the existence of a public nuisance and on the materials
placed, he considers that such unlawful obstruction or nuisance should be removed
from any public place which may be lawfully used by the public, he shall act. Thus,
his judicial power shall, passing through the procedural barrel, fire upon the
obstruction or nuisance, triggered by the jurisdictional facts. The Magistrate‘s
responsibility under Section 133 Cr.P.C. is to order removal of such nuisance within
a time to be fixed in the order. This is a public duty implicit in the public power to be
exercised on behalf of the public and pursuant to a public proceeding. Failure to
comply with the direction will be visited with a punishment contemplated by Section
188 I.P.C. Therefore, the Municipal Commissioner or other executive authority is
bound by the order under Section 133 Cr.P.C. and shall obey the direction, because
disobedience, if it causes obstruction or annoyance or injury to any person lawfully
pursuing their employment, shall be punished with simple imprisonment or fine as
prescribed in the Section. The offence is aggravated if the disobedience tends to
cause danger to human health or safety The imperative tone of Section 133 Cr.PC.
read with the punitive temper of Section 188 I.P.C., make the prohibitory act a
mandatory duty.
Public nuisance must be checked – Public nuisance, because of pollutants being
discharged by big factories to the detriment of the poorer sections, is a challenge to
the social justice component of the rule of law. Likewise, the grievous failure of local
authorities to provide the basic amenity of public conveniences drivers the miserable
slum-dwellers to ease in the streets, on the sly for a time and openly thereafter,
because under Nature‘s pressure, bashfulness becomes a luxuary and dignity a
difficult art. A responsible municipal council constituted for the precise purpose of
preserving public health and providing better finances cannot run away from its
principal duty by pleading financial inability. Decency and dignity are non-negotiable
facets of human rights and are a first charge on local self governing bodies.
Similarly, providing drainage system-not pompous and attractive, but in working
condition and sufficient to meet the needs of the people, cannot be evaded if the
municipality is to justify its existence. (e) Sachidanand Pandey Vs. State of West
Bengal A.I.R. 1987 S.C.1109 In this case the scope of judicial review in
environmental cases was explained by the Apex Court. Brief facts – Where a group
of citizens challenged the location of a hotel on the ground that the construction of
hotel would interfere with the flight path of migatory birds. However, the construction
of the Calcutta Taj Hotel was delayed for six months while administrative agencies
and courts considered whether a proposed six-storey hotel would impede the flight
pattern of migatory birds. The land on which the hotel was to be constructed formerly
belonged to the Alipore Zoological Garden and was put to important zoo related
uses. The zoo directors had withdrawn their objections to the hotel after the
government promised them adjacent lands and relocation grants, the hoteliers
agreed to reconstruct all displaced facilities on the adjacent lands, at no expense to
the zoo. Scope of judicial review – The least that the Court may do is to examine
whether appropriate considerations are borne in mind and irrelevancies excluded. In
appropriate cases the Court may go further but how much further must depend on
the circumstances of the case. The Court may always give necessary directions.
However, the Court will not attempt to nicely balance relevant considerations. When
the question involves the nice balancing of relevant considerations, the Court may
feel justified in resigning itself to acceptance of the decision of the concerned
authorities. The Supreme Court expressed the view that it is not merely another town
planning case but a ringing statement of the court‘s duty to protect the environment.
Here the duly authorized construction of medium-size five star hotel was alleged to
interfere with the flight path of migratory birds and the Court inquired extensively into
this question. If the migratory birds are worthy of the court‘s attention, a ―fortiori‖
the Court‘s protection would extend to environmental issue of more direct impact on
human beings. Held – Whenever a problem of ecology is brought before the Court,
the Court is bound to bear in mind Article 48-A of the Constitution and Article 51A(g)… When the Court is called upon to give effect to the Directive principle and
Fundamental duty, the Court is not to shrug its shoulders and say that priorities are a
matter of policy and so it is a matter for the policy making authority. The least that
the Court may do is to examine whether appropriate considerations are borne in
mind and irrelevancies excluded. In appropriate cases, the Court may go further, but
how much further will depend on the circumstances of the case. The Court may
always give necessary directions. However, Court will not attempt to nicely balance
relevant considerations. When the question involves the nice balancing of relevant
considerations, the Court may feel justified in resigning itself to acceptance of the
decision of the concerned authority. Developmental allowed – Though the citizens
of Indian cities are facing environmental urban problems, however, the hotel project
was eventually permitted to proceed, not only because the hotelier had taken
environmental values into account in fashioning the project but also because there
were obvious public benefit, viz – increased revenues from tourism, and general
upgrading and beautification of the area. Q.15 Mention the contribution of
following cases in Protection of Environment – (a) M.C. Mehta Vs. Union of
India AIR 1988 S.C. 1037 Ans. In M.C. Mehta v.. Union of India, where the public
interest litigation was filed before the Supreme Court by a social worker Mr. M.C.
