The Patna Regional Development Authority and Ors

GREEN DECISION UPDATES 2005

Appellants: Brajesh Sharan Sharma Vs. Respondent: The Patna Regional Development Authority and

Ors.: Decided On: 08.07.2004

Appellants: Mohammed Ismail Vs. Respondent: State of Kerala: Decided On: 19.07.2004

Appellants: Netaji Pratisthan Vs. Respondent: Government of Maharashtra, Ministry of Urban

Development and Ors.Decided On: 30.08.2004

Appellants: The Union of India (UOI), rep. by its Secretary to Government, Ministry of Environment

and Forests

Vs.

Respondent: Chennai Metropolitan Development Authority, rep. by its Member Secretary G.

Santhanam: Decided On: 27.08.2004

Appellants: V. Elangovan Vs. Respondent: The Home Secretary, State of Tamil Nadu, The Chairman,

The Tamil Nadu Pollution Control Board, The Commissioner of Police, A. Ganesh, V.D. Balaji and

Kavingar Nandalala: Decided On: 17.09.2004

Appellants: Kondu Dhunda Wakdikar and Anr. Vs. Respondent: Deputy Conservator of Forest and

Ors.:Decided On: 23.09.2004

Appellants: P. Narayana Reddy Vs. Respondent: Mandal Revenue Officer, Morthad Mandal and


Appellants: S. Shareef S/o. Hussain Sab vs. Respondent: The Divisional Forest Officer Wildlife, The

Forest Range Officer Wildlife and The Conservator of Forests:Decided On: 08.10.2004

Appellants: Suo Motu Vs. Respondent: State of Rajasthan and Ors.Decided On: 20.10.2004

Appellants: Ashwani Chobisa Vs. Respondent: Union of India (UOI) and Ors.: Decided On: 20.10.2004

Appellants: The District Forest Officer, Sathyamangalam Division Vs.

Respondent: M. Irulappan: Decided On: 03.11.2004

Appellants: Tamil Nadu Pollution Control Board rep. by its Member Secretary

Vs.

Respondent: The State Human Rights Commission rep. by its Member Hon'ble R. Rathinasami,

Association of Radio and Television Engineering Employees All India Radio rep. by its Unit Secretary

and S.P. Muthuraman President, Tamil Manila Congress Youth Wing:Decided On: 04.11.2004

Appellants: Manbodh Mahto Vs. Respondent: Union of India (UOI) and Ors.:Decided On: 04.11.2004

Appellants: Sudarsanam Spinning Mills, Rajapalaiyam Spintext, (EOU Division of Rajapalayam Mills

Ltd.), Sri Vishnu Shankar Mill Ltd. and Sri Ramco Spinners, (A Division of Ramco Industries Ltd.)

Vs.

Respondent: Tamil Nadu Pollution Control Board, rep. by its Member Secretary and The Joint Chief

Environmental Engineer, Tamil Nadu Pollution Control Board,Decided On: 16.11.2004

Appellants: Vedire Venkata Reddy and Ors. Vs. Respondent: Union of India (UOI) and Ors.: Decided

On: 17.11.2004

Appellants: State of Gujarat Vs. Respondent: Mirzapur Moti Kureshi Kassab Jamat and Ors.:Decided

On: 26.10.2005

Appellants: T.N. Godavarman Thirumulpad Vs. Respondent: Union of India (UOI) and Ors.Decided

On: 26.09.2005

Appellants: Forum, Prevention of Envn. and Sound Pollution

Vs. Respondent: Union of India (UOI) and Anr.: Decided On: 28.10.2005

Appellants: Hindalco Industries Ltd. Vs. Respondent: State of Jharkhand and Ors.:Decided On:

09.05.2005

Appellants: Hindustan Coca-Cola Beverages (P) Ltd. Vs. Respondent: Perumatty Grama

Panchayat:Decided On: 01.06.2005

Appellants: Federation of Pammal and Nagalkeni Welfare Association, rep. by its General Secretary,

S.P. Narayanaswami Vs. Respondent: The District Collector, Executive Engineer, Agricultural

Engineering Department and The Executive Officer, Pammal Town Panchayat: Decided On:

21.06.2005

Appellants: O. Fernandes, Co-convener, Coastal Action Network

Vs. Respondent: Union of India (UOI), rep. by its Secretary to Government, Ministry of Environment

and Forests and Ors.:Decided On: 30.06.2005

Appellants: World Wide Fund for Nature India Vs. Respondent: Union of India (UOI)Decided On:

20.07.2005

Appellants: Research Foundation for Science Technology and Natural Resources Policy Vs.

Respondent: Union of India (UOI) and Anr.:Decided On: 05.01.2005

Appellants: Goa Foundation Vs. Respondent: Union of India (UOI):Decided On: 22.02.2005

Appellants: Sushanta Tagore and Ors. Vs. Respondent: Union of India (UOI) and Ors.:Decided On:

03.03.2005

Appellants: In Re: Noise Pollution - Implementation of the Laws for restricting use of loudspeakers

and high volume producing sound systems

Vs. Respondent:

WITH

Appellants: Forum, Prevention of Envn. and Sound Pollution Vs. Respondent: Union of India (UOI)

and Anr.

Appellants: Pavithran Vs. Respondent: District Superintendent of Police: Decided On: 04.01.2005

Appellants: Sundaram Brake Linings Ltd., rep. by its Financial Controller and Secretary

Vs. Respondent: Corporation of Chennai, rep. by its Commissioner and Ors. ANDAppellants: Suriya

Sweets, rep. by its Managing Partner, Mrs. R. Parvathy

Vs. Respondent: Tamilnadu Pollution Control Board, rep. by its Member Secretary and The District

Environmental Engineer, Tamil Nadu Pollution Control Board

Appellants: The State of Maharashtra Vs. Respondent: Sham Namdev Sonawane:Decided On:

10.01.2005

Appellants: Joy Joseph Vs. Respondent: D.F.O.: Decided On: 25.01.2005

Appellants: State of Rajasthan and Ors. Vs. Respondent: Nathu Lal:Decided On: 03.02.2005

Appellants: People Health and Development Council, represented by its Secretary, S.M.

Govindasamy Vs. Respondent: State of Tamil Nadu, represented by Secretary to Government, Forest

and Environment Department and Ors. Decided On: 15.02.2005

AND Appellants: M. Thangavelu Vs. Respondent: The Chairman, Tamil Nadu Pollution Control Board

and Ors.

Appellants: Balakrishnan Nair Vs. Respondent: Government of Kerala:Decided On: 22.02.2005

Appellants: Rudrachari Vs. Respondent: The Principal Chief Conservator of Forest and Ors.: Decided

On: 09.03.2005

Appellants: Kala Singh and Ors. Vs. Respondent: Union of India (UOI) and Ors.:Decided On:

14.03.2005

Appellants: Centre for DNA Fingerprinting and Diagnostic (An Autonomous Centre of the

Department of Biotechnology) Vs. Respondent: A.P. Pollution Control Board and Anr.:Decided On:

16.03.2005

Appellants: Arvind Kumar Dube s/o Shri Parmeshwari Dayal Dube Vs.

Respondent: State of U.P. through Prescribed Authority/Special Secretary, Forest Department, U.P.

Govt. and Ors. Decided On: 17.03.2005

Appellants: J.K. Johnson and Ors. Vs. Respondent: Principal Chief Conservator of Forests and Ors.:

Decided On: 29.03.2005

Appellants: Malayath Vs. Respondent: State of Kerala :Decided On: 06.04.2005

Appellants: The State of Tamil Nadu rep. by its Secretary to Government, Forest and Fisheries

Department and The Ranger, Gulf of Mannar Vs. Respondent: Kaypee Industrial Chemicals (P) Ltd.

rep. by its Managing Director and Ors.:Decided On: 29.03.2005

Appellants: Dr. Jaykrushna Patnaik Vs. Respondent: Divisional Forest Officer, Ghumsur North Division

and Anr.:Decided On: 20.04.2005

Appellants: Jackson and Company Vs. Respondent: Union of India (UOI) and Anr. WITH Appellants:

Manoj Gupta Vs. Respondent: Central Pollution Control Board and Anr.Decided On: 07.04.2005

Appellants: Dindigul Spinners Association (Regn. No. 330/97) rep. by its Adviser K. Venkatachalam

Vs. Respondent: Secretary to Government of Tamil Nadu, Environment and Forests Department and

The Chairman, Tamil Nadu Pollution Control Board: Decided On: 26.04.2005

IN THE HIGH COURT OF PATNA

APPEALNO . WJC No. 12239 of 2003

Appellants: Brajesh Sharan Sharma s. Respondent: The Patna Regional Development Authority and

Ors.: Decided On: 08.07.2004

Hon'ble Judges:

Ravi S. Dhavan, C.J. and Shashank Kr. Singh, J.

Counsels:

For Appellant/Petitioner/Plaintiff: Anil Kr. Singh and Rajeev Ranjan, Advs.

For Respondents/Defendant: S.P. Singh and V.B. Ambastha, Advs.

For State: S.K. Ghose, Adv.

Subject: Property

Subject: Environment

Catch Words:

Certiorari, Clean Up, Damage, Deposit, Drinking Water, Interest, Investigation, Licence, Notice,

Objection, Occupation, Owner, Public, Registered, Registration, Statutory Authority

Acts/Rules/Orders:

Constitution of India - Article 243ZD; Architects Act, 1972; Constitution of India (73rd Amendment)

Act; Constitution of India (74th Amendment) Act

Cases Referred:

M.I. Builders Pvt. Ltd., v. Radhey Shyam Sahu and Ors., AIR 1999 S.C. 2468

ORDER

Ravi S. Dhavan, C.J. and Shashank Kr. Singh, J.

1. The Court will not repeat how the issues came to be examined upon an inquiry by the District

Magistrate, Patna. Thus, let the order of 25 June 2004 be reproduced :

"Even before the Court could issue notice counsel for the PRDA seems to be explaining away the

situation to the High Court. Having taken instructions during the lunch recess, now it is accepted in

fact, as indicated by counsel for the PRDA itself that whereas the complex of the buildings in context

was meant to contain a septic tank for each building, it has now been learnt that a septic tank has

not been provided.

No wonder the petitioner seems to be seriously aggrieved so also the neighbours in the

neighbourhood of this area that all the filth and sewerage seems to be spilling all over the locality.

Even before the petitioner could present the submissions, the PRDA is accepting that whereas the

sanction was provided for only four buildings the fifth building is under an issue for compounding.

This is a strange argument on behalf of PRDA. The petitioner contends that the fifth multi storey is in

fact on an access road, the drive-way. The petitioner has presented the record of objections before

the PRDA.

The PRDA would be well advised to read the case of M.I. Builders PH. Ltd., v. Radhey Shyam Sahu

and Ors., AIR 1999 S.C. 2468, wherein the Supreme Court in no uncertain terms lays down that

illegalities in urban planning are incurable. The wordings of the Supreme Court are "builder is not an

innocent player in this murky deal...." The Supreme Court also observed that "primary concern of the

Court is to eliminate the negative impact (..) will have on environmental conditions in the area of the

congestion that will aggravate on account of the increased traffic and people visiting the complex."

This question will need to be answered.

The PRDA is virtually accepting the situation that something has gone wrong. But the acceptance

only comes when the petition comes to the High Court. What was being done all these times? If the

septic tanks are not there and the sewerage is spilling all over the area who will take the

responsibility of the epidemic which may explode any day more so with rains coming in. If there is

break out of cholera, typhoid and diarrhea, the responsibility will lie entirely and solely on the PRDA.

Again where did all the money go meant for plans to clean up the river Ganga under the Ganga

Action Plan. If the entire filth and sewerage is going straight into the Ganga who will take the

responsibility of the pollution of the river Ganges, which was made a subject of a special plan by the

Government of India. The Ganga Project Division, Bihar Rajya Jal Parishad has entered appearance in

the case.

Politics and corruption present situation of violations in urban planning norms. Sewerage and sullage

is one aspect of the matter. The builder raj is another.

Thus, this is not a case which will be decided on counter affidavits and rejoinder affidavits. On a

certiorari let the record in original in these matters be placed before the Court forthwith and

deposited with the Registrar General and anything which needs to be explained then any one who is

connected with these buildings the authorities, the government not excluded may offer their

defence thereafter. The Respondents are to answer the writ petition within ten days.

Notice on the writ petition issues on those who have not been served. Steps by registered post and

dasti may be taken by Monday next. Affidavits are to be filed by the heads of the departments or

local authorities.

Consequently, with violations in planning norms being virtually accepted by PRDA, this Court now

calls upon the District Magistrate, Patna to make a preliminary inquiry and survey the areas, in

context, and certify the aberrations, irregularities and illegalities on which the writ petition draws

attentions to. Apart from examining sanctions the District Magistrate will report on the

environmental hazard in the context of this matter.

