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Arijit Pasayat, J.—By destroying nature, environment, man is committing matricide,having in a way killed Mother Earth. Technological excellence, growth ofindustries, economical gains have led to depletion of natural resourcesirreversibly. Indifference to the grave consequences, lack of concern andforesight have contributed in large measures to the alarming position. In thecase at hand, the alleged victim is the flora and fauna in and aroundKudermukh National Park, a part of the Western Ghats. The forests in thearea are among 18 internationally recognized "Hotspots" for bio-diversityconservation in the world. The I.A. 670 of 2001 was filed by Sri K.M.Chinnappa describing himself as trustee. Wildlife First.
The said I.A. 670 of 2001 is an offshoot of I.A. 548 filed by learnedAmicus Curiae questioning the correctness of orders issued by the States ofKarnataka and Uttar Pradesh respectively which according to him were inviolation of the provisions contained in the Wildlife (Protection) Act, 1972(in short the 'Act'). By order dated 14.2.2000, operation of any orderpermitting removal of certain trees from National Parks, Games Sanctuariesand Forests was injuncted. Subsequently, the word 'forests' was deleted.
In the present I.A. learned Amicus Curiae has pointed out thatnotwithstanding orders passed by this Court on 12.12.1996 and 14.2.2000mining activities were being conducted by Kudremukh Iron Ore Co. Ltd.(hereinafter referred to as a 'company') which were in clear violation oforders passed by this Court. The main reliefs sought are:
"(a) to direct the More to withdraw the illegal "temporaryworking permission" issued by it and stop mining activities;
(b) direct KIOCL to stop polluting the Bhadra river due to opencast mining;
(c) take action against KIOCL for illegal encroachment in theforests and for destruction of forests in the Kudremukh NationalPark; and
(d) to stop KIOCL from laying new slurry pipe line in theforests of the National Park."
On 10.5.2001, this Court passed an order to the following effect:
"Issue notice returnable in the second week of July,2001. Mr. A.D.N. Rao, Advocate accepts notice on behalfof the Union of India. Service be effected on respondentNo. 2 though Mr. S.R. Hegde, Advocate and onrespondent No. 3 by ordinary process and by registeredpost.
Union of India will file an affidavit within eight weeksand in the affidavit they will also state the reason as towhy the Government of India having once notified thearea as a National Park then permit mining activity to becarried out notwithstanding this Court's order of 12thDecember, 1996."
It was noted that Kudermukh National Park in which mining activitieswere being carried out was declared to be a National Park in terms ofSection 35(1) of the Act. The matter was referred to the Central EmpoweredCommittee (in short 'the Committee') constituted u/s 3 of theEnvironment (Protection) Act, 1986 (in short the 'Environment Act'). Afterhearing the parties and taking note of the materials placed before it theCommittee has recommended as follows:
"After carefully considering all the views andsuggestions, the exceedingly rich biodiversity of the areaand investment made by the KIOCL, suggestion made bythe learned Amicus Curiae, the Committee is of the viewthat the KIOCL be asked to wind up its operations withina period of five years or on the exhaustion of the oxidizedweathered secondary ore, whichever is earlier, in thealready broken up area. It is clarified that the period of 5years would commence from 25-7-1999, when its leasehad expired.
The winding up period of five years shall besubject to the following conditions:
(i) the More should prepare or get arehabilitation and reclamation and a propereco-restoration plan prepared for the minedarea and project impact area throughappropriate agency at the cost of KIOCL;
(ii) KIOCL shall undertake to make availablefunds necessary for implementing for theaforesaid plans. The plans would beimplemented by the agencies selected by theMore and under the supervision of theMore;
(iii) a monetary compensation of Rs. 25 crores @Rs. 5/- crores per year will have to bedeposited by KIOCL with More in aseparate bank account which would beutilized for the purposes of research,monitoring and strengthening protection ofthe Kudremukh National Park and for otherprotected areas in the State of Karnataka;
(iv) a Monitoring Committee shall be constitutedby the More comprising representative ofMore, representative of the State ofKarnataka, two NGO experts preferablyfrom Karnataka, which shall monitor theimplementation of the rehabilitation plans;and
(v) after the winding up operations arecomplete, the KIOCL will transfer all thebuildings and other infrastructure to theForest Department of the State of Karnatakaat book value.
Transparent guidelines for dealing with developmentprojects in protected areas as recommended by LearnedAmicus Curiae and agreed to by the More in its affidavitfiled by Shri S.C. Sharma, Additional Director General ofForests shall be notified within 30 days with theconcurrence of the Central Empowered Committee."
One of the members of the Committee Shri Valmik Thaper gave adissenting note. According to him all mining operations must stopimmediately and the five years' period starting on 25th July, 1999 (on whichthe original lease period expired) must be treated as a "Restoration andWinding up period" so that the company can restore all mined lands, plantindigenous species and protect the region and give back to one of theworld's finest forests what has been taken from it. All costs will be met bythe project proponent. When the matter was taken up, Shri Thaper wasrequested to submit further materials, if any, to justify his dissenting note. Aphotographic Report has been submitted. The Company has filed itsresponse in relation to the Committee's recommendation and connectedreports.
While contending that there was no violation of any law relating toforests and environment certain legal issues were raised by the Companywhich need to be dealt with first. With reference to Rule 24 (B) of theMineral Concession Rules, 1960 (in short the 'Concession Rules') framedunder the Mines and Minerals (Regulation and Development) Act, 1957 (inshort the 'Mines Act'), it was submitted that notwithstanding anythingprovided under the Act, Conservation Act or the Environment Act, on anapplication being made the lease was to be renewed for twenty years andtherefore, the recommendations made at a point of time for such period werein order. Further, the draft Notification u/s 35(1) of the Act wasissued on 2.9.1987 and the final Notification was published on 16th June,2001 u/s 35(4) of the Act, whereby the land under mining wasspecifically excluded. In any event, 900 hectares of land was outside theland covered by the Notification. The Notification dated 29.5.1982 issuedunder Section 349 of the Karnataka Municipalities Act, 1964 (in short'Municipalities Act') was also relevant. All these, according to ShriVenugopal, took the land in question outside the purview of the operationsof the Act, Conservation Act and the Environment Act.