Mehta seeking writ of mandamus against the respondents (7 to 9) restraining them
from letting out the trade effluents into the river ganga till such time they install
necessary treatment plants for treating the trade effluents in order to arrest the
pollution of Ganga Water. In the facts and circumstances the Supreme Court has
held that :Water is the most important of the elements of nature. River valleys are the cradles
of civilization from the beginning of the world. Aryan civilization grew around the
towns and villages at the banks of river Ganga.Varanasi which is one of the cities on
the bank of the river Ganga. Varanasi which is one of the cities on the bank of the
river Ganga is considered to be one of the oldest human settlements in the world. It
is the popular belief that the river Ganga is the purifier of all but we are now led to
situation that action must be
taken to prevent the pollution of the water of river Ganga since we have reached a
stage that any further pollution of the river Ganga is likely to lead to a catastrophe.
There are also large industries on its banks. Sewage of the towns and cities on the
banks of the river and trade effluents of the factories and other industries are
continuously discharged into the river. It is the complaint of the petitioner that neither
the Government nor the people are giving adequate attention to stop the pollution of
the river Ganga. Steps have therefore to be taken for the purpose of protecting the
cleanliness of the stream of the river Ganga which is in fact the life sustainer of a
large part of the northern India. The proclamation adopted by the United Nations
Conference on the Human Environment which was held at Stockholm from 5th to 16th
June, 1972 and in which the Indian delegation led by the Prime Minister of India took
a leading role contemplates as follows :1. ―Man is both creature and moulder of his environment which gives him physical
sustenance and affords him the opportunity for intellectual, moral, social and spiritual
growth, Both the aspects of man‘s environment, the natural and man made, are
essential to his well being and to the enjoyment of the basic human rights even to
the right of life itself.
2. The protection of the human environment is a major issue which affects the well
being of peoples and economic development throughout the world is the urgent
desire of the people of the whole world and the duty of all Governments.
3. Man has constantly to sum up experience and go on discovering, inventing,
growing and advancing. In our time man‘s capability to transform his surroundings if
used wisely can bring to all people the benefits of development and the opportunity
to improve the quality of life. We see around growing evidence of manmade harms in
many regions of the earth.‖
The Supreme Court further held that:The river Ganga is the life of millions of people of India, Indian culture and civilization
has grown around it. The Ganga has always been an integral part of the Nation‘s
history, culture and environment. It has been the part of sustenance for the millions
of people who have lived on it‘s the part of sustenance for the millions of people who
have lived on its banks from times immemorial. Millions of our people along the
Ganga drink its water on the faith and belief to purify themselves to achieve the
Moksha and release from the cycle of birth and re-birth. It is tragic that the Ganga,
which has since times immemorial purified the people, is being polluted by man in
numerous ways by dumping of garbage, throwing the carcass of dead animals and
discharging of effluents. Scientific investigation and survey reports have shown out
the Ganga which serves 1/3rd of India‘s population is polluted by Municipal sewage
and the industrial effluents discharged into the river. The pollution of the river Ganga
is affecting the life, health and ecology of Indo-Gangetic plain. The Government as
well as Parliament both have taken a number of steps to control the water pollution
but nothing substantial has been achieved. No law or authority can succeed in
removing the pollution unless the people co-operate. It is the sacred duty of all those
who reside and carry on business along the river to close the tanneries if they have
failed to take immediate steps required for the primary treatment of industrial
effluents. (b ) M.C. Mehta Vs. Union of India, A.J.R. 1987 Sc 965 Ans. In this case
the question arose because of leakage of Oleum Gas from one of the units of the
Shriram Food & Fertilizers Industries, as a result of which several persons were
affected. In the facts and circumstances of the case and based upon the reports
submitted by the expert committees on the subject, the Supreme Court has held that
- ―It is undoubtedly true that chlorine gas is dangerous to the life and the health of
the community and if it escapes either from the storage tank or from the filled
cylinders or from any other point in the course of production, it is likely to affect the
health and well being of the workmen and the people living in the vicinity…., we
have, with considerable hesitation bordering almost on trepidations, reached the
conclusion that, pending consideration of the issue whether caustic chlorine plant
should be directed to be shifted and relocated yet to some other place, the caustic
chlorine plant should be allowed to restart by the management of the Shriram
subject to certain stringent conditions.‖ The Apex Court formulated the conditions as
follows:1. ―Since it is clear from the affidavits and the reports of the various expert
committees that the management of the Shriram was negligent in the operation,
maintenance of the caustic chlorine plant and did not take necessary measures for
improving the design and quality of the plant and equipment and installing adequate
safety device and instruments with a view to ensure the maximum safety of the
workers and the community living in the vicinity and it is only after writ petition
no.12739 of 1985 was filed and all the glaring deficiencies were pointed out that the
management carried out various alterations and adopted various measures in
accordance with the recommendations made by Man Mohan Singh Committee and
Nilay Choudhary Committee, it is necessary that an expert committee should be
appointed by us which will monitor the operation and maintenance of the plant and
equipment and ensure the implementation of the recommendations of these two
committees….