Put up after ten days.

The records filed by the PRDA have been requested for by the District Magistrate, Patna and, thus,

have been delivered.

Let a copy of this order be issued to the District Magistrate, Patna, by the Registrar General.

2. The District Magistrate has submitted his report. The content of the report virtually reads like

exploding dynamite. It shows what goes on in Patna by erring builders and while the Prime Minister

issues a statement on his concern at Indian cities becoming a living hell, those who structure cities

make a hell out of it. In reality the Prime Minister's statement sums up the situation. The Prime

Minister's statement is reproduced :

"A striking feature of development in our country has been the rapid increase in urbanization. There

are now more than 30 cities with a population of more than one million. The rapid and unplanned

growth of these cities has contributed to increased urban pollution, crime and absence of the

required infrastructure like access to drinking water, sanitation, roads, footpaths for pedestrians and

public spaces, parks and greenery is making life in urban India a living hell for many. Most of the

responsibility for this rests with States and Municipal Governments. It will be our effort to give

special attention to policies that can encourage-urban development and urban renewal. We will

actively seek public-private partnership in building urban infrastructure in a planned manner."Prime

Minister's broadcast to the nation, June 2004.

3. No sooner the District Magistrate's report was placed at the bar everybody seems to be readily

accepting the situation which in any case is unusual. The Court has never heard that a development

authority and a State Department will accept the report that what has happened is wrong. Both the

Patna Regional Development Authority (in short, the PRDA) and the State Urban Department seem

to be on the run and accept that the building regulations have been violated with impunity on every

conceivable aspect whether it is lack of septic tanks, discharge of sewerage lack of fire prevention

facilities, set backs norms, lack of parking, height etc.

4. What will the PRDA inquire into? Will it go and re-measure and then ask the builders or the

owners to knock down buildings to follow in line with what can be sanctioned? But then, who passed

the plan? Who submitted the plan? What was the quid pro quo for passing an illegal plan? it has to

be recorded in as much nakedness as the facts of the report are before the Court. This partnership

to build an illegal Patna is based on what sort of relations between the authorities who permit and

those who get away with structuring an illegal structure? Is it corruption? There is a violation of set

backs. There is a violation of projections, heightwise or widthwise. There is a violation of discharge

of sewerage and sulluge; insanitation inviting disease.

5. Who will take the responsibility if an epidemic breaks out? The Court has already shown concern

in its earlier order.

6. Rightly the Prime Minister's speech to the nation said that "....life in urban India a hell for

many....." Only those who suffer the absence of a civic city feel the truth of the Prime Minister's

speech.

7. This is a clear case of you scratch my back and I will scratch yours between the PRDA, the builder

and the State urban department. The niceties of seminars showing concern on good municipal

governance, is mere a party talk amongst socialites looking at London, Singapore, Bonn, Sydney and

recall the towns of the Raj days. Everyone does not live on a Safdarjanj Road, Aurangjeb Road. The

reality of today's town is what the Prime Minister has reflected upon.

8. This is a rare case where somebody has come to complain on the reality of the situation. If any

neighbour complains about the illegalities of neighbourhood urban planning, he is as good as shot.

His survival in the locality is difficult. There is another hell which is being made for such a civic

minded citizen. Such matters should be brought to the notice of the Prime Minister's Secretariat.

This Court appreciates his speech.

9. Now another scandal has emerged. The PRDA, the Court is informed, does not have an architect.

Side by side the government also acknowledges that the Urban Planning Department also does not

have an architect.

10. The Constitution of India talks of "spatial planning." "Integration" is a concept of space. These

expressions occur in Article 243 ZD with a purpose. Nothing unplanned can be constructed at least

after the Constitution was amended (73rd & 74th amendment). Integration is nothing but planning

on the planning board of an architect not a hotch potch of an erring builder who only survives on

sharp practices for making a fast buck and the builder gone. He has done the damage to the habitat.

The remedial and "renewal" measures are the Prime Minister's worry and concern.

11. Then who designs and constructs the buildings which are coming up in Bihar? Is this an

architect's job or engineer's job?

If the engineering profession has caused the urban mess which has gone on in Patna and other

towns of Bihar (other cities of the nation not excluded), then there is a presumption that norms and

standards have not been laid down so as to control the occupation of engineers. Do engineers have

a statutory registration? Does this mean that unlike the doctors or the architects the engineers do

not have a Council? The doctors have the Indian Medical Council. The architects have the Council of

Architecture. Are engineers without a statutory body which ought to control their vocation or

profession? Who will take the responsibility of the aberrations in planning urban habitats which

violate the sanctity of constitutional norms on spatial integrated development and planning (Article

243ZD). Is habital planning and building design not the function of an architect? Bihar does not have

any architect within the Government nor the Development Authority at Patna.

12. For regulating the engineering profession, the Consulting. Engineers Association of India had

prepared a draft bill in 1989 and a revised bill recently. The Engineering Council of India, a newly set

up registered society having a membership of major engineering professional societies/associations,

including Consulting Engineers Association of India is in the process of drafting a Bill to be sent to the

government for registration of professional engineers and consulting engineers organisations. A

discussion amongst the engineers, reveals that there is a void in registration of individual engineers.

But the consortium of engineers have more interest to seek a registration system at the

international level so that the export of engineering service by consultancy organisation or

otherwise is not hindered due to the non-availability of an internationally accepted registration

system for professional engineers. These concerns have been discussed among the engineers who

are true to their calling or profession. Engineering Council of Indin-web page.

13. Unregistered engineers have acted as architects. Buildings were engineered but architectured

beyond the law and in violation of it. Both the engineers and architects must remain within their

confines. Why not have a nationally accepted registration of the Code of conduct and functions of

engineers first, leaving International waters to be crossed later? This must also be a concern within

the engineers guild.

14. The PRDA authority and the State Urban Department say they would like to inquire into this

matter of grave illegalities pointed out so glaringly in the District Magistrate's report. What aspect

would they like to inquire into? The issue is not only of a building No. 5, as it is indicated to the

Court. It is also about building Nos. 2, 3 & 4. Building No. 1 has come on a drive way. Now that the

residents in the locality are threatened by bad hygiene, a spilling septic tank with all the human

excrete enveloping them, the only question is how did all this happen under the nose of PRDA, the

State Urban Department and in this capital city?

15. The District Magistrate's report in print and photographs has now become a public document so

readily accepted by everyone at the Bar, appearing in this case.

16. If this is the state of affairs then this matter has to be examined by experts only and the experts

are not available in Patna or Bihar. Where does the Court go? The District Magistrate has done his

job. All that the Court can require him is that he may provide his report on a compact disc (CD).

17. The only authority which can examine such aberration is the statutory authority which is the

architect of all architects, the Architects Act, 1972, (Act No. 20 of 1972), is the body which

constitutes the Council of Architects. It controls the manner in which the architects will function. It

notices the qualifications, the standard of architectural education, the professional conduct and,

perhaps, for those who work unprofessionally. to knock off their licence.

18. The Council of Architecture, thus, is the only valid statutory authority which can examine this

matter.

19. The District Magistrate may cause his report and the supplement material to be produced on a

CD. The Registrar General will cause, the record of this court as also the record submitted by the

PRDA, to be put on a CD. It is understood that all, the PRDA and the Urban Development

Department, Government of Bihar, and their Counsel present, have consented that this report and

the record will be sent by the District Magistrate, Patna to the Council of Architecture, who will

inquire threadbare on every building, which is the subject matter of violations of law, in this matter

before the Court.

20. The material will be sent by the District Magistrate to the Council of the Architecture within one

week. A report that it has been sent be filed with the Registrar General before next Friday.

21. The Council of Architecture, the court expects, if possible, will generate a report within one

month of the receipt of the material including the spot inspection and survey of the area itself at

Patna. The memoranda of expenditure of travel of its investigation team from its headquarters to

Patna and back and the cost of generating the report shall be borne by the PRDA, delivered in

advance within a week on the estimates being indicated by the Council of Architecture. This cost will

be shared half and half between the PRDA and the State of Bihar. The estimated expenditure will be

delivered to the District Magistrate.

22. The District Magistrate Dr. Goswami, IAS, is hereby appointed the Commissioner by the High

Court to coordinate this inquiry. Any let or hindrance in the discharge of his functions in carrying out

this commission will invite consequences.

23. List for orders as indicated.

IN THE HIGH COURT OF KERALA

W.P.(C) No. 19669 of 2004

Appellants: Mohammed Ismail Vs. Respondent: State of Kerala: Decided On: 19.07.2004

Hon'ble Judges:

K. Balakrishnan Nair, J.

Counsels:

For Appellant/Petitioner/Plaintiff: T.M. Abdul Latheef, Adv.

For Respondents/Defendant: Susheela R. Bhat, Spl. Government Pleader


Catch Words:

Absence, Accused, Act, Adjudication, Age, Animal, Any Person, Application, Appropriate, Appropriate

Relief, Arrest, Arrest and Detention, Article, Authorised Officer, Authority, Bearing, Case, Charge,

Commission, Commission of the Offence, Competent Court, Concern, Confession, Constitution,

Constitution of India, Contraband, Contraband Goods, Convicted, Conviction, Correct Legal Position,

Criminal Court, Criminal Trial, Custody, Decision, Derivative, Detention, Determination, Director,

Entry, Filing, Finding, Forest Department, Forest Officer, Forthwith, Good, Goods, Government,

Government Pleader, Ground, India, Information, Judgment, Jurisdiction, Legal, Legal Position,

Magistrate, Mahazar, National, Necessary Implication, Offence, Offences, Offender, Officer, Order,

Owner, Pending, Person, Petition, Plant, Pleader, Police Officer, Position, Possession, Principle,

Principles, Probation, Probation of Offender, Procedure, Property, Reasonable, Reasonable Ground,

Reference, Register, Registered, Registration, Release, Relief, Reliefs, Representation, Rule of Law,

Search, Seized, Seizure, State, State Government, Terms, The Executive, The Property, Time being in

Force, Transport, Trial, Trial of Offence, Value, Vehicle, Vehicles, Vessel, Vested, Warrant, Wild Life,

Writ, Writ Petition

Acts/Rules/Orders:

Wild Life (Protection) Act, 1972 - Sections 50(2), 51(5), 52(1) and 61A; Criminal Procedure Code

(CrPC) - Sections 4(2), 360 and 451

Cases Referred:

Indian Handicrafts Emporium v. Union of India, 2003 (10) SBR 360

Case Note:

Environment � seizure � Section 51 of Wild Life (Protection) Act, 1972 and Section 451 of Criminal

Procedure Code, 1973 - whether Judicial Magistrate before whom vehicle seized under Act of 1972

produced competent to give interim custody of same to registered owner � vehicle does not vest in

Government on its seizure unless there is Order of Court under Section 51 (2) � Magistrate

empowered under Section 451 to deal with vehicle produced before him � petitioner directed to

move Magistrate by filing petition under Section 451.

JUDGMENT

K. Balakrishnan Nair, J.

1. The point to be decided in this Writ Petition is whether the Judicial Magistrate, before whom a

vehicle seized under the provisions of the Wild Life (Protection) Act, 1972, is produced, is competent

to give interim custody of the same to the registered owner. The brief facts of the case, as stated by

the petitioner, are the following:

2. The petitioner is the owner of a lorry bearing Registration No. KL5/F-7051. The driver of the said

vehicle was taken into custody by the Forest Officials on 16.6.2004. His driver confessed that on

13.6.2004, the said lorry was used for transporting forest timber worth Rs. 75,000/-. On the basis of

the said confession, the petitioner's vehicle was taken into custody under Ext.P2 mahazar. As per

Ext.P2, the value of the logs transported is Rs. 2,50,000/- and the value of the lorry is Rs. 3 lakhs. The

petitioner submits, the goods and the lorry were seized under Section 52(1) of the Forest Act, for

action under Section 61A of the said Act. The petitioner further submits that his driver was

specifically instructed not to transport any contraband goods. The petitioner was not aware of the

seizure of the vehicle. On finding that the vehicle was missing, he filed a petition before the Sub

Inspector of Police, Kanjirappally, which would be evident from Ext.P5. Later, on finding that the

lorry was with the 2nd respondent, he filed Ext.P6 representation before the said respondent and

also Ext.P7 representation before the 1st respondent for release of the lorry. Thereafter, this Writ

Petition is filed, seeking appropriate reliefs.

3. The 2nd respondent has filed a counter affidavit, in which it is submitted that the vehicle has been

seized under the provisions of the Wild Life (Protection) Act, 1972 and therefore, it has become the

property of the Government. It is also submitted that neither the officers of the Forest Department

nor the concerned Criminal Court, are competent to release the vehicle, in view of the deletion of

Sub-section (2) of Section 50 of the Wild Life (Protection) Act, 1972, empowering the concerned

Magistrate to release the goods or the vehicles seized. Therefore, it is submitted, once the vehicle is

seized, it becomes the property of the Government and the same cannot be released. It is further

submitted that the timber logs transported, using the petitioner's vehicle, were cut and removed

from the Idukki Wild Life Sanctuary and therefore, the vehicle and the timber logs have to be dealt

with under the provisions of the Wild Life (Protection) Act, 1972.