With reference to the order dated 14.11.2000 passed in W.P. 337/2000,it was submitted that the same was relatable to a stage u/s 35(5)of the Act. Since there was an existing legal right to get a renewal, whichhad already accrued, there was no question of any embargo on the renewalof the mining lease. In this background, it was submitted that the State andthe Central Governments at earlier points of time had acceded to the requestof the company for renewing the lease for twenty years. Reference in thiscontext was made to a letter dated 6.7.1999 issued by the State Government.It was pointed out that the company had subsisting with foreignbuyers, and if the lease is not renewed or the mining activities are required tobe abandoned, there shall be large financial implications on account ofimpossibility to perform the contracts. It was submitted that for the purposeof renewal, no consent is necessary as an exiting right is only to beextended further. In any event, the period as suggested by the Committeeshould be reckoned prospectively and not retrospectively and the two years'period already covered by temporary working permit should be reckonedwhite computing the period. It was pointed out that subsisting contracts withsome foreign countries are operative till 2005 and 2006 and at least adequatetime could be given to fulfill these contracts. Learned counsel for the Stateof Karnataka has submitted that originally it had accepted the proposal forthe longer period, but taking into account the various circumstances, its finalstand is that five years period from 24.10.2001 would be adequate, equitableand fair.
The company has taken a stand that it is earning valuable foreignexchange and discontinuous of its business activities would stop earning ofvaluable foreign exchange in addition to rendering large number ofemployees jobless. It is pointed out that some subsisting contracts are thereand infact there is possibility of extracting 342 million tons of primary ores,in addition to 119 million tons of secondary weathered ores. In fact, thecompany's request is for permitting activities in some additional areas sothat the primary ores can be extracted and exported in addition to thesecondary weathered ores.
The main thrust of the Company's plea relating to environmentalissues which was highlighted by Shri Venugopal during hearing of theapplication was that the Company has taken all possible steps to preserveand conserve nature in its pristine glory. It is eco-friendly as would beevident from the various activities undertaken by it and vast sums of moneyspent for preservation of nature and environment in addition to efforts toprevent pollution. It has received several awards for its admirableachievements in the field of environmental protection. It was submitted thatsustainable development is permissible and is universally acceptedphenomenon. At the time the company was incorporated environmentimpact assessment was conducted and detailed guidelines were formulatedto see that there was least degradation of the environment. The approach wasclearly environmental friendly. The approach in such matters is to see as towhat prevailed when the project was commenced. There has been asubstantial change in the approach and if the contemporaneous factualbackdrop is considered, it will be seen that the company's anxiety was toprotect nature and environment. Further, the various reports submitted byexpert bodies give a lie to the impressions created before the Committeethat there was continued destruction of nature of the flora and fauna by themining activities undertaken by the company. The reality is otherwise. Withreference to a Notification dated 29.5.1982 issued u/s 349 of theMunicipalities Act, it is submitted that the concerned area cannot be atreated to be a forest land. A reference was also made to a decision in State of Bihar Vs. Banshi Ram Modi and Others, to contend thatthe Act has no application.
Learned Amicus Curiae has pointed out that stands of the companyare per se not acceptable. The Committee has granted to the company muchmore than what it deserves. With reference to the report of Shri Valmik, it ispointed out that the situation is so grave that "hands off situation" has cometo play. It is pointed out that the role of the Karnataka State Government andthe Central Government in the Ministry of Environment and Forest is farfrom satisfactory. Even without any Environment Impact Assessment report,stand was taken for granting 20 years renewal period. There is noconsistency in the stand of the State and the Central Governments becauseat one point of time they agreed to renewal period of 20 years andsubsequently turned around to five years period, and then again tookinconsistent stands. All these go to show that there is no proper applicationof mind and without realizing the serious consequences involved,recommendations are being made. In W.P. 337/2000 by order dated14.11.2000, it was, inter-alia, directed as follows:
".....Pending further orders, no de-reservation offorests/sanctuaries/national park shall be effected".
Action of the State Government in excluding land while issuing Notification u/s 35(4) of the Act is in clear violation of this Court's order.
Banshi's Ram's case on which emphasis was laid by the company is notgood law in view of the subsequent decisions of this Court in Ambica Quarry Works v. State of Gujarat and Ors., (1987) 1 SCC 213 . Referencemay also made be made to the decisions in Tarun Bharat Sangh, Alwar Vs. Union of India and others, , Tarun Bharat Sangh, Alwar Vs. Union of India and others, and tworeported orders in T.N. Godavarman Thirumulkpad Vs. Union of India and others, and T.N. Godavarman Thirumulkpad Vs. Union of India and others, . The stand of the company thatNotification dated 29.5.1982 excluded the land in question from being forestland is clearly untenable in view of the Section 2(ii) of the Forest(Conservation) Act, 1980 (in short the 'Conservation Act').
The seminal issue involved is whether the approach should be "dollarfriendly" or "eco friendly".
'Environment' is a difficult word to define. Its normal meaning relatesto the surroundings, but obviously that is a concept which is relatable towhatever object it is which is surrounded. Einstein had once observed, "Theenvironment is everything that isn't me." About one and half century ago, in1854, as the famous story goes the wise Indian Chief of Seattle replied to theoffer of the great White Chief in Washington to buy their land. The reply isprofound. It is beautiful. It is contains the wisdom of the ages.It is the first ever and the most understanding statement on environment.The whole of it is worth quoting as any extract from it is to destroy itsbeauty.
"How can you buy or sell the sky, the warmth ofthe land? The idea is strange to us.
If we do not own the freshness of the air and thesparkle of the water, how can you buy them?