2. ―One operator should be designated as personally responsible for each safety
device or measure and head of the caustic chlorine division should be made
individually responsible for the efficient operation of such safety device or measure.
If at any time during the examination by the expert committee or inspection by the
Inspectorate it is found that any safety device or measure is inoperative or it is not
totally functioning, the head of the caustic chlorine plant as well as the operator incharge of such safety device or measure should be held personally responsible….‖
3. ―The Chief Inspector of Factories or any Senior Inspector duly nominated
by…..will inspect the caustic chlorine plant at least once in a week by paying
surprise visit… and examine whether the recommendations of Man Mohan Singh
Committee and Nilay Choudhary Committee are being complied with by the
management…. Or whether there are any defects or deficiencies in the operation
and maintenance of the caustic chlorine plant and in the safety devices or
instruments installed in the plant…‖
4. ―The Central Board will also depute a Senior Inspector to visit the cautstic
chlorine plant and the vanaspathy plant at least once in a week without any prior
notice to the management for the purpose of ascertaining whether the effluent
discharged from the vanaspathy plant as also the terminal outlet complies with the
limiting standards laid down in the consent order issued under the Water Act and the
particular matter entitled by the stacks of the boilers in the power plant complies with
the standards laid down in the
consent order issued under the Air Act and if there is any default in complying with
the relevant standard in either case, such default should be brought to the notice of
this Court and the Central Board will be entitled to take such action as it thinks fit
including revocation of the relevant consent order.‖
5. ―The management of Shriram will give an undertaking…. That in case there is
any escape of any chlorine gas resulting in death or injury to the workmen or to the
people living in the vicinity, they will be personally responsible for payment of
compensation for such death or injury such undertaking shall be filed in Court within
one week from today.‖
6. ―There Shall be a committee to look after the safety arrangement in the caustic
plant if ther is any default or negligence in the observance of the safety measures
and maintenance and operation of the safety devices and instruments to draw the
attention of the Labour Commissioner….‖
7. ― There shall be placed in each department or section of the caustic chlorine
plant as also on the gate premises the detailed chart in English and Hindi stating the
effects of the chlorine gas on human body and informing the workmen and people,
as to what immediate treatment should be taken in case they are affected by
leakage of chlorine gas.‖
8. ―Every worker in the caustic plant should properly trained and instructed in
regard to the functioning of the specific plant equipment in which` he is working and
he should also be educated and informed as to what precautions should be taken in
case of leakage of chlorine gas to control and contain such leakage.‖
9. ―Loud speakers shall be installed all around the factory premises for giving timely
warning and adequate instructions to the people residing in the vicinity in case of
leakage of chlorine gas.‖
10. ―The management should maintain proper vigilance as to the wearing of
helmets, gas masks or safety belts by the workmen in the caustic chlorine plant
while on work and then require medical check up to ensure that the workers are in
good health.‖
11. ―The management of Shriram will deposit in this Court a sum of Rs.20 lakhs by
way of security for payment of compensation claims.‖
The Court pointed out ―that the caustic chlorine plant of Shriram is not the only
plant
which is a hazardous industry. There are many other plants in Delhi which are
employing hazardous technology or are engaged in manufacture of hazardous
goods and if a proper and adequate precaution are not taken, they too are likely to
endanger the life and health of the community. We would therefore suggest that a
High Power Authority should be set up by the Government of India in consultation
with the central Board for overseeing the functioning of hazardous industries with a
view to ensure that there are no defects or deficiencies in the design, structure or
quality of their plant and machinery, there is no negligence in the maintenance and
operation of the plant and equipment and necessary safety devices and instruments
are installed and are in operation and proper and adequate safety standards and
procedures are strictly followed. This is a question which needs serious attention by
the Government of India and we would request the Government of India to take
necessary steps at the earliest because the problem of the health and well being of
the community on account of the chemical and other hazardous industries has
become a pressing problem in modern industrial society. It is also necessary to point
out that when science and technology are increasingly employed in producing goods
and services calculated to improve the quality of life, there will be certain element of
hazard and risk inherent in the very users of science and technology and it is not
possible to totally eliminate such hazard and risk altogether‖. The Supreme Court
said,‖ we cannot possibly adopt a policy of not having any chemical or any
hazardous industry merely because they pose hazard or risk to the community. If
such policies were adopted it would mean the end of progress and development.