4. I heard the learned Counsel on both sides. Section 39(d) of the Wild Life (Protection) Act, 1972

provides, inter alia, that any vehicle used for committing an offence under the Act and seized, shall

be the property of the Government. The said provision is extracted below for convenient reference:-

"39. Wild animals etc., to be Government property

(1) Every--

(a) ...............................

(b) ...............................

(c) ...............................

(d) vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been

seized under the provisions of the Act, shall be the property of the Government...........".

The provision for seizure is contained in Section 50(1)(c) of the Act, which reads as follows:

50. Power of entry, search, arrest and detention (1). -- Notwithstanding anything contained in any

other law for the time being in force, the Director or any other officer authorised by him in that

behalf or the Chief Wild Life Warden or the authorised officer or any forest officer or any police

officer not below the rank of a Sub-Inspector, may, if he has reasonable grounds for believing that

any person has committed an offence against this Act -

(a) ................................

(b) ................................

(c) seize any captive animal, wild animal, animal article, meat, trophy or uncured trophy or any

specified plant or part or derivative thereof, in respect of which an offence against this Act appears

to have been committed, in the possession of any person together with any trap, tool, vehicle, vessel

or weapon used for committing any such offence and unless he is satisfied that such person will

appear and answer any charge which may be preferred against him, arrest him without warrant and

detain him:

The said clause enables seizure of the vehicle and also the arrest of the persons, provided, the

competent Officer authorised under Section 50, has reasonable grounds for believing that such

person has committed an offence under the provisions of the Act. Sub-section (4) of Section 50

provides that any person detained under Sub-section (1) shall, forthwith, be taken to a Magistrate to

be dealt with in accordance with law under intimation to the Chief Wild Life Warden or the Officer

authorised by him in this regard. The said provision reads as follows:--

"Any person detained, or things seized under the foregoing power, shall forthwith be taken before a

Magistrate to be dealt with according to law".

Section 51 (2) provides that upon conviction of a person under the Act, the Court, trying the offence,

may order, inter alia, that the vehicle used for the commission of the offence shall be forfeited to

the State Government. So, the vehicle will become the property of the Government, only on the

order of the competent Magistrate under Section 51(2).

5. In this case, the vehicle was seized under Section 50(1)(c), as stated earlier, on the satisfaction of

the concerned Officer that reasonable grounds existed for believing that a person has committed an

offence under the. Act, using the vehicle. If the property is to vest in the Government absolutely, on

being seized, on the basis of the belief entertained by the concerned Officer, the said provision

cannot stand scrutiny, in the light of Article 14 of the Constitution of India. Such a provision will run

counter to the basic principles of Rule of law. The Apex Court in "Indian Handicrafts Emporium v.

Union of India", 2003 (10) SBR 360, which was a case under the Wild Life (Protection) Act, has held

as follows:

"The question as to whether an offence under the Act has been committed or not, at that stage,

cannot be determined. Such a determination further more cannot be left for adjudication at the

hands of the executive authority. As and when a seizure is made and the trader is prosecuted for

alleged commission of an offence having regard to Sub-section (7) of Section 49-C of the Act;

adjudication therefore must be made by a competent Court of law having jurisdiction in this behalf.

Before a person is convicted, a Court has to arrive at the finding that the accused has committed an

offence wherefor a full-fledged criminal trial would be necessary. In the absence of such criminal

trial and offence having been found committed, Section 39 may not have any application. In that

view of the matter, it is evident that the properties do not stand vested in the Government in terms

thereof".

This decision also fully supports the view that the vehicle will not vest in the Government on its

seizure, unless there is an order of the Court under Section 51(2).

6. Sub-section (5) of Section 51 provides, inter alia, that Section 360 of the Cr.P.C. will not apply to

the trial of offences under the provisions of the Wild Life (Protection) Act, 1972. The said provision

reads as follows:--

"Nothing contained in Section 360 of the Code of Criminal Procedure, 1973 (2 of 1974)or in the

Probation of Offenders Act, 1958(2 of 1958) shall apply to a person convicted of an offence with

respect to hunting in a sanctuary or a National Park or of an offence against any provision of Chapter

VA unless such person is under eighteen years of age".

That means, by necessary implication, other provisions will apply. Section 4(2) of the Cr.P.C. also will

support this view. Therefore, obviously, Section 451 will also be applicable to the trial of offences

under the Act. But, the learned Special Government Pleader pointed out that Sub-section (2) of

Section 50, which enabled the Magistrate to release the vehicle pending trial, has been deleted by

Act 44 of 1991. Therefore, by necessary implication, it has to be held that the learned Magistrate is

not competent to release the vehicle, it is submitted. Reliance is placed on Ext.R2(a) Judgment of the

Madhya Pradesh High Court, to support this submission. But, by Act 44 of 1991, while Sub-section

(2) of Section 50 was deleted, Sub-section (5) of Section 51 was added, providing, inter alia, that the

provisions of the Cr.P.C., except Section 360, will apply. Apparently, Sub-section (2) of Section 50

was deleted in view of the introduction of Sub-section (5) to Section 51, Therefore, the contention of

the learned Special Government Pleader that the Magistrate has no power under Section 451 of the

Cr.P.C. to deal with the vehicle produced before him, cannot be accepted. The decision of the

Madhya Pradesh High Court does not lay down the correct legal position.

7. In view of the above, the 2nd respondent is directed to produce the vehicle before the competent

Magistrate, if so far, the same has not been produced. Thereafter, the petitioner may move the

learned Magistrate by filing a petition under Section 451. In that event, the learned Magistrate will

consider and dispose of the same expeditiously.

The Writ Petition is disposed of as above.

IN THE HIGH COURT OF BOMBAY

Public Interest Litigation No. 97 of 2003

Appellants: Netaji Pratisthan Vs. Respondent: Government of Maharashtra, Ministry of Urban

Development and Ors.Decided On: 30.08.2004

Hon'ble Judges:

Dalveer Bhandari, C.J. and D.Y. Chandrachud, J.

Counsels:

For Appellant/Petitioner/Plaintiff: P.M. Gore, Adv.

For Respondents/Defendant: V.P. Malvankar, Assistant Government Pleader for Respondent Nos. 1

and 2, R.G. Ketkar, Adv. for Respondent No. 3 and K.K. Waghmare, Adv. for Respondent Nos. 4 to 6


Catch Words:

Odour, Public Interest

Acts/Rules/Orders:

Bombay Public Trusts Act; Bombay Provincial Municipal Corporations Act, 1999 - Sections 451,

451(1) and 451(50)

JUDGMENT

Dalveer Bhandari, C.J.

1. The petitioner, Netaji Pratisthan, is a social welfare organisation registered under the provisions of

the Bombay Public Trusts Act. The petitioner, amongst its activities, takes up issues such as social

health, sanitary problems, etc. with Municipal Authorities, State Governments, etc.

2. The petitioner has instituted the present petition as a public interest litigation for safeguarding

the environmental problems and health of residents of Wanwadi and Kondhwa areas for preventing

the use of the residential area by respondent Nos. 4 to 6 for using their premises for storing, curing

or treating/tanning, etc. of animal hides and wastes.

3. According to the petitioner, tanneries are located at S. No. 86-A at Wanwadi. The residents in the

adjoining areas of these tanneries complained of bad odour to the municipal authorities by sending

representations. The Pune Municipal Corporation, respondent No. 3, on receipt of complaints from

the residents of the said areas deputed the Health Inspector for carrying out survey of the areas and

after being satisfied by the inspection report came to the conclusion that continuance of these

tanneries has resulted into health hazard for the residents.

4. The Chief of Health by his order dated 2nd November, 2002 issued to respondent Nos. 4 to 6

cancelled their licenses.

5. The Respondent Nos. 4 to 6 aggrieved by the order passed by the Municipal Corporation

approached the State Government and the State Government by order dated 12th February, 2003,

cancelled the order passed by the Pune Municipal Corporation dated 22nd February, 2003. Before

cancelling the order, no notice has been given even to the Municipal Corporation. It may be

pertinent to mention that no reasons whatsoever have been given by the State Government

cancelling the order passed by the Pune Municipal Corporation. In our considered view, the Pune

Municipal Corporation passed the order while keeping in view the public interest. The State

Government was hardly justified in interfering with the said order without even giving notice to the

Pune Municipal Corporation.

6. The State Government has been invested with powers under Section 451 of the Bombay Provincial

Municipal Corporations Act, 1949 (hereinafter referred to as "the Act"). This power can be exercised

only when the order of the Municipal Corporation is likely to lead, to a breach of the peace or to

cause injury or annoyance to the public or any class or body of persons, or is likely to lead to abuse

or misuse or to cause waste of municipal funds against the interest of the public. These are the only

circumstances in which the State Government would be justified in invoking its powers under

Section 451 of the Act. Section 451 of the Bombay Provincial Municipal Corporations Act, 1949 reads

as under:

"451. Power of State Government to suspend or rescind any resolution or order, etc. of Corporation

or other authority in certain cases:(1) If the State Government is of opinion that the execution of any

resolution or order of the Corporation or any other authority or that the doing of any act which is

about to be done or is being done by or on behalf of the Corporation or such authority is in

contravention of or in excess of the powers conferred by or under this Act or any other law for the

time being in force, or is likely to lead to a breach of the peace or to cause injury or annoyance to

the public or any class or body of persons, or is likely to lead to abuse or misuse of or to cause waste

of municipal funds against the interests of the public, the State Government may, by an order in

writing suspend the execution of such resolution or order or prohibit the doing of any such act, for

such period or periods as it may specify therein. A copy of such order shall be sent forthwith by the

State Government to the Corporation and the Commissioner or the Transport Manager.

2. On receipt of a copy of the order as aforesaid, the Corporation or Commissioner or Transport

Manager may, if it or he thinks fit, make a representation to the State Government against the said

order.

3. The State Government may, after considering any representation received from the Corporation

or Commissioner or Transport Manager and where no such representation is received within a

period of thirty days, either cancel, modify or confirm the order made by it under Sub-section (1) or

take such other action in respect of the matter as may in its opinion be just or expedient, having

regard to all the circumstances of the case. Where any order made under Sub-section (1) is

confirmed the State Government may direct that the resolution or order of the Corporation or its

authority in respect of which suspension order was made under Sub-section (1) shall be deemed to

be rescinded.

(4) Where any order is made by the State Government under Sub-section (5), it shall be the duty of

every Councillor and the Corporation and any other authority or officer concerned to comply with

such order."

The Corporation would be justified in exercising its powers under Section 451 of the Act in only

exceptional circumstances as enumerated in the Section. In the instant case, the order which in fact

was passed by Pune Municipal Corporation at the behest of residents of the locality in public

interest. The State Government was not at all justified in passing the impugned order cancelling the

order passed by Municipal Corporation in the facts and circumstances of this case. The State

Government has not given any reason whatsoever in support of its order. No notice was given even

to Pune Municipal Corporation before passing the said order. Even while exercising quasi-judicial

functions, the concerned authorities have to comply with the basic principles of natural justice. In

our considered opinion, the order passed by the State Government is totally unsustainable in the

eye of law. Consequently, the order passed by the State Government on 12th February, 2003 is

accordingly set aside. Entire proceedings emanating from the said order before the State

Government shall stand disposed of.

7. We would like to observe that this order would not come in the way of respondent Nos. 4 to 6 to

take all steps available to them in accordance with law. No further directions are necessary in this

petition and this petition is accordingly disposed of.

IN THE HIGH COURT OF MADRAS

W.A. No. 2857 of 2004

Appellants: The Union of India (UOI), rep. by its Secretary to Government, Ministry of Environment

and Forests

Vs.

Respondent: Chennai Metropolitan Development Authority, rep. by its Member Secretary G.

Santhanam: Decided On: 27.08.2004

Hon'ble Judges:

Subashan Reddy, C.J. and M. Karpagavinayagam, J.

Counsels:

For Appellant/Petitioner/Plaintiff: V.T. Gopalan, Addl. Solicitor General/Senior Counsel

For Respondents/Defendant: N.R. Chandran, Adv. General/Senior Counsel


Subject: Civil

Catch Words:

Interim Order, Interlocutory Order

JUDGMENT

Subashan Reddy, C.J.