Every part of the earth is sacred to my people.Every shining pine needle, every sandy shore, every mistin the dark woods, every clearing and humming insect isholy in the memory and experience of my people. Thesap which courses through the trees carries the memoriesof the red man.
'the white man's dead forget the country of theirbirth when they go to walk among the stars. Our deadnever forget this beautiful earth, for it is the mother of thered man. We are part of the earth and it is part of us.The perfumed flowers are our sisters; the horse, the greateagle, these are out brothers. The rocky crests, the juicesin the meadows, the body heat of the pony, and man - allbelong to the same family.'
So, when the Great Chief in Washington sendsword and he wishes to buy our land, he asks much of us.The Great Chief sends word he will reserve us a place sothat we can live comfortably to ourselves. He will be ourfather and we will be his children. So we will consideryour offer to buy our land. But it will not be easy. Forthis land is sacred to us.
This shining water moves is the streams and riversis not just water but the blood of our ancestors. If we sellyou land, you must remember that it is sacred, and youmust teach your children that it is sacred and that eachghostly reflection in the clear water of the lakes tells ofevents and memories in the life of my people. Thewater's murmur is the voice of my father's father.
The rivers are our brothers, they quench out thirst.The rivers carry our canoes, and feed our children. If wesell you our land you must remember, and teach yourchildren, that the rivers are our brothers, and yours andyou must henceforth give the kindness you would giveany brother.
We know that the white man does not understandour ways. Once portion of land is the same to him as thenext, for he is a stranger who comes in the night andtakes from the land whatever he needs. The earth is nothis brother but his enemy and when he has conquered it,he moves on. He leaves his father's graves behind, andhe does not care.
He kidnaps the earth from his children. Hisfather's grave and his children's birthright are forgotten.He treats his mother, the earth, and his brother, the sky,as things to be bought, plundered, sold like sheep orbright beads. His appetite will devour the earth and leavebehind only a desert.
I do not know. Our ways are different from yourways. The sight of your cities pains the eyes of the redman. But perhaps it is because the red man is a savageand does not understand.
There is no quiet place in the white man's cities.No place to hear the unfurling of leaves in spring or therustle of in insect's wings. But perhaps it is because I ama savage and do not understand. The clatter only seemsto insult the ears. And what is there is life if a mancannot hear the lonely cry of the whippoorwill or thearguments of the frogs around a pond at night? I am a redman and do not understand. The Indian prefers the softsound of the wind darting over the face of a pond, and thesmell of the wind itself, cleansed by a mid-day rain, orscented with the pinion pine.
The air is precious to the red man, for all thingsshare the same breath - the beast, the tree, the man, theyall share the same breath. The white man does not seemto notice the air he breathes. Like a man lying for manydays. He is numb to the stench. But if we sell you ourland, you must remember that the air is precious to us,that the air shares its spirit with all the life it supports.
The wind that gave our grandfather his first breath alsoreceives the last sign. And if we sell you our land, youmust keep it apart and sacred as a place where even thewhite man can go to taste the wind that is sweetened bythe meadow's flowers.
So we will consider your offer to buy our land. Ifwe decide to accept, I will make one condition. Thewhite man must treat the beasts of this land as hisbrothers.
I am a savage and I do not understand any otherway. I have seen thousand rotting buffaloes on theprairie, left by the white man who shot them from apassing train. I am a savage and I do not understand howthe smoking iron horse can be more important than thebuffalo that we kill only to stay alive.
What is man without the beasts? If all the beastswere gone, man would die from a great loneliness ofspirit. For whatever happens to the beasts soon happensto man. All things are connected.
You must teach your children that the groundbeneath their feet is the ashes of our grandfathers, so thatthey will respect the land. Tell your children that theearth is rich with the lives of our kin. Teach yourchildren what we have taught our children, that the earthis our mother. Whatever befalls the earth befalls the sonsof the earth. If man spit upon the ground, they spit uponthemselves.
This we know: The earth does not belong to man,man belongs to the earth. This we know: All things areconnected like the blood which unites one family. Allthings are connected.
Whatever befalls the earth befalls the sons of theearth. Man did not wave the web of life; he is merely astrand in it. Whatever he does to the web he does tohimself.
Even the white man, whose God walks and talkswith him as friend to friend cannot be exempt from thecommon destiny. We may be brothers after all. We shallsee. One thing we know, which the white man may oneday discover - our God is the same God. You may thinknow that you own him as you wish to own our land; butyou cannot. He is the God of Man, and his compassion isequal for the red man and white. This earth isprecious to him, and to harm the earth is to heapcontempt on the creator. The white too shall passperhaps sooner than all other tribes. Contaminate yourbed and you will one night suffocate in your own waste.
But in your perishing you will shine brightly, firedby the strength of the God who brought you this land andfor some special purpose gave you dominion over thisland and over the red man. That destiny is a mystery tous for we do not understand when the wild buffaloes areslaughtered, the wild horses are tamed, the secret cornersof the forest heavy with scent of many men and the viewof the ripe hills blotted by talking wires. Where is thethicket? Gone, where is the eagle? Gone. The end ofliving and the beginning of survival."
It would be hard to find out such dawn to earth description of nature."Nature hates monopolies and knows no exception. It has always somelevelling agency that puts the overbearing, the strong, the rich, the fortunatesubstantially on the same ground with all others" said ZarathustraEnvironment is polycentric and multi-facet problem affecting the humanexistence. The Stockholm Declaration of United Nations on HumanEnvironment, 1972, reads its Principle No. 3, inter-alia, thus:
"Man has the fundamental right to freedom,equality, and adequate conditions of life. In anenvironment of equality that permits a life of dignity andwell being and bears a solemn responsibility to protectand improve the environment for present and futuregenerations."