Such industries, even if hazardous, have to set up since they are essential for
economic development and advancement of well being of people.‖ The Supreme
Court further said‖ we can only hope to reduce the element of
hazard or risk to the community by taking all necessary steps for locating the
industries in such a manner which would pose least risk or damage to the
community and ensure maximum safety requirement of such industries and the
Court would therefore like to impress upon Government of India to evolve a national
policy for location of chemical and other hazardous industries in the areas where
population is scarce and there is little hazard or risk to the community and when
hazardous industries are located in such area every care must be taken to see that
much human habitation does not grow around them. There should preferably be a
green of 1to 5km. of width around such hazardous industries.‖ Thus, upon leakage
of Oleum gas from caustic chlorine plant affecting several persons, the Supreme
Court allowed it to be restarted by the management subject to certain stringent
conditions that were specified as aforesaid. (c ) M.C. Mehta Vs. Union of India,
A.I.R 1987 S.C. 382 Ans. M.C. Mehta V. Union of India Brief facts.- The relief
claimed in the application under Article 32 of the Constitution of India are for issuing
appropriate directions to cinema exhibition halls to exhibit slides containing
information and messages on environment free of cost; directions to spread
information relating to environment in national and regional languages and for
broadcast thereof on the television in regular and short term programmes with a view
to educate the people of India about their social obligation in the matter of the
upkeep of the environment in proper shape and making them alive to their
obligations not to act as polluting agencies or factors. In this case the petitioner also
sought relief that environment should be made a compulsory subject in school and
colleges in a graded system so that there would be a general growth of awareness.
Held.- Law is a regulator of human conduct but no law indeed effectively work
unless there is an element of acceptance by the people in society. No law works out
smoothly unless the interaction in voluntary. In order that the
human conduct may be in accordance with the prescription of law It is necessary
that there should be appropriate awareness about what the law requires and there is
an element of acceptance that the requirement of law is grounded upon a philosophy
which should be followed. This would be possible only when steps are taken in an
adequate measure to make people aware of the indispensable necessity of their
conduct being oriented in accordance with the requirement of law. In a democratic
polity dissemination of information is the foundation of the system. Keeping the
citizens informed is an obligation of the Government. It is equally the responsibility of
society to adequately educate every component of it so that the social level is kept
up. The Supreme Court, therefore, accepted
on principle the prayers made by the petitioner for issuing appropriate directions to
cinema exhibition halls to exhibit slides containing information relating to
environment in national and regional languages and for broadcast thereof on the All
India Radio and exposure thereof on the television in regular and short term
programmes with a view to educating the people of India about their social
obligations in the matter of the up keep of the environment in proper shape and
making them alive to their obligations not to act as polluting agencies or factors and
to make environment as a compulsory subject in schools and colleges in a graded
system so that there would be a general growth of awareness and issued certain
directions to the Government, to that effect. Directions – In the instant case the
Apex Court passed directions to the Central Government as follows :(i) Environmental pollution –Mass awareness through slide show, Radio and T.V.
(ii) Education –Environment to be made compulsory subject in schools and colleges.
(iii) In democratic polity it is the obligation of the Central Government for ensuring
mass communication.