1. This writ appeal is against the interlocutory order passed by the learned single Judge of this Court

in a writ miscellaneous petition. The matter pertains to the challenge to the Notification dated 7th

July 2004 issued by the Ministry of Environment and Forest, imposing certain restrictions in the

matter of construction of buildings with an investment of Rs.50 crores or more without

environmental clearance from the Government of India. Learned single Judge, while admitting the

writ petition, passed the following interim order:

"Interim stay of the notification challenged in the writ petition subject to the following:

Evaluation and processing the tenders received upto the last date (i.e.) 6-8-04 shall go on; however,

awarding the final work order on the basis of such evaluation alone shall stand deferred until further

orders."

In the present writ appeal, the Union of India seeks for setting aside the interim order passed by the

learned single Judge.

2. Heard Shri V.T. Gopalan, learned Additional Solicitor General for the appellant and Shri N.R.

Chandran, learned Advocate General for the respondent. There are petitions before us for

impleadment by some third parties, who are supporting the concerned notification, as also by some

private builders, whose estimated cost of porposed constructions go beyond Rs.50 crores and thus

falling within the ambit of the said notification.

3. Several arguments were advanced before us in this appeal. It is to be noted that we are dealing an

appeal which is against the interlocutory order passed in the writ petition and therefore, at this

stage, we will not delve deep into those arguments. Those arguments may be advanced at the final

hearing of the writ petition and considered for final verdict. But, at the present stage, after hearing

learned counsel, we are of the view that the following phareseology in the impugend order, viz.

"Interim stay of the notification challenged in the writ petition subject to the following"

is not necessary because ultimately what is permitted by the learned single Judge was the evaluation

and processing of the tenders which were received upto the last date, i.e. 6-8-2004. The order

clearly says that awarding of the final work order on the basis of such evaluation shall be deferred

until furthers orders of this Court. If such being the fact, to avoid any confusion in understanding the

import of the order, we only modify the order passed by the learned single Judge to the following

effect:

"The notification cannot be stayed until it is set aside by this Court on a final hearing. However, the

evaluation and processing of the tenders received upto the last date, i.e. 6-8-2004 shall go on but

there cannot be awarding of the final work order."

Since there are some private builders, who have filed petitions for impleadment in the writ petition

and on whose behalf some arguments were advanced before us, we add that the applications

submitted by such builders, who fall within the ambit of the concerned notification, shall be

evaluated and processed and final orders may be passed on such applications. Such builders may

take all steps up to the stage of finalising the tenders if they are called or identify a contractor if it is

going to be awarded to any one otherwise than by the tenderer but no final work with regard to

construction of the building shall commence until further orders of this Court. If any application

which has already been filed by the builders before the cut-off date, viz. 6-8-2004 is still pending,

CMDA shall consider and dispose of the same within four weeks from the date of receipt of copy of

this order.

4. The writ appeal is disposed of accordingly. All other interlocutory miscellaneous applications shall

be tagged along with the final hearing of the writ petitions. We direct the posting of the writ

petitions for final hearing before the learned Judge concerned, subject to part-heard cases, on 27-9-

2004. Connected W.A.M.P. No. 5286 of 2004 is closed.


W.P. No. 25586 of 2004, W.P.M.P. Nos. 31095 and 32504 of 2004 and W.V.M.P. No. 17191 of 2004

Appellants: V. Elangovan

Vs.

Respondent: The Home Secretary, State of Tamil Nadu, The Chairman, The Tamil Nadu Pollution

Control Board, The Commissioner of Police, A. Ganesh, V.D. Balaji and Kavingar Nandalala: Decided

On: 17.09.2004

Hon'ble Judges:

N. Dhinakar and F.M. Ibrahim Kalifulla, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: S. Doraisamy, Adv.

For Respondents/Defendant: R. Muthukumaraswamy, AAG assisted by S. Gomathinayagam, Spl.

G.P., for RR1 and 3, G. Rajagopalan, SC for RR4 to 6 and Rita Chandrasekaran, Adv. for R2


Catch Words:

Damage, Mandamus, Non-Governmental Organisation, Pollution Control

Acts/Rules/Orders:

Constitution of India - Article 226

Case Note:

Environment � pollution - Article 226 of Constitution of India � writ petition seeking directions

against taking out processions carrying large sized plaster of paris vinayagar idols and immersing

such idols in water resources � Pollution Control Board had taken adequate steps to see no damage

was caused to ecological system � it had prevented immersion of idols made of plaster of paris or

idols painted with toxic substances � Board had directed that idols made of clay be immersed at

designated disposal areas � held, procession of vinayagar idols made of pure clay allowed.

JUDGMENT

N. Dhinakar, J.

1. The petitioner, a pro-bono public, has filed the present writ petition. The prayer in the writ

petition is that this Court may issue a writ of mandamus or order or direction in the nature of writ

directing the respondents to forbear from issuing permissions permitting organisation to take out

processions during this year carrying large sized plaster of paris vinayagar idols and other idols made

of any other chemicals and immersing such idols in sea, rivers and other water resources anywhere

in Tamil Nadu.

2. When the matter was listed for hearing on 8.9.04, notice was ordered to the Addl. Government

Pleader, who took notice on behalf of respondents 1 and 3. On behalf of the 2nd respondent, notice

was taken by Mr.C.Ravichandran representing Ms.Rita Chandrasekaran. The authorities were also

directed to implement the order passed by the First Bench of this Court in W.P. No.24417 of 2003

dated 5.9.03 and, thereafter, the matter was listed yesterday for final hearing. It was taken up at

about 4.10 p.m. when the Court was about to rise for the day after the court hours. It was then

represented that this may be posted on top of the list tomorrow (i.e.) on 17.9.04. Accordingly, we

directed the Registry to post this as the first item in the list and it is taken up today.

3. In the affidavit filed in support of the writ petition, the petitioner has stated that formerly the

festival used to be celebrated with clay idols of Vinayaga in keeping with the ancient custom,

tradition and practice and over the last few years a new cultural trend has gripped the State, in the

name of celebrating the festival with much fanfare spreading over a period of ten days when various

organisations in the name of Hindu religion were keeping large sized Vinayagar portraits or idols

made of plaster of paris coloured and polished with plastic paints, varnish, distempers and chemical

powders on important road junctions and street corners. There is a further averment in the affidavit

that when large plaster of paris idols of Vinayagar are taken to the Marina beach and when they are

immersed by using large size mechanical cranes, there occurs large scale destruction of sea

organisms and this takes place not only in the city but also in various parts of the State giving rise to

communal tensions, irreparable damage to the environment leading to ecological disaster.

4. The petitioner has also alleged that in the year 2003 the Pollution Control Board has appealed to

the people to celebrate the festival with eco-friendly clay idols of Vinayagar, but it went unheeded.

According to the petitioner, if the idols made of plaster of paris are immersed in the sea, it causes

extinction of fish and other creatures and sea organisms and if the sea organisms are not dead they

are otherwise affected and that when people consume such affected fish it leads to various diseases

in human beings and that respondents 1 and 2 are bound to prevent such damages.

5. A counter affidavit has been filed by the Commissioner of Police, who is the third respondent,

wherein he has stated that action is being taken to beautify Marina beach to maintain

environmental status and that no organisation is permitted to organise any functions, meetings,

conferences, etc., in Marina beach for the past one year with a view to maintain a clean

environment. He has further submitted that the Government's instructions are that the materials

used for idol making should be only clay and that toxic paints should be banned and the height of

the idol should be minimised, and the said instructions have already been communicated to all the

police officers with a direction to convene a meeting with the representatives of the Hindu

organisations and idol makers in their respective jurisdiction bearing in mind the directions of the

High Court given on 5.9.03 and that the Tamil Nadu Pollution Control Board has also directed to

insist the implementation of the directions of the High Court. It is further stated that a press release

as regards this matter was issued on 3.9.04 to create awareness among the public requesting them

to make the idol only in clay without mixing any additives or paints.

6. The grievance of the petitioner, as could be seen from the averments in the affidavit and the

prayer in the writ petition, is that there should be no permission permitting organisations to take out

processions carrying large size plaster of paris Vinayagar idols and other idols made of any other

materials and immersing the idols in sea, rivers or other water sources as it affects ecological

system. Therefore, the intention of the petitioner is to maintain the ecological balance by preventing

immersion of idols made of plaster of paris and painted with toxic substances.

7. On the above averments, we heard the counsel for the 2nd respondent and the learned counsel

submitted that on 11.8.04 a committee was formed consisting of --

1) Deputy Director

Central Institute of Plastic

Engineering Technology

Guindy, Chennai - 32.

2) Representative of Home Department

(Deputy Secretary)

Secretariat, Chennai - 9.

3) Representative of Hindu Religious

and Charitable Endowments Department

Nungambakkam, Chennai - 34.

4) Professor

Department of Chemical Engineering

Indian Institute of Technology

Chennai - 88.

5) CPR Environmental Education Centre

No.1, Eldams Road, Chennai - 18.

6) The Director

Centre for Environmental Studies

Anna University, Chennai - 25.

7) Additional Chief Environmental Engineer-II

Tamil Nadu Pollution Control Board

76, Mount Road, Guindy

Chennai - 32.

and that the Expert Committee consisting of the above seven persons discussed the main issues to

specify the materials and size to be used for making idols of Lord Vinayaka to ensure that the impact

of immersion of the idols in the sea and various water bodies is minimised also taking into account

the recorded public opinion on the matter and to formulate the guidelines to locate immersion

points at various water bodies as well as procedures to be followed during immersion.

8. After discussions the committee came to the conclusion that Vinayaka idols should be made only

using traditional clay without painting since they can be safely immersed both in water sources as

well as in the sea and in case paints are used, water soluble non-toxic natural dyes may be suggested

and the public may be asked to avoid use of any chemical based dyes. They have also concluded that

immersion in the sea should be done beyond 500 m of the low tide line and the low tide line should

be identified well in advance and for the purpose of immersing the idols beyond 500 m proper

motor boats with Home Guards and Coast Guards have to be organised and each disposal area

should have a monitoring committee comprising of members from police, non-governmental

organisation and religious organisations to avoid pollution of water sources. The committee also

decided that awareness should be created among the public to make the idols in the traditional

method without mixing any additives or paints and to immerse them only in designated areas and

religious leaders may be requested to appeal to the public to create an awareness highlighting the

problems that could be caused due to immersion of huge painted idols using toxic colouring

substances.

9. On the basis of the report of the committee, the Pollution Control Board issued a press release in

vernacular in tamil dailies "Dina Thanthi", "Dinamalar" and "Dinamani" and in the English Daily "The

New Indian Express" on 4.9.04 appealing to the public to use only idols made up of raw clay (not

baked) for worshipping as this could be immersed in water sources and not to immerse idols painted

with chemical based paints and not to immerse idols in lakes and near the seashore and that they

have to be immersed at spots atleast 500 m away from the low tide line specified by the

Government. The Government of Tamil Nadu was also addressed to take necessary action to identify

the designated locations for immersion of Vinayaka idols and to declare the same to the public well

in advance to the festival to avoid water pollution due to immersion of the idols. Similarly, the

Commissioner, Hindu Religious and Charitable Endowments Department, Government of Tamil Nadu

was also addressed to take necessary action to create awareness to the public on the traditional

making of Vinayaka idols well in advance of the festival to avoid water pollution due to immersion of

idols.

10. Thereafter, the Commissioner of Police, Greater Chennai, convened a meeting of various

religious leaders representing various organisations and they are :-

S. No.�� Name and

Organisation

1)�� Hindu

Munnani (Ramagopalan)�

G.Karthikeyan, President, Chennai Dt.

��

2)�� Vinayagar

V.Murali�� State

Co-ordinator

�� Federation

of Hindu

��

Organisations.

3)�� S.V. Sridharan

�� President

�� Hindu

Makkal Katchi.

4)�� Hindu

Munnani

��(Jayaram

an Group)

5)�� Hanumanth

Sena

6)�� R.Kumararaja

�� Core

Committee Member,

��Shiv Sena,

T.N. &

�� Organiser,

Sri Vinayagar

��Chathurt

hy Festival Committee.

7)��

G.Radhakrishnan

�� State

Organiser

�� Shiv Sena,

T.N.

8)�� M.S.

Tehnmaravar

�� State Core

Committee

�� Member,

Shiv Sena.

9)�� C. Selvam

�� Junior

Engineer

�� Lord Shri

Vinayakar

�� Procession

Committee.

10)�� Jhumar Lal

�� Organiser

�� Shree

Sakthi Plaza

��Dealers

Association.

11)�� Bhogilal

�� Shree

Ganesh Mandal.

12)�� Raja Ram More

�� Legal

Advisor

��The

Chinnanayakaran

�� Traders

Association.

13)�� Sanjay Bagaria

�� Tamil Nadu

Iron and

�� Steel

Producers & Merchants

�� Vinayaga

Chathurthy

��Celebrati

on Committee.

14)�� M.K.

Ramachandran

�� Choolai

Merchants Sri

��Lord

Vinayaka Pooja Committee.