The Declaration, 'therefore, says that' in the developing countries,most of the environmental problems are caused by underdevelopments. TheDeclaration suggests to safe actions with prudent care for ecological balance.It is necessary to avoid massive and irreversible harm to the earthlyenvironment and strife for achieving present generation and the posterity abetter life is an environment more in keeping with the needs and hopes. Inthis context immediately comes to mind the words of Pythagoras who said:
"For so long as man continues to be the ruthlessdestroyer of lower living beings, he will never knowhealth or peace. For so long as men massacre animals,they will kill each other. Indeed, they who sow the seedsof murder and pain cannot reap joy and love."
Article 48A in Part IV (Directive Principles) of the Constitution ofIndia, 1950 brought by the Constitution (42nd Amendment) Act, 1976,enjoins that "State shall endeavour to protect and improve the environmentand to safeguard the forests and wild life of the country." Article 47 furtherimposes the duty on the State to improve public health as its primary duty.Article 51-A(g) imposes "a fundamental duty" on every citizen of India toprotect and improve the natural "environment" including forests, lakes,rivers and wild life and to have compassion for living creatures. The word"environment" is of broad spectrum which brings within its ambit "hygienicatmosphere and ecological balance." It is, therefore, not only the duty of theState but also the duty of every citizen to maintain hygienic environment.The State, in particular has duty in that behalf and to shed its extravagantunbridled sovereign power and to forge in its policy to maintain ecologicalbalance and hygienic environment. Article 21 protects right to life as afundamental right. Enjoyment of life and its attainment including their rightto life with human dignity encompasses within its ambit, the protection andpreservation of environment, ecological balance free from pollution of airand water, sanitation without which life cannot be enjoyed. Any contra actsor actions would cause environmental pollution. Therefore, hygienicenvironment is an integral facet of right to healthy life and it would beimpossible to live with human dignity without a humane and healthyenvironment. Environmental protection, therefor, has now become a matterof grave concern for humane existence. Promoting environmental protectionimplies maintenance of the environment as a whole comprising the man-madeand the natural environment. Therefore, there is constitutionalimperative on the Central Government, State Governments and bodies likeMunicipalities, not only to ensure and safeguard proper environment but alsoan imperative duty to take adequate measure to promote, protect andimprove the environment man-made and natural environment.
19 Industrialisation, urbanisation, explosion of population, over-exploitationof resources, depletion of traditional sources of energy and rawmaterials, and the search for new sources of energy and raw materials, thedisruption of natural ecological balances, the destruction of multitude ofanimal and plant species for economic reasons and sometimes for no goodreason at all are factors which have contributed to environmentaldeterioration. While the scientific and technological progress of man hasinvested him with immense power over nature, it has also resulted in theunthinking use of the power, encroaching endlessly on nature. If man is ableto transform deserts into oasis, he is also leaving behind deserts in the placeof oasis. In the last century, a great German materialist philosopher warnedmankind: "Let us not, however, flatter ourselves over much on account ofour human victories over nature. For each such victory nature takes itsrevenge on us. Each victory, it is true, in the first place brings about theresults we expected, but in the second and third places it has quite different,unforeseen effects which only too often cancel the first. Ecologists are ofthe opinion that the most important ecological and social problems is thewide spread disappearance all over the world of certain species of livingorganisms. Ecologists forecast the extinction of animal and plant species ona scale that is incompatibly greater than their extinction over the course ofmillions of years. It is said that over half the species which became extinctover the last 2000 years did so after 1990. The International Association forthe Protection of Nature and Natural Resources calculates that now, onaverage, one species or sub-species is lost every year. It is said thatapproximately 1000 birds and animal species are facing extinction atpresent. It is for this that the environmental questions have become urgentand they have to be properly understood and squarely met by man. Natureand history are two components of the environment in which we live, moveand prove ourselves. This Court in Shri Sachidanand Pandey and Another Vs. The State of West Bengal and Others, and Virender Gaur and Others Vs. State of Haryana and Others, has highlighted these aspects.
Environmental law is an instrument to protect improve theenvironment and to control or prevent any act or omission polluting or likelyto pollute the environment. In view of the enormous challenges thrown bythe industrial revolution, the legislatures throughout the world are busy inthis exercise. Many have enacted laws long back and they are busy inremodelling the environmental law. The others have moved their law makingmachineries in this direction except the under-developed States who haveyet to come in this wave length. India was one of those few countries whichpaid attention right from the ancient time down to the present age and tilldate, the tailoring of the existing law to suit the changing conditions is goingon. The problem of law-making and amending is a difficult task in this area.There are a variety of colours of this problem. For example, the industrialrevolution and the evolution of certain cultural and moral values of thehumanity and the rural and urban area developments in agriculturaltechnology, waste, barren or industrial belts; developed, developing andunder-developed parts of the lands; the rich and poor Indians; the populationexplosion and the industrial implosion; the people's increasing awarenessand the decreasing State Exchequer; the promises in the political manifestosand the State's development action. In this whole gamut of the problems theTiwari Committee came out with the date that we have in India "nearly fivehundred environmental laws" and the Committee pointed out that nosystematic study had been undertaken to evaluate those legislativedevelopments. Some legal controls and techniques have been adopted by thelegislatures in the field of Indian Environmental Laws. Different legislativecontrols right from the ancient time, down to the modern period makeinteresting reading. Attention has to be paid to identify the areas of greatconcern to the legislature; the techniques adopted to solve those problems;the pollutants which required continuous exercise; the role of legislatureand people's participation outside. These are some of many areas whichattract the attention in the study of history of the Indian Environmental Law.
Since time immemorial, natural objects like rivers enjoyed a highposition in the life of the society. They were considered as Goddesseshaving not only the purifying capacity but also self-purifying ability.Fouling of the water of a river was considered a sin and it attractedpunishments of different grades which included, penance, outcasting, fine,etc. The earth or soil also equally had the same importance, and the ancientliterature provided the means to purity the polluted soil. The above aresome of the many illustrations to support the view that environmentalpollution was controlled rigidly in the ancient time. It was not an affairlimited to an individual or individuals but the society as a whole accepted itsduty to protect the environment. The 'dharma' of environment was tosustain and ensure progress and welfare of all. The inner urge of theindividuals to follow the set norms of the society, motivated them to allowthe natural objects to remain in the natural state. Apart from this motivation,there was the fear of punishment. There were efforts not just to punish theculprit but to balance the eco-systems. The noteworthy development in thisperiod was that each individual knew his duty to protect the environmentand he tried to act accordingly. Those aspects have been highlighted by alearned author C.M. Jariwala in his article "Changing Dimensions of theIndian Environmental Law" in the book "Law and Environment" by P.Leelakrishnan.