Court’s observation – The Court observed that there has been an explosion of
human population over the last 50 years. Life has become competitive. Sense of
Idealism in the living process has systematically eroded. As a consequence of this
the age old norms of good living are no longer followed. The anxiety to do good to
the needy or for the society in general has died out, today, oblivious of the
repercussions of one‘s actions on society, every one is prepared to do whatever is
easy and convenient for his own purpose. In this backdrop if the laws are to be
enforced and the malaise of pollution has to be kept under control and the
environment has to be protected in an unpolluted State it is necessary that people
are of the vice of pollution and its evil consequences. (d) Municipal Council, Rattan
Vs. Vardichand, A.I.R. 1980 1622
Brief facts – In the present case the residents of a locality within limits of Ratlam
Municipality tormented by stench and public excretion by nearby sum dwellers
moved the Magistrate under Section 133 of Cr.P.C. to require municipality to do its
duty towards the members of the public. The Magistrate gave directions to
Municipality to draft a plan within six months for removing nuisance. In appeal,
Sessions Court reversed the order. The High Court approved the order of
Magistrate. In further appeal, the Supreme Court also affirmed the Magistrate‘s
order. Held – Where there existed a public nuisance in a locality due to open drains,
heaps of dirt, pits and public excretion by human for want of lavatories and
consequential breeding of mosquitoes, the Court could require the Municipality
under Section 133 of the Cr. P.C. and in view of Section 123 of the Municipalities Act
to abate the nuisance by taking affirmative action on a time bound basis. When such
order was given the Municipality could not take the plea that notwithstanding the
public nuisance financial inability validly exonerated it from statutory liability. Code
operates against statutory body – The Criminal Procedure Code operates against
statutory bodies and other regardless of the cash in their coffers, even ashuman
rights under Part III of the Constitution have to be respected by the State regardless
of budgetary provision. Likewise, Section 123 of the Municipalities Act has no saving
clause when the Municipal Council is penniless. Otherwise a profligate statutory
body or pachydermic governmental agency may legally defy duties under the law by
urging in self defence a self created bankruptcy or perverted expenditure budget.
That cannot be.
Section 133 of Cr.P.C.is categoric and has a mandatory import. Although reads
discretionary judicial discretion when facts for its exercise are presented. Therefore,
when the Magistrate has, before him, information and evidence, which considers that
such unlawful obstruction or nuisance should be removed from any public place
which may be lawfully used by the public, he shall act. Thus, his judicial power shall,
passing through the procedural barrel, fire upon the obstruction or nuisance,
triggered by the jurisdictional facts. The magistrate‘s responsibility under Section 133
Cr.P.C. is to order removal of such nuisance within a time to be fixed in the order.
This is a public duty implicit in the public proceeding. Failure to complay with the
direction will be visited with a punishment contemplated by Section 188 I.P.C.
Therefore, the Municipal Commissioner or other executive authority is bound by the
order under Section 133 Cr.P.C. and shall obey the direction, because disobedience,
if it causes obstruction or annoyance or injury to any person lawfully pursuing their
employment, shall be punished with simple imprisonment or fine as prescribed in the
Section. The offence is aggravated if the disobedience tends to cause danger to
human health or safety. The imperative tone of Section 133 Cr.P.C. read with the
punitive temper of Section 188 I.P.C. make the prohibitory act a mandatory duty.
Public nuisance must be checked- Public nuisance, because of pollutants being
discharged by big factories to the detriment of the poorer sections, is a challenge to
the social justice component of the rule of law. Likewise, the grievous failure of local
authorities to provide the basic amenity of public conveniences drives miserable
slum-dwellers to ease in the streets, on the sly for a time and openly thereafter,
because under Nature‘s pressure, bashfulness becomes a luxuary and dignity a
difficult art. A responsible municipal council constituted for the precise purpose of
preserving public health and providing better finances cannot run away from its
principal duty by pleading financial inability. Decency and dignity are non-negotiable
facets of human rights and are a first charge on local self voerning bodies,. Similarly,
proving drainage system-not pompous and attractive, but in working condition and
sufficient to meet the needs of the people, cannot be evaded if the municipality is to
justify its existence. (e) Sachidanand Pandey Vs. State of West Bengal A.I.R.