15)�� A. Damani

�� Shri Ganesh

Mahotsav Mandal.

11. Thereafter, a memorandum was prepared on 4.9.04 by the Commissioner containing details

referring to the directions of this Court and the meeting of the Pollution Control Board convened on

11.8.04 and the decisions taken thereon and also referring to the organisations and its leaders, who

are likely to organise Vinayagar idols immersion vehicles processions, which is found mentioned in

Annexure-II to the said memorandum. To the said memorandum in Annexure-III, details of incidents

reported in the previous years were also enclosed and finally a direction was given to all the

Assistant Commissioners, Deputy Commissioners and Joint Commissioners to convene meeting at

Range, District and Zonal level respectively with the representatives of all the Hindu organisations in

the respective jurisdiction before 7.9.04 to ensure peaceful conduct of Vinayagar Idols immersion

processions, etc., bearing in mind the direction given by the Tamil Nadu Pollution Control Board and

the previous incidents and that they should insist the organisers not to keep/install new idols this

year. They were also directed to send a copy of the proceedings soon after the meeting is over.

12. Annexure-I annexed to the memorandum consists of the decisions taken in the meeting

convened by the Chairperson, Tamil Nadu Pollution Control Board on 11.8.04, which we have

already extracted in the earlier part of the order.

13. The counter and the report of the Pollution Control Board and the decision taken by the

committee therefore show that the Pollution Control Board had taken adequate steps to see that no

damage is caused to the ecological system as it has prevented immersion of idols made of plaster of

paris or idols painted with toxic substances and has also directed that even idols made of clay should

be immersed in sea only at the designated disposal areas at a distance of 500 m from the shore line

for which arrangements have to be made by engaging motor boats, etc., which are to be supervised

by the monitoring committee.

14. On going through the decisions taken by the Pollution Control Board with which the Government

has agreed and has intimated the concerned officers in the State to give effect to the decision of the

Pollution Control Board, we are satisfied that the Pollution Control Board as well as the Government

have taken adequate safety measures to prevent any damage to the ecological system in the State.

Therefore, the petitioner cannot have any fear that by immersion of idols in sea, the same will

pollute the sea and, consequently, affect the sea organisms.

15. The contentions of the counsel that there is likelihood of some untoward incidents happening

during the procession is based more on surmises than on actual facts. It is no doubt true that on

certain previous occasions certain incidents have happened, but they have been brought under

control by the law enforcing agencies and this Court cannot pass a presumptive mandamus directing

the authorities not to allow any procession on the ground that there will be untoward incidents

when processions are taken. If any untoward incidents happen, we are sure the law enforcing

agencies, who will be accompanying the procession will definitely take control of the situation and

enforce law and order and, therefore, we are of the view that we cannot totally ban processions of

Vinayagar idols.

16. The learned Special Government Pleader submits that as far as the disposal areas are concerned

it will be notified well in advance so as to give the organisers sufficient time to take out processions

for the purpose of immersing the idols.

17. At this stage, we cannot but refrain from mentioning the fact that one Mr.Ganesh and two

others, wanted to implead themselves and Mr.G.Rajagopalan, learned senior counsel submitted

before this Court that an application has been filed to implead them in the petition, and though it is

numbered, it is not listed today along with this petition. Though it was numbered and not posted

before us, we asked Mr.Rajagopalan as to the grievance of the interveners and according to

Mr.G.Rajagopalan, learned senior counsel, the interveners submit that making of Vinayagar idols of

plaster of paris will not affect the ecological system as they are not toxic in nature. We feel that the

interveners ought to have come to this Court by impleading themselves in this petition at the

earliest point of time if they had any materials to prove that plaster of paris is not a toxic substance,

and they cannot, at the fag end of the proceedings, come and insist that their views also should be

heard on the subject. We cannot but lose sight of the fact that the Pollution Control Board had

formed an expert committee and the committee went into the various aspects and considered the

qualities of plaster of paris and the toxic nature of the paints used for painting Vinayagar idols and,

thereafter, came to the decision that traditional clay idols alone should be permitted to make

Vinayagar idols. We do not propose to go into this question at this hour by replacing the opinion of

the committee with our opinion based on the untested contention of the interveners to allow

Vinayagar idols that are made of plaster of paris to be immersed in the sea. However, we are of the

view that by the impleading petition being allowed, no prejudice would be caused and, accordingly,

WPMP No.32504 of 2004 filed for impleading is allowed. However, in view of the observations made

above, WVMP No.17191 of 2004 filed for vacating the stay deserves to be dismissed and, accordingly

it is dismissed.

18. Taking into consideration of the above aspects and in the interest of justice, we feel that

directions cannot be issued for ban on the procession of Vinayagar Idols made of pure clay and that

there will be no ban for taking such Vinayagar idols in procession for which the concerned law

enforcing agencies will give adequate protection and see that no untoward incidents happen during

such processions and that the idols are immersed in places notified by the Government well in

advance at a distance of 500 m from the shore line as suggested by the Pollution Control Board.

With the above observations, this writ petition is disposed of. Consequently, WPMP No.31095 of

2004 is closed.

19. Before we part with this case, we hope and trust that the persons, who are responsible for

installing the idols and taking them in procession to the sea for the purpose of immersion will also

remember the true religious significance of the procession and co-operate with the law enforcing

agencies to maintain law and order.


W.P. No. 2479 of 1998

Appellants: Kondu Dhunda Wakdikar and Anr. Vs. Respondent: Deputy Conservator of Forest and


Hon'ble Judges:

A.P. Shah and S.U. Kamdar, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: Rajiv Patil and Seema Sarnaik, Advs.

For Respondents/Defendant: V.P. Malvankar, AGP


Subject: Civil

Catch Words:

Act, Activity, Appropriate, Approval, Business, Case, Central Government, Certified Copy, Charge,

Classification, Contrary, Copy, Demolition, Dispute, Duress, Ecological Imbalance, Forthwith,

Government, Grant, Ground, India, Information, Issue, Judgment, Land, Monthly Charge, Nature,

Notice, Notices, Order, Ownership, Parties, Payment, Period, Permission, Petition, Prescribed,

Prescribed Period, Prior Approval, Prior Permission, Quashing, Record, Removal, Reserve, Similar,

State, Subject, Subject to Payment, The Prescribed Period, Threat, Under Duress, Undertaking,

Unpaid, Vacate, Writ, Writ Petition

Acts/Rules/Orders:

Forest Conservation Act, 1980 - Section 2

Cases Referred:

T.N. Godavaraman Thirumulkpad v. Union of India, AIR 1997 SC 1228

JUDGMENT

A.P. Shah, J.

1. Heard learned Counsel for the parties.

2. The petitioners are conducting food stalls in Karnala Bird Sanctuary. The 1st petitioner was

permitted to start the snacks stall sometime in 1972. The 2nd petitioner was granted permission to

carry a similar stall in the year 1974. The petitioners were respectively granted the area of 20' x 20'

in Karnala Bird Sanctuary. The stalls of the petitioners are located inside the reserved forest.

3. Sometime in April, 1998 the 1st respondent issued notices to the petitioners, inter alia, objecting

to the continuation of the stalls on the ground that conducting of the food stall in the reserved

forest is contrary to the order of the Supreme Court in Writ Petition (Civil) No. 202 of 1995 in the

case of T.N. Godavaraman Thirumulkpad v. Union of India decided on 12th December, 1998

(Reported in AIR 1997 SC 1228). The petitioners filed their replies before the 1st respondent. It

appears that the petitioners also gave undertaking that they would vacate by 8th June, 1998.

According to the petitioners, however, the undertaking was given under duress as there was

eminent threat of demolition of stalls.

4. In T. N. Godavaraman's case the Supreme Court defined the scope of the Forest Conservation Act,

1980 and the meaning of the word "forest" used therein. The Court held that the Forest

Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately

results in ecological imbalance; and, therefore, the provisions made therein for the conservation of

forests and for" matters connected therewith, must apply to all forests irrespective of the nature of

ownership or classification thereof. The Court held that the term "forest land" occurring in Section 2,

will not only include "forest" as understood in the dictionary sense, but also any area recorded as

forest in the Government record irrespective of the ownership. In view of the meaning of the word

"forest" in the Act, the Court held that prior approval of the Central Government is required for any

non-forest activity. The Court therefore directed that all on-going activity within any forest in any

State throughout the country, without the prior approval of the Central Government, must cease

forthwith.

5. It was not seriously disputed before us that the running of Snacks Bar or Snacks Stall cannot be

called as forest activity. It is obviously a non-forest activity which cannot be carried in the forest

without the prior permission of the Central Government. In view of the judgment in T. N.

Godavaraman's case (AIR 1997 SC 1228) it is not possible to entertain the present petition for

quashing the notices issued by the Authorities. We, therefore, dismiss this petition. However, having

regard to the fact that the petitioners are doing their business for the last more than 30 years, we

grant 8 (eight) weeks time to the petitioners to remove stalls from the reserved forest, subject to

payment of unpaid amount of the monthly charges within four weeks from today. If the petitioners

fail to remove the stalls within the prescribed period, the respondent No. 1 will be free to take

appropriate steps for removal and/or demolition of the stalls of the petitioners.

Issuance of certified copy expedited.

IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

WP No. 21377 of 2003

Appellants: P. Narayana Reddy Vs. Respondent: Mandal Revenue Officer, Morthad Mandal and


Hon'ble Judges:

V.V.S. Rao, J.

Counsels:

For Appellant/Petitioner/Plaintiff: D. Bhaskar Reddy, Adv.

For Respondents/Defendant: Government Pleader, for Respondent Nos. 1 to 3 and J. Satya Prasad,

Adv. for Respondent No. 4


Catch Words:

Alternative Remedy, Drinking Water

Acts/Rules/Orders:

Andhra Pradesh Water, Land and Trees Act, 2002 - Sections 15(1) and 33; Andhra Pradesh Water,

Land and Trees Rules - Rule 15; Constitution of India - Article 226

Cases Referred:

Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, 1998 (6) ALD (SCSN) 22, AIR 1999 SC 22

ORDER

V.V.S. Rao, J.

1. The petitioner herein is resident of Palem Village. He is the pattadar of the land in Survey No. 297

of Palem Village. He dug a bore well in 1990, obtained service connection from Electricity

Department and using the bore well for irrigating his land. It appears the fourth respondent gave a

complaint to the first respondent alleging that the petitioner dug a bore well at a distance of 3.5

meters from the bore well of the fourth respondent without obtaining any permission. Therefore the

first respondent by impugned notice/ order dated 30.6.2003 directed the petitioner not to draw the

water until further orders. Assailing the same, the petitioner filed the present writ petition raising

two grounds: that unless and until the area from which the water can be pumped is notified under

Section 9 of the A.P. Water, Land and Trees Act, 2002 (the Act, for brevity), there cannot be

imposition of distance rule for digging bore wells; and that impugned order was not preceded by any

notice which will cause prejudice to the petitioner.

2. The writ petition is opposed by the fourth respondent. In the counter-affidavit filed accompanying

WVMP No. 3694 of 2003, two grounds urged in opposition. First, the petitioner has effective

alternative remedy under Section 27 of A.P. Water, Land and Trees Rules, 2002 (the Rules, for

brevity), and therefore, the writ petition is not maintainable. Secondly, the impugned order itself is

notice requiring the petitioner to submit explanation to the notice and as the petitioner failed to

avail such opportunity, he cannot be permitted to urge other grounds in this writ petition.

3. Though the Interlocutory applications being WVMP No. 3694 of 2003 and WPMP No. 10703 of

2004 are listed, the writ petition itself has been finally heard and being disposed of at the

Interlocutory stage with the consent of the learned Counsel for the petitioner and learned Counsel

for the respondents.

4. The Act is intended to conserve land, water and tree resources. Under Section 10 of the Act, any

person, who intends to sink a well for purpose of irrigation or drinking water shall have to obtain

permission from the authority constituted under Section 3 of the Act. Under the Rules, certain

restrictions are imposed in sinking bore wells. One such restriction is prohibition for sinking the wells

within a distance as specified. What would happen if the provisions of the Act are contravened?

Section 15 reads as under:

15. Closure of wells .-(1) Wherever it appears to the Authority that any well has been sunk or is being

sunk or water has been extracted or is being extracted in contravention of any of the provisions of

this Act, the Authority or any officer duly authorized by it in this behalf, may enter upon that land,

remove obstructions, if any, close the pumping of the water, disconnect the power supply, seize any

material or equipment used in connection with such extraction of water and take any such action, as

may be required to stop such extraction and may by order require the owner or the person in

possession of the well to close or seal-off the well at his expense and in such manner as the

Authority may specify in such order and such owner or person shall comply with such order.

(2) Where such owner or person fails to comply with any order made under subsection (1), the

Authority may after giving such owner or person due notice in that behalf enter upon the land and

close or seal off the well and the cost incurred thereof shall be recoverable from such owner or

person as arrears of land revenue.