The Economic and Special Council of the United Nations passed aresolution on 30th July, 1968 on the question of convening an InternationalConference on problems of human environment. In the United NationsConference on Human Environment at Stockholm form 6th to 16th June,1972, proclamation was made on United Nations on Human Environment. Itwas stated in the proclamation in these profound words:
"Man is both creature and molder of hisenvironment which gives his physical sustenance andaffords him the opportunity for intellectual, moral, socialand spiritual growth. In the long and tortuous evolutionof the human race on this planet a stage has been reachedwhen through the rapid acceleration of science andtechnology, man has acquired the power to transform hisenvironment in countless ways and on an unprecedentedscale. Both aspects of men's environment, the naturaland the man made, are essential to his well being and tothe enjoyment of basic human rights even the right to lifeitself.
The protection and improvement of the humanenvironment is a major issue which affects the well beingof people and economic development throughout theworld, it is the urgent desire of the peoples of the wholeworld and the duty of all Governments."
When the necessity to promote the environment turned grave, doubtwas expressed by some commentators whether the issue of the environmentwould last. They have been proved wrong, since it is clearly one of the bigissues, perhaps the biggest issue of the 1990s. It is big issue in politicalterms, since protection of the environment is high on most people's prioritiesfor the 1990s. As a result political parties and Governments are falling overeach other in their eagerness to appear green, even if as yet their actionsrarely match their rhetoric. It is big in terms of the size of the problem facedand the solutions required; global warning, the destruction of the ozonelayer, acid rain, deforestation, overpopulation and toxic waste are all globalissue which require an appropriately global response. It is big in terms ofthe range of problems and issues - air pollution, water pollution, noisepollution, waste disposal radioactivity, pesticides, countryside protection,conservation of wildlife - the list is virtually endless. As observed by SimonBell and Stuart Bell in 'Environmental Law':
".....In the words of the White Paper on theEnvironment. This Commons Inheritance (cm. 1200,1990) the issues range 'from the street corner to thestratosphere.' Finally, it is big in terms of the knowledgeand skills required to understand a particular issue. Lawis only one element in what is a major cross-disciplinarytopic. Lawyers need some understanding of thescientific, political and economic processes involved inenvironmental degradation. Equally all those whoseactivities and interests relate to the environment need toacquire an understanding of the structure and content ofenvironmental law, since it has a large and increasingrole to play in environmental protection."
Apart from the direct cost to business of complying with stricterregulatory controls, the potential liabilities for non-compliance are alsoincreasing. These liabilities fall into five general categories:
(a) Criminal liabilities'
The number of criminal offences for non-compliance withenvironmental legislation is immense, and in recent years the regulationagencies have shown an increased willingness to resort to prosecution.Private prosecution is also a possibility. Fines will be the normal penalty,though in a number of cases sentences of imprisonment have been imposed(there is normally a potential personal liability for directors and seniormanagers). Maximum fine levels have risen in recent years, as have actuallevels of fines imposed.
(b) Administrative sanctions:
In most regulatory systems there is a range of options available to theregulatory, including variation, suspension or revocation of a licence. Sincethese steps may lead to the closure of a plant, they are obviously of greatimportance.
(c) Clean up costs:
In most environmental legislation there is a power to clean up after apollution incident and receive the cost from the polluter or (in some cases)the occupier.
(d) Civil liability:
There is growing interest in the toxic torts, although many of theactions have in fact been around for a long time. Many environmentalactions rest upon strict liability. Although liability may often be difficult to establish, the size of claims may be very high indeed.
(e) Adverse publicity:
In practice the publicity attracted as a result of infringements of the law may be as costly as any direct costs.
The tide of judicial considerations in environmental litigation in Indiasymbolizes the anxiety of Courts in finding out appropriate remedies forenvironmental maladies. At global level, the right to live is now recognizedas a fundamental right to an environment adequate for heath and well beingof human beings. (See World Commission on Environment andDevelopment - Our Common Future (1987). To commemorate the tenthanniversary of the Stockholm Conference, the World Community of Statesassembled in Nairobi (May 10-18, 1982) to review the action taken on toimplement Stockholm Declaration. It expressed serious concern about thestate of environment world wide and recognized the urgent need ofintensifying the effort at the global, regional and national levels to protectand improve it.
Progress and pollution go together. As this Court observed in M.C. Mehta and Another Vs. Union of India (UOI) and Others, , whenscience and technology are increasingly employed in producing goods andservices calculated to improve the quality of life, there is certain element ofhazard or risk inherent in the very use of science and technology and it is notpossible to totally eliminate such hazard or risk altogether. We can onlyhope to reduce the element of hazard or risk to the community by taking allnecessary steps for locating such industries in a manner which would poseleast risk of danger to the community and maximizing safety requirements.As observed in the United Nations Conference held at Stockholm in June,(SIC) economic and social development was essential for ensuring afavourable living and working environment for man and for creatingcondition on earth that were necessary for the improvement of the quality oflife.