1987 S.C.1109 In this case the scope of judicial review in environmental cases was
explained by the Apex Court. Brief facts –Where a group of citizens challenged the
location of a hotel on the ground that the construction of hotel would interfere with
the flight path of migratory birds. However, the construction of the Calcutta Taj Hotel
was delayed for six months while administrative agencies and courts considered
whether a proposed six-storey hotel would impede the flight pattern of migatory
birds. The land on which the hotel was to be constructed formerly belonged to the
Alipore Zoological Garden and was put to important zoo related uses. The zoo
directors had withdrawn their objections to the hotel after the government promised
them adjacent lands and relocation grants, the hoteliers agreed to reconstruct all
displaced facilities on the adjacent lands, at no expense to the zoo.
Scope of judicial review – The least that the court may do is to examine whether
appropriate considerations are borne I mind and irrelevancies excluded. In
appropriate cases the court may go further but how much further must depend on
the circumstances of the case. The Court may always give necessary directions.
However, the court will not attempt to nicely balance relevant considerations. When
the question involves the nice balanceing of relevant considerations, the Court may
feel justified in resigning itself to acceptance of the decision of the concerned
authorities. The Supreme Court expressed the view that it is not merely another town
planning case but a ringing statement of the court‘s duty to protect the environment.
Here the duly authorized construction fo medium-size five star hotel was alleged to
interfere with the flight path of migratory birds and the Court inquired extensively into
this question. If the migratory birds are worthy of the court‘s attention, a ―fortiori‖
the court‘s protection would extend to environmental issue of more direct impact on
human beings. Held – Whenever a problem of ecology is brought before the court,
the Court is bound to bear in mind Article 48-A of the Constitution and Article 51-A(g)
….When the court is called upon to give effect to the Directive Principle and
Fundamental duty, the court is not to shrug its shoulders and say that priorities are a
matter of policy and so it is a matter for the policy making authority. The least that
the Court may do is to examine whether appropriate considerations are borne in
mind and irrelevancies excluded. In appropriate cases, the court may go further, but
how much further will depend on the circumstances of the case. The Court may
always give necessary directions. However, Court will not attempt to nicely balance
relevant considerations. When the question involves the nice balancing of relevant
considerations, the Court may feel justified in resigning itself to acceptance of the
decision of the concerned authority. Development allowed – Though the citizens of
Indian cities are facing environmental urban problems, however, the hotel project
was eventually permitted to proceed, not only because the hotelier had taken
environmental values into account in fashioning the project but also because there
were obvious public benefit, viz – increased revenues from tourism, and general
upgrading and beautification of the area.
Important Questions Q.1. What are the Main constitutional provision regarding
Environment Protection. Comment, citing the cases?
Q.2. What are Protectcal forest.? State the power of the Govt. to make rules for
Protected forest.?
Q.3. Explain the rules to regulate Environmental Pollution under Environmental
Protection Act- 1986.?
Q..4. Discuss the Powers given to State board under Water Prevention and
control of Pollution Act-1974.?
Q.5. Discuss the role of Judiciary in controlling the environmental Pollution.
explain with the help of decided cases.?
Q.6. Discuss the role of judiciary in controlling the Environmental Pollution .
explain with the help of decided cases?
Q.7. Mention the constitution of nationals Board under Sec 5-A of wild life
protection Act- 1972.?
Q.8 Discuss the Constitution of State board under Air prevention and control of
Pollution Act 1981 also specify the terms and conditions of service of members
and disqualification of person to be member of state board
Q.9 Mention the powers of Central Govt. to take measures to protect and
improve environment under Environment Protection Act 1986 Q.10 Define
―Protected Forests‖. How did they differ from ―Reserved Forests‖? What to
regulate matters of protected forests? Q.11 What are the authorities under Wild
Life Protection Act 1972. Q,12 Discuss the powers of Central Govt. of Supersede
the Central Board under Water Prevention and Central Board 1974.
Q.13 Mention the contribution of following cases in Protection of Environment.
(a) M.C. Mehta vs Union of India 1985
(b) RATLAM MUNICIPILITY vs Vardhi Chand 1980.
(c) R.L. and E Kendra Dehradun vs UP AIR 1985 SC 652.
(d) Andhra Pradesh vc Anupma Mineral 1995 Sec 117
(e) Union Carbide vs Union of India AIR 1990 SC 273
Q.14 (a) Protection of Atmospheres Zone Layer is a necessity. (b) Noise is a
Nuisance in Penal Code and a health hazard in Environmental Laws comment.
(b) Rain Acid
Q.15 What are the constitutional provisions relating to protection of Environment
Elaborate your answer. Q.16 What are the remedies under Sec 133 crpc relating
to protection of Environment. Q.17 What remedies are provide to compensate
the victim under Tort.