5. A plain reading of Section 15 would show that when it is brought to the notice of the authorities

and that the provisions of the Act have been contravened in sinking a bore well, a provisional order

has to be passed requiring owner or the person in possession of the well to close or seal off the well.

When the provisional order is not complied with, the authority under the Act may then have to issue

the owner or person due notice in that behalf and pass order to close or seal off the well. The

requirement of issuing notice is conspicuous by its passing under sub-section (1) of Section 15.

Though sub-section (2) of Section 15 specifically require the authority to give a notice to the owner

or the person using the bore well before passing order of closure or seizure. Reading sub-sections (1)

and (2) of Section 15 together, this Court is of the considered opinion that the requirement of notice

would be read into sub-section (1) of Section 15 as well. It is well settled that a provision of law

made by Legislature has to be interpreted in tune with principles of natural justice keeping in view

the doctrine of fairness. Indeed under sub-section (1) of Section 15, drastic powers are conferred on

the authority to close the pumping of the water, disconnect the power supply, seize any material or

equipment used in connection with such extraction of water. It would not be possible to

countenance any submission that Legislature never intended that the authority should act in

fairness. Principles of natural justice being part of the fairness, it is also incumbent on the authority

to issue a preliminary notice before passing a provisional order under sub-section (1) of Section 15. If

such a requirement is not read into subsection (1) of Section 15, in a given case, the Officer can as

well disconnect power supply or close bore well. In this connection, a reference may be made to

Rule 15 of the Rules, which reads as under:

15. Taking over of well to ensure drinking water:-(1) The Authority may by a general 79 or special

order shall authorize the Designated Officer to identify such wells as required to ensure supply of

drinking water to local population and shall take over such wells.

(2) On identification of the wells, the Designated Officer shall serve or cause to serve an order of

requisition on the owner of the well specifying the period of such requisition. The Designated Officer

for sufficient reasons, may extend such period of requisition.

(3) On requisition, the owner of the well shall not draw water for any other purpose other than

drinking for his own use.

(4) If the well so requisitioned is the only source of irrigation and if the owner is solely dependent on

agriculture for his livelihood, the owner shall be compensated for the loss of livelihood. The

quantum of compensation shall be decided by the District Collector in consultation with the

agriculture department based on the crops raised during the same period in the previous three years

by the owner utilizing the water from the well.

6. Rule 15 of the Rules authorises any authority by a general or special order and in case of

emergency so as to ensure supply of drinking water to local population take over such bore well in

which event the owner of the bore well will be entitled to be compensated for the agreed loss. The

only situation where without notice the bore well can be seized is to ensure the supply of drinking

water to the local population in emergency. That being the position, the issuance of notice before

passing provisional order under Section 15(1) of the Act must be held as mandatory requirement. In

this case, the impugned notice/order was not issued in such circumstances, and therefore,

unsustainable. This Court is also not impressed with the submission of the learned Counsel for the

fourth respondent that the petitioner has effective alternative remedy. But Section 33 of the Act

would not bar a writ petition as it is well settled that when principles of natural justice are violated

or fundamental rights are in fringed or the action is grossly against the provisions of the Act, it is not

a bar to exercise the power under Article 226 of the Constitution of India (See Whirlpool Corporation

v. Registrar of Trade Marks, Mumbai, 1998 (6) ALD (SCSN) 22 = AIR 1999 SC 22).

7. The matter for the above reasons shall stand remitted to the Mandal Revenue Officer, Morthad

with a direction to issue notice to the petitioner and Respondent No. 4 and decide the matter

without being influenced by any of the observations made hereinabove. It shall be open to the

petitioner to submit explanation after receiving notice from Mandal Revenue Officer.

8. The writ petition, with the above observations and directions, is disposed of.


Writ Petition No. 15327 of 2004

Appellants: S. Shareef S/o. Hussain Sab

Vs.

Respondent: The Divisional Forest Officer Wildlife, The Forest Range Officer Wildlife and The

Conservator of Forests:Decided On: 08.10.2004

Hon'ble Judges:

A. Gopal Reddy, J.

Counsels:

For Appellant/Petitioner/Plaintiff: G.V.N. Prasad, Adv.

For Respondents/Defendant: GP


Catch Words:

Certiorari

Acts/Rules/Orders:

Constitution of India - Article 226; Andhra Pradesh Forest Offences (Compounding and Prosecution)

Rules, 1969 - Rules 4, 5, 6 and 9

ORDER

A. Gopal Reddy, J.

1. In this writ petition filed under Art. 226 of the Constitution of India, the petitioner seeks a writ of

Certiorari for calling the recordsin RC No.4490/1999-M6 dt. 7-6-2004 from the third respondent and

for quashing the same.

2. By the impugned order, Conservator of Forests, Kurnool Circle, Kurnool partly allowed the appeal

filed by the petitioner against the orders of compounding the offence for Rs.70,000/- passed by the

Divisional Forest Officer, Wildlife, Nandyal, fixing the compounding fee for two times of value of the

seized forest produce ie., 20396 x 2 = 40792/- by confirming the confiscation of forest produce as

ordered by the Divisional Forest Officer. It is not in dispute the lorry of the petitioner was seized

while transporting small Sandra and miscellaneous rough dressed timber on 30-3-1999 and the

Divisional Forest Officer passed an order under Section 59 compounding the offence for Rs.70,000/-

and ordering confiscation of the timber pieces. The timber pieces which were confiscated was sold in

an open auction and fetched only Rs.1340/- by treating it as fuel wood. On such compounding the

offence, the petitioner preferred an appeal before the Conservator of Forests, Kurnool Circle, which

was dismissed on 19-6-1999. Against which, the petitioner filed WP No.16222/2000 before this

court. This court by its order dt. 3-3-2004 set-aside the order passed by the Conservator of Forests

dt. 19-6-1999 and directed him to consider the appeal afresh taking into account the grounds of

appeal raised by the petitioner. On such remand, the third respondent allowed the appeal partly, as

stated above, by the impugned order. Questioning the same, the present writ petition has been filed

contending that the petitioner never agreed for compounding the offence but respondents took the

thumb impression on a white paper and have written that the petitioner agreed to compound the

offence, which resulted in passing the impugned orders of compounding the offence by the

Divisional Forest Officer.

3. Learned Government Pleader for Forest made available the record, which discloses that page

No.15 is written in Telugu, wherein the petitioner agreed for compounding the offence and amount

so compounded will be paid in instalment.

4. Admittedly, the petition said to have been submitted by the petitioner, which was at page No.15

in the file, was not filed in prescribed proforma as contemplated under Rule 5 of the Andhra Pradesh

Forest Offences (Compounding and Prosecution) Rules, 1969 (for short "the Rules"). Rule 5 envisages

that every accused who expresses his willingness to have the offence compounded as provided in

Rule 4 shall forthwith give a written undertaking in Form-D. Rule 6 contemplates that if immediately

after the offence is detected or at the time of enquiry, the accused is willing to pay in advance the

amount towards compensation to be fixed under Sec. 59 of the Act, any Forest Officer not below the

rank of a Forester may accept such amount and shall issue a receipt for the amount so received

without prejudice to any decision that may be taken by the competent authority under the Rules in

regard to the quantum of compensation or the necessity or otherwise to compound the offence.

Rule 9 of the Rules contemplates that where competent officer refuses to compound the offence

amount received towards advance from the accused shall be refunded.

5. What follows from the above rules is the accused must file an application to compound the

offence in the prescribed proforma and is willing to pay in advance any amount towards

compensation to be fixed, then only the respondents can proceed to compound the offence. Since

the file produced do not indicate about filing of such an application in the prescribed form,

compounding offence by the first respondent for three times of the value of the seized forest

produce worth Rs.20396/- suffers from incurable infirmities and same is not sustainable. The

appellate authority has not considered the said aspect in proper perspective and allowed the appeal

restricting the same to two times of the value of the seized forest produce. When it is admitted that

the produce which was unloaded from the lorry was 510 numbers of small sundra and rough dressed

timber was valued at Rs.20396/- but it fetched only Rs.1340/- in the open auction, therefore, the

value assessed while compounding the offence was not properly evaluated. In such a situation,

normally this court can remand the matter to the lower court while setting aside the said order.

Once that exercise has already been exercised and matter has been remanded. To have a quietus to

the litigation, compound fee as fixed by the Conservator of Forest at Rs.40792/- is reduced to

Rs.15000/-. On receipt of such amount only, the petitioner shall stand discharged of the offence,

lorry shall be released in favour of the petitioner and no further proceedings shall be taken against

such person or property.

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

C.W.P. Nos. 4783, 7307 of 2003 and 513 of 2004 and Civil Misc. Appln. No. 21 of 2004

Appellants: Suo Motu Vs. Respondent: State of Rajasthan and Ors.Decided On: 20.10.2004

Hon'ble Judges:

Anil Dev Singh, C.J. and K.S. Rathore, J.

Counsels:

Members of the Monitoring Committee: A.K. Bhargava, Virendra Dangi and Shyam Singh, Advs.

For Appellant/Petitioner/Plaintiff: S.S. Hora, Adv.

For Respondents/Defendant: B.P. Agarwal, A.G., R.P. Agarwal, Adv. and Bharat Vyas, Addl. A.G.

For Vidhan Sabha: P.S. Asopa, Sr. Counsel and Amit Kuri, Adv.

For Union of India: Kamlakar Sharma, Sr. S.C. and B.C. Chirania, Addl. S.C.

For Jaipur Municipal Corporation: P.C. Jain, Adv.

For Jaipur Development Authority: R.S. Chauhan, Adv.

For JVVNL and RSRTC: Maneesh Bhandari, Adv.

For Pollution Control Board: Mohd. Rafique, Adv.

For National Highways Authority of India: M.D. Agrawal, Adv.

For Reliance Infocom: Alok Sharma, Adv.


Catch Words:

Accumulation, Clean Up, Damage, Disposal of Waste, Heritage, Pollution Control, Public Health,

Sewers

Acts/Rules/Orders:

Constitution of India - Articles 21 and 226

Cases Referred:

Municipal Council, Ratlam v. Vardhichand, AIR 1980 SC 1622; Dr. B.L. Wadehra v. Union of India, AIR

1996 SC 2969

JUDGMENT

Anil Dev Singh, C.J.

1. The city of Jaipur has an important place in the history of the State of Rajasthan. City of Jaipur is

steeped in history. It has rich mosaic. It has ancient monuments, palaces, Havelies, unique

architecture, art, culture and festivals. It being the capital of the State deserves to showcase the

history, heritage and culture of the people of the city. But the city has since been suffering from slew

of maladies. These have to some extent clouded its magnificence and splendour. This has also

adversely affected the quality of life of the residents. Decay of the city must be prevented and it

needs to be restored to its pristine glory, beauty, grace and charm. Keeping this in view, we issued

suo motu notice to the concerned authorities on August 13, 2003. A nudge to them to perform their

statutory duties and to remind them that the city of Jaipur deserves to be rid of filth and squalor,

heaps of dirt, piles of garbage, unauthorized constructions, encroachments, stench and stink caused

by open drains, pot-hole roads, etc. is necessary so that people can have a life which is worth living.

2. It is well settled that right to life enshrined in Article 21 of the Constitution takes within its sweep

right to a life which is worth living. It includes the following rights as well :

(1) right to food, clothing, and shelter,

(2) right to reasonable accommodation to live in,

(3) right to decent environment, and

(4) right to live in a clean city.

In Municipal Council, Ratlam v. Vardhichand, AIR 1980 SC 1622, the Supreme Court considered the

question whether the order of trial Court, which was upheld by the High Court of Madhya Pradesh,

directing the Ratlam Municipality to draft a plan within six months for the removal of nuisance

caused by the open drains, human excreta littering the roads etc., could be sustained. The Supreme

Court held that by affirmative action the Court could compel a statutory body to carry out its duties

to the community including creation of sanitary conditions in the city. Expressing anxiety over the

condition of Ratlam town, the Supreme Court observed as follows :--

".....Ward No. 12, New Road, Ratlam town is an area where prosperity and poverty live as strange

bedfellows. The rich have bungalows and toilets; the poor live on pavements and litter the street,

with human excreta because they use roadsides as latrines in the absence of public facilities. And the

city fathers being too busy with other issues to bother about the human condition, cesspools and

stinks dirtied the place beyond endurance which made the well-to-do citizens protest, but the crying

demand for basic sanitation and public drains fell on deaf ears. Another contributory cause to the

insufferable situation was the discharge from the Alcohol plant of malodorous fluids into the public

street. In this lawless locale, mosquitoes found a stagnant stream of stench so hospitable to

breeding and nourishing, with no municipal agent disturbing their stinging music at human

expense..... (Para 2)

In this view, the Magistrate's approach appears to be impeccable although in places he seems to

have been influenced by the fact that "cultured and educated people" live in this area and "New

Road, Ratlam is a very important road and so many prosperous and educated persons are living on

this road". In India 'one man one value' is the democracy of remedies and rich or poor the law will

call to order where peoples rights are violated. What should also have been emphasized was the

neglect of the Malaria Department of the State of Madhya Pradesh to eliminate mosquitoes,

especially with open drains, heaps of dirt, public excretion by humans for want of lavatories and

slums nearby, had created an intolerable situation for habitation. An order to abate the nuisance by

taking affirmative action on a time bound basis is justified in the circumstances. The nature of the

judicial process is not purely adjudicatory nor is it functionally that of an umpire only. Affirmative

action to make the remedy effective is on the essence of the right which otherwise becomes sterile.