The tragedy of the predicament of the civilized man is that 'Everysource from which man has increased his power on earth has been used todiminish the prospects of his successors. All his progress is being made atthe expense of damage to the environment which he cannot repair andcannot foresee'. There is increase in awareness of the compelling need torestore the serious ecological imbalances introduced by the depredationsinflicted on nature by man. The state to which the ecological imbalance andthe consequent environmental damage have reached is so alarming thatunless immediate, determined and effective steps were taken, the damagemight become irreversible. In this foreword to International Wild Life Law,M.R. M. Prince Philip the Duke of Edinburgh said:
"Many people seem to think that the conservation ofnature is simply a matter of being kind to animals andenjoying walks in the country-side. Sadly, perhaps, it is agreat deal more complicated than that ......As usualwith all legal systems, the crucial requirement is for theterms of the conversions to be widely accepted andrapidly implemented.....Regretfully progress in thisdirection is proving disastrously slow." (SeeInternational Wildlife Law by Simon Lyster, Cambridge,Grotius Publications Ltd. 1985 Edn.)
The United National General Assembly adopted on October 29, 1982.the World Charter for Nature. The Chapter declares the Awareness that:
"(a) Mankind is a part of nature and life depends on theuninterrupted functioning of natural systems whichensure the supply of energy and nutrients.
(b) Civilization is rooted in nature, which has shapedhuman culture and influenced all artistic and scientificachievement, and living in harmony with nature givesman the best opportunities for the development of hiscreativity, and for rest and recreation."
Towards the end of his reign, King Ashoka in the third century B.C.issued a decree that it has a particularly contemporary ring in the matter ofpreservation of wild life and environment. He had written:
"Twenty-six years after my coronation, I declare that thefollowing animals were not to be killed, parrots, mynas,the aruna, ruddy geese, wild geese, the mandimukha,cranes, bats, queen, ants, terrapins, boneless fish,rhinoceroses.....and all quadrupeds which are no usefulor edible.....Forest must not be burned."
To protect and improve the environment is a constitutional mandate.It is a commitment for a country wedded to the ideas of a welfare State. Theworld is under an impenetrable cloud. In view of enormous challengesthrown by the Industrial revolution,the legislatures throughout the world arebusy in their exercise to find out means to protect the world. Everyindividual in the society has a duty to protect the nature. People worship theobject of nature. The trees, water, land and animals had gained importantposition in the ancient times. As Manu VIII, page 282 says differentpunishments were prescribed for causing injuries to plants. Kautilya went astep further and fixed the punishment on the basis of importance of the partof the tree. (See Kautilya III, XIX, 197)
As observed by this Court in Rural Litigation and Entitlement Kendra and Others Vs. State of Uttar Pradesh and Others, , natural resources have got tobe tapped for the purpose of social development but one cannot forget at thesame time that tapping of resources has to be done with requisite attentionand care so that ecology and environment may not be affected in any seriousway; there may not be any depletion of water resources and long-termplanning must be undertaken to keep up the national wealth. It has always tobe remembered that these are permanent assets of mankind and are notintended to be exhausted in one generation.
The Academy Law Review at pages 137-138 says that a recentsurvey reveals that every day millions of gallons of trade wastes andeffluent are discharged into the rivers, steams, take and sea etc.Indiscriminate water pollution is a problem all over the world but is nowacute in densely populated industrial cities. Our country is no exception tothis. Air Pollution has further added to the intensity and extent of theproblem. Every year millions of tons of gaseous and particulate pollutantsare injected into the atmosphere, both through natural processes and as adirect result of human activity. Scientists have pointed out that earth'satmosphere cannot absorb such unlimited amount of pollutant materialswithout undergoing changes which may be of an adverse nature with respectto human welfare. Man in order to survive in his planetary home will haveto strike the harmonious balance with nature. There may be boundlessprogress scientifically which may ultimate lead to destruction of man'svalued position in life. The Constitution has laid the foundation of Articles48A and 51A for a jurisprudence of environmental protection. Today, theState and the citizen are under a fundamental obligation to protect andimprove the environment, including forests, lakes rivers, wildlife and tohave compensation for living creatures.
A learned Jurist has said, the Rig Veda praises the beauty of the dawn(usha) and worships Nature in all its glory. And yet today a bath in theYamuna and Ganga is a sing against bodily health, not a salvation for the soul-so polluted and noxious are these 'Holy' waters now. "One hospital bedout of four in the world is occupied by a patient who is ill because ofpolluted water.....Provision of a sate and convenient water supply is the mostimportant activity that could be undertaken to improve the health of peopleliving in rural areas of the developing world." (W.H.O.) "Nature never didbetray. That heart that loved her." (Wordsworth). The anxiety to save theenvironment manifested in the Constitution (Forty-Second Amendment)Act, 1976 by the introduction of a specific provision for the first time to"protect and improve" the environment. Man is Nature's best promise andworst enemy. If industry is necessity, pollution inevitable. Since progressand pollution go together, there can be no end of progress, and consequently,no escape from pollution. If industry is necessary evil, pollution surestsufferance. Several enactments have been made to combat pollution."Pollution" is noun derived from the transitive verb "pollute" which means to make foul or unclean, dirty, to make impure or morally unclean. InHalsbury's Laws of England (Forth Edition, Volume 38,para 66)"pollution" means the direct or indirect discharge by man of substances orenergy into the aquatic environment resulting in hazard to human health,harm to living resources and aquatic ecosystems, damage to amenities oninterference with other legitimate use of water.
In Divisional Forest Officer and Others Vs. S. Nageswaramma, it was observed that the renewal of lease is not a vested right of the lessee. There is a total prohibition against the grant of mining lease in aforest area without concurrence of the Central Government. As wasobserved by this Court in M.C. Mehta Vs. Kamal Nath and Others, , our legal system based on English Common Law includes thepublic trust doctrine as part of its jurisprudence. The State is the trustee of allnatural resources which are by nature meant for public use and enjoyment.Public at large is the beneficiary of the sea-shore, running waters, airs,forests and ecologically fragile lands. The State as a trustee is under a legalduty to protect the natural resources. These resources meant for public usecannot be converted into private ownership.
The aesthetic use and the pristine glory cannot be permitted tobe eroded for private, commercial or any other use unless the courts find itnecessary, in good faith, for public good and in public interest to encroachupon the said resources.
It cannot be disputed that no development is possible without someadverse effect on the ecology and environment, and the projects of publicutility cannot be abandoned and it is necessary to adjust the interest of thepeople as well as the necessity to maintain the environment. The balance hasto be struck between the two interests. Where the commercial venture orenterprise would bring in results which are far more useful for the people,difficulty of a small number of people has to be bypassed. The comparativehardships have to be balanced and the convenience and benefit to a largersection of the people has to get primacy over comparatively lesser hardship.
In this background, the Environment Impact Assessment reports are ofgreat importance. The Council on European Economic Committee in theirdirective to the member States highlighted objectives of such assessments as follows:
"The effect of a project on the environment mustbe assessed in order to take action of the concerns toprotect human health, to contribute by means of a betterenvironment to the quality of life, to ensure maintenanceof the diversity of species and to maintain thereproductive capacity of the eco-system as a basicresource of life."
A few decisions taken at the Convention on Biological Diversity dated5th June, 1992 would be relevant.
The Preamble, inter-alia, contains the following:
"Concerned that biological diversity is beingsignificantly reduced by certain human activities. Awareof the general lack of information and knowledgeregarding biological diversity and of the urgent need todevelop scientific, technical and institutional capacities toprovide the basic understanding upon which to plan andimplement appropriate measures. Nothing that it is vital toanticipate, prevent and attack the causes of significantreduction or loss of biological diversity at source. Nothingfurther that the fundamental requirement for theconservation of biological diversity is the in-situconservation of ecosystems and natural habitats and themaintenance and recovery of viable populations ofspecies in their natural surroundings."
Articles 1, 6, 7 and 14(a) are also important.
Article 1: Objectives -
The objectives of this Convention to be pursued inaccordance with its relevant provisions are theconservation of biological diversity, the sustainable useof its components and the fair and equitable sharing ofthe benefits arising out of utilization of geneticresources including by appropriate access to geneticresources and by appropriate transfer of relevant technologies, taking into account all rights over thoseresources and to technologies, and by appropriatefunding.
Article 6: General measures for conservation andsustainable use-
Each contracting party shall, in accordance with itsparticular conditions and capabilities:
(a) develop national strategies, plans orprogrammes for the conservation and sustainable use ofbiological diversity or adopt for this purpose existingstrategies, plans or programmes which shall reflect, interalia, the measures set out in this Convention relevant tothe contracting party concerned; and
(b) integrate, as far as possible and asappropriate, the conservation and sustainable use ofbiological diversity into relevant sectoral or cross-sectoral plans, programmes and policies.
Article 7: Identification and Monitoring Each contracting party shall, as far as possible andas appropriate, in particular for the purposes of Articles 8 to 10:
(a) identify components of biological diversityimportant for its conservation and sustainable use havingregard to the indicative list of categories set down inAnnexure 1;
(b) Monitor, through sampling and othertechniques, the components of biological diversityidentified pursuant to Sub-paragraph (a) above, payingparticular attention to those requiring urgent conservationmeasures and those which offer the greatest potential forsustainable use;
(c) identify processes and categories ofactivities which have or are likely to have significantadverse impacts on the conservation and sustainable useof biological diversity, and monitor their effects throughsampling and other techniques; and
(d) maintain and organize, by any mechanismdata, derived from identification and monitoringactivities pursuant to sub-paragraphs (a), (b) and (c)above.
Article 14(a): Impact Assessment and MinimizingAdverse Impacts-
Each contracting party, as far as possible and asappropriate, shall:
(a) introduce appropriate procedures requiringenvironment impact assessment of its proposed projectsthat are likely to have significant adverse effects onbiological diversity with a view to avoiding orminimizing such effects and, where appropriate, allowfor public participation in such procedures."
Sustainable development is essentially policy and strategy forcontinued economic and social development without detriment to theenvironment and natural resources on the quality of which continued activityand further development depend. Therefore, while thinking of thedevelopmental measures the needs of the present and the ability of the futureto meet its own needs and requirements have to be kept in view. Whilethinking of the present, the future should not be forgotten. We ow a duty tofuture generations and for a bright today, bleak tomorrow cannot becountenanced. We must learn from our experiences of past to make both thepresent and the future brighter. We learn from our experiences, mistakesfrom the past, so that they can be rectified for a better present and the future.It cannot be lost sight of that while today is yesterday' tomorrow, it istomorrow's yesterday.
The greenery of India should not be allowed to be perished, to bereplaced by deserts. Ethiopia which at a point of time was considered to beone of the greenest countries, is virtually a vast desert today.
The Union Government framed National Forest Policy in 1988.Though the basic objectives are very laudable, it is sad to note that it hasvirtually been confined in papers containing it, and not much has been doneto translate them into reality. Nevertheless, it reflects anxiety of the UnionGovernment to protect and preserve natural forests with vast variety of floraand fauna, representing biological diversity and genetic resources of thecountry.
Duty is cast upon the Government under Article 21 of the Constitutionof India to protect the environment and the two salutary principles whichgovern the law of environment are: (i) the principles of sustainabledevelopment and (ii) the precautionary principle. It needs to be highlightedthat the Convention on Biological Diversity has been acceded to by ourcountry and, therefore, it has to implement the same. As was observed bythis Court in Vishaka and others Vs. State of Rajasthan and Others, , in the absence of any inconsistency between the domestic law and theinternational conventions, the rule of judicial construction is that regardmust be had to international convention and norms even in construing thedomestic law. It is, therefore, necessary for the Government to keep in viewthe international obligations while exercising discretionary powers under theConservation Act unless there are compelling reasons to depart therefrom.
The United Nations Conference on Human Environment held inStockholm during June 1972 brought into focus several alarming situationsand highlighted the immediate need to take steps to control menace ofpollution to the Mother Earth, air and of space failing which, the Conferencecautioned the mankind, it should be ready to face the disastrousconsequences. The suggestions noted in this Conference were reaffirmed insuccessive Conference followed by Earth Submit held at Rio-de Janeiro(Brazil) in 1992.