Therefore, the Court, armed with the provisions of the two Codes and justified by the obligation

under Section 123 of the Act, must adventure into positive directions as it has done in the present

case. Section 133 Cr. P. C. authorizes the prescription of a time limit for carrying out the order. The

same provision spells out the power to give specific directives. We see no reason to disagree with

the order of the Magistrate." (Para 16)

3. Relying on the decision in Municipal Council, Ratlam's case (AIR 1980 SC 1622) (supra), the

Supreme Court in Dr. B.L. Wadehra v. Union of India, AIR 1996 SC 2969, directed the Municipal

Corporation Delhi and the New Delhi Municipal Council to perform its statutory duties of scavenging

and cleaning the city. The Supreme Court did not accept the grounds of inadequacy of funds or

insufficiency of machinery for non-performance of their statutory obligations.

4. Due to failure of the civic authorities and other bodies to discharge their duties under Article 21 of

the Constitution and statutory provisions the quality of life in the city has gone down tremendously.

Civic bodies and other authorities have been taking refuge under the purile excuse that they do not

have funds to perform their duties. The plea of lack of finances is a poor alibi for not performing

their statutory duties. The law must be enforced and the fragile plea of lack of finances must be

rejected. Inaction of the authorities cannot be tolerated, as that will make mockery of Article 21 of

the Constitution and the statutory provisions under which they are obliged to carry out their duties,

including duty to provide and maintain civic amenities which make life worth living.

5. By order dated April 20, 2004 we had pointed out that plastic and polyethylene bags are the bane

of cities, towns and villages. There is no city, town or village, which is free from this menace.

Polythene bags can be seen scattered over a large area of the city of Jaipur. They are degrading the

soil, polluting the water -resources and preventing charging of the ground water and also blocking

sewers and drains. The menace of polythene bags even affects the bovine animals as they consume

these bags and suffer immensely. The damage due to bio-non-degradable polythene bags is

immense. The accumulation of polythene bags over a large area of cities, towns and villages is

having catastrophic effect on the environment. The Civic Authorities have still not taken any action

to remove the plastic and polythene bags lying on the streets, roads, fields etc. This situation cannot

be allowed to continue.

5i. By order dated June 4, 2004 we had directed the State to look into the question of feasibility of

imposing ban on the use of plastic and polythene bags in the State. We had also asked the State to

file a report. The report has not been filed. However, it appears that the Jaipur Municipal

Corporation has sent a report to the State Government in that regard. It was pointed out by the

learned Additional Advocate General, appearing for the State that vide Notification dated December

11, 2000, ban on manufacture, sale or consumption and use of polythene bags or containers having

thickness less than 20 microns, has been imposed. We are surprised to find that hardly any action is

being taken against the persons who are manufacturing, selling or using polythene bags having

thickness less than 20 microns.

5ii. In the report of the Jaipur Municipal Corporation dated August 4, 2004, it is stated that 50

challans against the defaulters have been prepared. This is not enough. It shows that no substantial

steps have been taken to check manufacture, sale and consumption of the polythene bags having

thickness less than 20 microns.

6. One of the reasons for urban decay is increase in the population. The people from rural areas are

migrating to urban areas in search of work. People are also moving to cities as they are attracted by

the amenities and conveniences which the cities offer. As a result of this movement, large number of

people live on the pavements without proper shelter. They live an animal like existence. The State

should be able to secure occupation for the rural poor in the villages to which they belong. By

shifting to the cities, they become rootless. They lose their cultural moorings and sense of belonging.

The State should be able to provide opportunities to them to secure food, clothing and shelter in the

villages to which they belong. The State should consider taking measures whereby the villagers can

find work and occupation in their own villages. This will not only reduce pressure on the cities like

Jaipur but will also prevent urban decay, which is taking place at a very fast rate. It will also preserve

the traditional values of village society.

7. The State must protect ecology. Any activity, which degrades environment, should not be

permitted except where such activity is accompanied by the use of measures that eliminate such

disastrous results.

8. After the first order dated August 13, 2003, which was rendered more than a year back, several

orders have been passed giving directions to the various authorities with a view to improve the

conditions in the city so that people can lead a dignified life as opposed to the animal existence. The

city must offer hygienic environment. The authorities pursuant to our orders have done some work

but much is still required to be accomplished by them. On one pretext or the other, the authorities

have been able to stifle our orders. We are conscious of the fact that it takes time to improve the

conditions in the city especially when they have degenerated to such an extent. In the

circumstances, therefore, we have been giving time to the authorities to comply with the orders.

9. Since the compliance of the orders can be monitored by the Monitoring Committees (Citizens

Committees) under the chairmanship of the Chief Secretary and in the event of the failure of the

civic authorities and other bodies, Corporations and private persons to carry out the directions,

appropriate applications can be filed for initiating proceedings for contempt of Court against them.

Therefore, we consider it appropriate to dispose of the writ petition in terms of the orders passed

from time to time in the instant petitions and with the following further and fresh directions and

directions which are clarificatory in nature.

1. The Coordination Committee and the two Monitoring Committees will continue their work as

specified in the various orders.

2. The Jaipur Development Authority, The Jaipur Municipal Corporation and the Rajasthan Housing

Board shall prepare plans for improvement and development of the heritage city and its

beautification.

3. No commercial activity in residential premises shall be allowed to be carried out by the Jaipur

Development Authority, the Jaipur Municipal Corporation and the Rajasthan Housing Board under

the areas of their jurisdiction.

4. Encroachments in the city shall be removed by the Jaipur Development Authority, the Jaipur

Municipal Corporation and the Rajasthan Housing Board in accordance with law.

5. The Jaipur development Authority, the Jaipur Municipal Corporation and the Rajasthan Housing

Board shall not permit unauthorized constructions to come up in the city. Where unauthorized

constructions have already been raised, they shall be demolished in accordance with the law by the

Jaipur Development Authority, the Jaipur Municipal Corporation and the Rajasthan Housing Board.

6. Strict vigil shall be kept by the Jaipur Development Authority, the Jaipur Municipal Corporation

and the Rajasthan Housing Board to prevent encroachments in the city.

7. The Public Works Department, the National Highways Authority of India, the Jaipur Development

Authority, the Jaipur Municipal Corporation, the Rajasthan Housing Board shall keep the roads falling

in their respective jurisdiction, in good repairs.

8. The Jaipur Development Authority, Jaipur Municipal Corporation and the Rajasthan Housing Board

shall not permit a new housing colony or commercial area to come up or to be developed, in the

areas falling within their respective jurisdiction, unless permission has been accorded by them in

accordance with the law. Permission shall be refused by the authorities where the same are not

being set up in accordance with the law and the Master plan.

9. In case an unauthorized construction or encroachment takes place and illegal housing colony or

commercial enterprise is set up, in an area falling under the jurisdiction of the Jaipur Development

Authority, the Jaipur Municipal Corporation or the Rajasthan Housing Board, the concerned

Enforcement Officer / Inspector/ Deputy Commissioner /Zonal Officer shall be responsible. In the

ACR of the defaulting Officer specific entry shall be made to the effect that during his posting in the

area unauthorized construction or encroachment took place or an illegal colony was set up or an

illegal commercial enterprise was established in a residential area or an area which was not meant

for commercial activity. This entry shall be treated as an adverse entry and shall be kept in view at

the time of considering the case of the officer for promotion or selection. That apart, the Appointing

Authority shall initiate departmental action against him. Members of the Monitoring Committee and

the Appointing Authority of the officer shall be duty-bound to move an application for initiation of

proceedings for contempt of Court against the defaulting officer.

10. The Jaipur Municipal Corporation shall work out a plan for collection of garbage from house-to-

house independently or with the assistance and involvement of the residents.

11. The Rajasthan Pollution Control Board shall regularly send its inspection teams in different areas

of Jaipur city to ascertain whether or not the .collection, transportation and disposal of garbage are

being carried on satisfactorily. The Board shall file reports in this Court by way of affidavits every two

months.

12. The Government and the Jaipur Municipal Corporation shall educate the residents regarding :

(i) their civic duties,

(ii) importance of a clean city,

(iii) hygiene,

(iv) cleanliness,

(v) traffic rules etc.

through television, road-shows and other means.

13. The residents shall also be informed about the action which can be taken against them for

throwing garbage, including plastics and other waste materials on the roads/ streets. They should be

informed that they will have to face the penalty, in case they defy the law. They should be made

aware that the violation of law and orders of the Court can result in infliction of punishment, both

corporeal as well as incorporeal on them.

14. The Jaipur Municipal Corporation shall work out a plan for waste-management. For this purpose,

training shall be imparted to some of its employees. The lifting and disposal of garbage should be

undertaken through mechanical devices. The garbage shall be disposed of at the designated place.

15. The State shall construct night-shelters for the shelterless people of the city.

16. The Jaipur Municipal Corporation, the National Highways Authority of India Ltd. and the Railways

shall not permit hoardings on the roads and buildings, except at the following places :

(a) tree-guards and railings which are raised on the dividers provided they are small, circular or

rectangular, in nature and

(b) EOT type toilets

(c) Bus Shelters /stops.

17. The Railway Authority shall create adequate sitting arrangements at the platforms of the

following railway stations.

(1) Jaipur main,

(2) Gandhi Nagar,

(3) Durgapura,

(4) Jagatpura, and

(5) Dehr-ke-Balaji.

The Railways shall provide clean kitchens, potable water, sparkling toilets etc. at the Railway

Stations.

18. Subjects such as importance of ecology, cleanliness, hygiene, moral values, respect for the law

shall be taught in the schools.

19. The State shall maintain the historical places, which are in its control, namely. Amber Palace,

Hawa Mahal, Nahargarh Fort, Jaigarh Fort, City Palace, Jagat Siromani Temple, Ramachanderji-ka-

Mandir, Museum, Sisodiya Rani-ka-Bagh, Vidyadhar-ka-Bagh and Charan Mandir. The income

generated through the sale of tickets to the public and tourists visiting the historical places shall be

spent on their upkeep and maintenance. The details of income and expenditure and upkeep of the

historical monuments/buildings shall be filed every four months by way of affidavits of the

concerned authorities.

20. The Jaipur Municipal Corporation shall clean up Tal Katora lake, located near Govind Deoji's

temple. The Jaipur Municipal Corporation. Public Health Engineering Department and Department of

Irrigation shall provide pipes from Nahargarh hills to Tal Katora Lake so that the lake which was

originally existing is restored to its pristine glory.

21. Immediate steps shall be taken by the authorities for construction of 100 public toilets in the

city, as already directed.

22. The State shall appoint Sanitation Officers in the Government Hospitals.

23. The Dairies shall be removed from the city, within four months from August 23, 2004. or within

the period allowed by the Court in Civil Misc. Applications Nos. 1532/2004 and 619/2004, in DB Civil

Writ Petition No. 4783/2003 and other applications, if any.

24. The State shall make a survey regarding the homeless population living on the pavements and

shacks in the city. Depending upon their numbers, the State shall construct night shelters along with

toilet facilities, so that the people do not defecate on the roads.

25. No vendor or shopkeeper shall deliver goods, including vegetables and any retail items to the

buyer or any other person in polythene bags after the expiry of the period of three months from

today.

26. That the Public Works Department, the Public Health Engineering Department, the Jaipur

Development Authority, the Jaipur Municipal Corporation, the Jaipur Vidyut Vitaran Nigam Limited,

the Rajasthan Housing Board, the Rajasthan State Road Transport Corporation, the Railways and the

Reliance Infocom shall file compliance reports once in two months with advance copies to the

Coordination Committee and the Monitoring Committees No. 1 and 2.

27. In the earlier Orders relating to hospitals, parking of vehicles, electricity poles and boxes, bio-

medical waste, unauthorized plying of jeeps and buses, providing of services by the RSRTC and

private operators, raising of height of the poles, underground laying of electricity wires, telephone

lines and cables etc., digging of roads, removal of electric poles for widening of the roads, raising

transformers to a specified height, as suggested by the Monitoring Committee, construction of

toilets, shops, Halwais, disposal of wastes, etc. passed from time to time in the petitions and the

directions given in the instant order shall be strictly complied with by the concerned.