So far as the effect of Rule 24B of the Minerals Rules is concerned, itis to be noted that Section 2(ii) of the Conservation Act rules out non-forestactivities. The Section begins with a non-obstante clause providing thatnotwithstanding anything contained in any other law for the time being inforce in a State, no State Government or other authority shall make, exceptwith the prior approval of the Central Government any order of the natureenumerated in the provisions. Section 3 of the Conservation Act deals withconstitution of Advisory Committee and Section 4 deals with power to makerules. Rules 4, 5 and 6 of the Forest Conservation Rules, 1981 (in short'Conservation Rules') are relevant. Rules 4 deals with procedure to makeproposal by a State Government or their authority. Rule 5 deals with thepowers of the Committee to advise on proposals received by the CentralGovernment. The Committee referred to therein is the one constituted underSection 3 of the Act. Rule 6 deals with action of the Central Government onthe advise of the Committee. Admittedly, the Central Government has notaccorded the approval for use of any forest land or any portion thereof forbeing used for any non forest purpose. That being so, Rule 29(b) of theMineral Rules cannot be of any assistance to the company. So far as theorder dated 14.11.2000 in W.P. 337/2000 is concerned, it is clear therefromthat de-reservation of forests, sanctuaries and national parks was prohibited. Therefore, exclusion of company's land in terms of the Notification underSection 35(4) of the Act though same was being used for mining by thecompany, was not in order to that extent.
So far as the letter dated 6th July, 1999 of the Government ofKarnataka is concerned, it does not in any way help the company and on thecontrary makes its case more brittle. A few paragraphs of the said letter needto be noted here:
x x x x x "Considering the above and as the present lease will expire on 24.7.99, the P.C.C.F. has recommended for grant of temporary working permission to the above company to carry out the mining activities for a period of 2 years so as to avoid hardship to it, which is a Government of India Undertaking. Further, Environment Impact Assessment and studies on impact of mining on flora and fauna in this sensitive area is to be carried out by the reputed Environmental Institute and Wildlife Institute, respectively that is by Environmental Research Institute, Nehrunagar, Nagpur (Maharashtra) and Wild Life Institute, Dehradun (Uttar Pradesh). After these studies are conducted and based on the recommendations to be made by these institutes to minimize the environmental damage it can be decided whether to allow the mining and renew the lease or otherwise in favour of M/s. Kudremukh Iron Ore Company Ltd., in this sensitive area of Western Ghat Region.
x x x x x Under the circumstances explained above, I am directed to request you to kindly communicate the approval of Government of India on the following proposals:
(i) for renewal of lease of 1452.74 hectares of forest land which is already broken up in favour of M/s. Kudremukh Iron Ore Company Ltd for a period of 20 years with effect from 25.7.1999.
(ii) to grant temporary working permission in the already broken up area of 1452.74 hectares forest land to the above company to carry out mining activities for a period of 2 years since the lease of forest land will expire on 24.7.1999."
x x x x x
It is an accepted fact that the Environment Impact Assessment Reports of the two named institutes have not been obtained. Therefore, in reality there was no Environment Impact Assessment report either before the State or the Central Government. Further, the request of the State Government was to grant temporary working permission in respect of already broken up area, pending fulfilment of conditions enumerated:
Coming to plea that in case of a renewal thee is no requirement of compliance of Section 2 of the Conservation act, the stand is clearly untenable in view of decisions in Ambica Quarry's case (supra) and Rural Litigation and Entitlement Kendra Vs. State of U. P., where at page 2201 it was observed that 'whether it is a case of first grant or renewal following exercise of option by the lessee, the compliance of Section 2 of the Conservation Act is necessary as a condition precedent'. It may be noted here that the area in question was declared to be a reserved area in 1960 and in 1987 the Notification u/s 35(1) was issued.
It is of significance that in the present case the Forest Advisory Committee under the Conservation Act on 11.7.2001 examined the renewal proposal in respect of the company's mining lease. It recommended that the mining may be allowed for a period of four years i.e. upto the year 2005 by which time the weathered secondary ore available in the already broken up area would be exhausted. The Ministry of Environment and Forests deferred a formal decision on the said recommendation as the matter was pending before this Court.
On consideration of the materials on record we find no reason to vary the majority view of the Committee, a statutory one when its findings and conclusions are based on assessments of the factual aspects and after duly considering the materials and Reports placed before it by the parties. We have also taken note of the period indicated by the Forest Advisory Committee, which is also a statutory Committee.
Taking note of the factual background and the legal position highlighted above, we think it proper to accept the time period fixed by the Forest Advisory Committee constituted u/s 3 of the Conservation Act. That means mining should be allowed till the end of 2005 by which time the weather I secondary ore available in the already broken area should be exhausted. This is, however, subject to fulfilment of the recommendations made by the Committee on eco-logical and other aspects.
The modalities as to how these have to be worked out shall be done in the manner recommended by the Committee. It was submitted by the learned counsel for the State of Karnataka that the recommendation made about transfer of buildings and other infrastructure to the Forest Department of the State Government at book value is not acceptable to it. This is a matter which can be considered by the Committee on an appropriate motion being made by the State before it. The modalities to be adopted to effectuate the order passed by this Court and recommendations of the Committee shall be worked out by the Ministry of Environment and (SIC) the State Government and the company under the supervision and guidance and monitoring of the Committee.
Before we part with the case, we note with concern that the State and the Central Government were not very consistent in their approach about the period for which the activities can be permitted. Reasons have been highlighted to justify the somersault. Whatever be the justification, it was but imperative that due application of mind should have been made before taking a particular stand and not to change colour like a Chameleon, and that too not infrequently.
Certain proceedings have been initiated against the company for alleged violation of various statutes. These proceedings shall be considered by the respective forums/Courts in their proper perspective, uninfluenced by any observation made hereinbefore in this judgment.
The interlocutory application is disposed of accordingly.