The Jaipur Vidyut Vitran Nigam Ltd. shall ensure that all the LT/11 KV lines are earthed in accordance

with the Indian Electricity Rules.

28. The Monitoring Committees under the Chairmanship of the Chief Secretary, Government of

Rajasthan shall over see the implementation of the directions which have been recorded by us in the

instant order and the orders which have been passed in the petitions from time to time.

List this matter after four weeks for reporting compliance.

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

D.B. Civil Writ Petition No. 7544 of 2003

Appellants: Ashwani Chobisa Vs. Respondent: Union of India (UOI) and Ors.: Decided On: 20.10.2004

Hon'ble Judges:

Anil Dev Singh, C.J. and Harbans Lal, J.

Counsels:

For Appellant/Petitioner/Plaintiff: P.S. Asopa, Sr. Adv., Shobha, Ashwani Chobisa, Ashok Sharma,

Amit Kumar, R.S. Chauhan, Manish Bhandari, P.K. Sharma, S.L. Sharma, M.S. Kachhawa, Alok Sharma,

D.D. Khandelwal and Praveen Jain, Advs.

For Respondents/Defendant: B.C. Chirania, Ravi Chirania, K.K. Sharma, A.K. Bhandari, S.R. Surana,

Rajeev Surana, A.K. Sharma, Azad Ahmed and Anand Sharma, Advs.

For Raj. Pollution Control Board: M. Rafiq, Akhil Simlote and S.K. Shukla, Advs.

For State: Bharat Vyas, Addl. Adv. General

Subject: Constitution


Catch Words:

Allotment, Composition, Constitution of India, Constitutional Amendment, Constitutional Obligation,

Contempt, Contract, Contravention, Damage, Delegate, Deposit, Discharge, Dismissal, Duty of the

State, Ecology, Economic Zone, Environmental Impact Assessment, Environmental Pollution,

Environmental Protection, Environmental Statement, Federation, FIR, Flood Control, Fundamental

Right, Future Generation, Gram Panchayat, Guarantee, Inter Generational Equity, Inter-Generational

Equity, Interim Order, Jurisdiction, Legislation, Liberty, Life and Personal Liberty, Mining Lease,

Mining Operation, Monument, Noise Pollution, Panchayat, Personal Liberty, Polluter Pay, Polluter

Pays Principle, Pollution Control, Precautionary Principle, Protection of Life and Personal Liberty,

Public Health, Public Interest, Public Interest Litigation, Reclamation, Recommendation, Regulation,

Right to Freedom, Right to Life, Right to Live, Sovereign, Statutory Authorities, Statutory Provision,

Summon, Sustainable Development, Violation of Article, Wild Life

Acts/Rules/Orders:

Constitution of India - Articles 21, 48A and 51A;

Environment Protection Act, 1986; Forest (Conservation) Act, 1980; Mines and Minerals

(Development and Regulation) Act

Cases Referred:

A.P. Pollution Control Board v. Professor M.V. Nayadu and Ors., 1999(2) SCC 718; Vellore Citizens

Welfare Forum v. Union of India, 1996 (5) SCC 647; M.C. Mehta v. Union of India and Ors., JT 2004(4)

SC 181; Virender Gaur and Ors. v. State of Haryana Ors., (1995) 2 SCC 5; Mahavir Nagar Vikas Samiti,

Pali v. State of Rajasthan and Ors., 2004(1) ILR 187; Subhash Kumar v. State of Bihar, AIR 1991 SC

420; M.C. Mehta v. Union of India and Ors., (1987) 4 SCC 463

JUDGMENT

Harbans Lal, J.

1. These writ petitions, which have been filed by way of public interest litigation, highlight issues of

grave environmental and ecological degradation due to large scale illegal, un-authorised, un-

scientific and un-systematic mining activities being undertaken in violation of the provisions of

various enactments, rules framed and notifications issued thereunder, and the orders of the

Supreme Court and this court. Some of the petitioners have made a grievance with regard to the

operation of the stone crushers and use of explosive substances for winning the minerals from the

mines on the ground that they are causing air and nose pollution. Since these writ petitions pertain

to and address the common issues, they have been heard together and are being disposed of by this

order.

2. D.B. Civil Writ Petition No. 7544/03 has been filed by one Ashwani Chobisa, who is a practicing

lawyer, in the Rajasthan High Court and claims himself to be a public spirited and keenly interested

person in protecting the environment and water resources. He has focused on the aspects of large

scale illegal un-systematic, haphazard and un-scientific mining taking place in the entire State of

Rajasthan and operation of stone crushers at various places in the State and their benefit

repercussions on the ecology. While Chobisa's writ petition deals with the problem of environmental

degradation through-out the State of Rajasthan, all other writ petitions have focused on the

aforesaid problem in respect of particular areas only. Therefore, Chobisa's writ petition is treated as

the lead case.

PETITIONER'S CASE:

3. According to the petitioner (Ashwini Chobisa), the State and its functionaries have been

complacent in not strictly enforcing environmental laws and notifications. He has referred to Article

21 of the Constitution, which guarantees the protection of life and personal liberty to an individual.

Article 48-A enjoins the State to make every endeavor to protect and improve the environment and

to safeguard the forest and wild life of the country. Article 51-A(g) provides that it shall be the duty

of the every citizen of India to protect and improve the natural environment including forest, lakes,

rivers, wild life and to have compassion for living creatures. Articles 48A and 51A have been inserted

in the Constitution through constitutional Amendment Act, 1976. Prior to insertion of these

provisions in the Constitution, there have been several legislations on the subject including the

Water (Prevention and Control of Pollution) Act, 1974, The Air (Protection and Control of Pollution)

Act, 1981. The constitutional and statutory provisions, inter alia are aimed at protecting the

individual's rights to fresh air, clean water and pollution free environment.

In A.P. Pollution Control Board v. Professor M.V. Nayadu and Ors. (1), while dealing with the

principle of inter generational equity, which is of recent origin, has highlighted the Stockhom

Declaration, 192 which declares that environment is a resource for survival of present and future

generations.

Even the Supreme Court has accepted "Precautionary Principle" and "Polluter Pays Principle" in

Vellore Citizens Welfare Forum v. Union of India (2). It has been laid down that:

a) the environmental measures by the State Government and statutory authorities should

anticipate, prevent and check the cause of environmental degradation,

b) where there are threats of serious and irreversible damage, lack of scientific certainty, the reasons

used for postponing the measure to prevent environmental degradation and

c) the onus to prove is on the actor or on the developer/industrialist to show that his action is

environmentally benign. For protection of environment the notifications dated 27.1.1994 and

.5.1992 issued by the Central Government in exercise of its powers under Section 3 of the

Environmental Protection Act 1986 read with Rule 5 of the Rules framed thereunder are being

violated by the persons operating the mines in the State.

GRIEVANCE OF THE PETITIONERS:

As already pointed out, The petition has been filed to highlight the serious and environmental

degradation being caused by excessive mining activity and industrial operations and indiscriminate

felling of trees.

4. Notices were issued to the respondents on 17,12.2003. The State was specifically required by the

order dated 23.1.2004 to specify in its reply as to how many mining leases had been granted and

how many lease holders had got the consent of the Rajasthan State Pollution Control Board to

operate the mines and the action taken with reference to the letter of the Central Government

dated 10.6.2003. By an interim order the State Government was directed to ensure that no illegal

mining is undertaken in the State of Rajasthan in the meanwhile. The State was also directed on

24.2.2004 to comply with the notification of the Central Government dated 27.1.1994 and its letter

dated 10.6.2003. It was also required to file a report in compliance with the order dated 4.9.2003

passed in D.B. Civil Writ Petition No. 3879/02. It was claimed by the petitioners that the mining

operations were not being conducted in accordance with law and certain mines were being

operated without due permission. The respondents, however, denied this fact. Which the view to

ascertain the truth, a committee of two advocates namely Shri Ajay Kumar Rastogi (as he then was)

and Shri Jag Mohan Saxena was constituted by this Court for making site inspection of mines in

Jaipur, Bharatpur and Alwar districts. The committee inspected the mines in various areas and

submitted its report. The report reveal that most of the mines are being operated without complying

with various orders of this court and the provisions of law.

5. It was not in dispute that every single mine operator before operating the mien had to take

consent/clearance from the Rajasthan State Pollution Control Board (for short RSPCB). As per the

reply of the State filed in the main writ petition, 9982 mining leases were granted out of which only

1026 lessees had obtained consent/clearance from the RSPCB and 3286 mine operators had applied

for consent and 5670 had yet to apply.

6. This petition was initially directed against five respondents; Union of India, State of Rajasthan

through, Secretary Mines, State Pollution Control Board, Chief Conservator of Forest and Secretary

Environment State of Rajasthan, Jaipur. It appears that Mangalam Cement Ltd. Aditya Nagar Modak,

Upper Mall Pathar Vyavasayee Sansthan and Federation of Sand Stone Mining Industries Association

were also impleaded as parties after they applied for clarification/modification of the orders passed

by this Court.

CASE OF THE STATE:

7. Respondent No. 2, State of Rajasthan has in its reply raised a preliminary objection with regard to

the maintainability of this petition. It is stated that similar writs are already pending either in the

Principal Seat of Rajasthan High Court or the. Bench and the matter stands concluded by the

directions of the Supreme Court with regard to the mining activities in the State of Rajasthan. The

petitioner has no right to raise the same issues again and again by way of public interest litigation.

8. In reply it has also been pointed out that nature has been bountiful to the State inasmuch as the

nature has provided huge mineral wealth to it. Emphasising the importance of the minerals it is state

to the effect that the minerals serve as raw materials for running the industries, particularly the

following commercial enterprises:

(i) building;

(ii) Pharmaceuticals;

(iii) cosmetics;

(iv) transportation;

(v) information technology;

(vi) atomic power generation etc.

Rajasthan has Wollestonite, Zypsum, Lead, Zinc, serpentine green marble, cal- cite, soap stone, sand

stone etc. It is asserted that the State has monopoly in the world market for Lead, Zinc, serpentine

green, soap stone, sand stone etc. Mineral wealth is not only a source of generation of revenue but

also provides employment to millions of people. Out of a total income of Rs. 13080 crores per

annum from all sources of the State, the mineral sector provides Rs. 450 crores per annum as

Royalty, Sales Tax and half of its amount as Excise Duty. It also provides Foreign Exchange. Out of the

revenue provided by the mineral sector, the State is able to spend Rs. 2650 crores for develop-

mental works. The State has however, traversed the allegation that it is not complying with the

statutory provisions and the rules as well as the notifications issued thereunder. It is claimed that

the basic theme of the petition is protection of environment. The State has undertaken all possible

steps and has made serious efforts for ecological upgradation by adopting eco-friendly measures. It

has initiated campaigns through seminars/workshops in each Districts for emphasizing the

importance of ecology, it has also issued guidelines to the officers in the form of circulars and

booklets. The State has made it compulsory for each mine owner to submit eco friendly mining plan

to be approved by the Mining Engineer, who monitors and watches its strict adher-

ence/implementation on weekly basis. The State is submitting periodical compliance reports in

DBCWP No. 3879/2002 pending at the Principal Seat of the High Court regarding allotments of

dumping areas and yards. It is pointed out by the State that the prayer for total stoppage of mining

activities would be suicidal for the State. The State claims that the petition in motivated by some

oblique and hidden agenda and it does not stem with the bonafide and sincere desire for protection

and maintenance of the environment. The sweeping orders for closure of all mines will be rather

counter productive to the interest of the public at large, which takes this petition out of the ambit

and scope of public interest litigation. In I.A. No. 828 in Writ Petition No. 202/1995 the mining

activity was practically stopped in 3/4th of the State. After filing the replies on 30.11.2002 by the

State and others, the Supreme Court vide its order dated 16.12.2002 (Annex.R/6) reviewed its earlier

order and allowed the mining activity to take place. Therefore, no fresh writ was necessary.

Respondent No. 2 has, therefore, prayed for dismissal of this writ petition with costs.

9. DB Civil Writ Petition No. 1967/03 has been filed by the villagers of village Bolkheda through

petitioner Nos. 2 to 6, DB Civil Writ Petition No, 4606/03 has been filed by Patram and others, DB

Civil Writ Petition No. 4864/03 was initially filed by one Dularam, but he sought permission to

withdraw the writ petition which was declined but the present petitioners were allowed to be

substituted in his place DB Civil Writ Petition No. 6466/03 has been filed by villagers of village

Mahalpura Kachhi, Baroli Brahmin, Kandoli Khata Bakoli Tehsil Roopwas, DB Civil Writ Petition No.

4409/03 has been filed by Gani Mohd., the Sarpanch of Gram Panchayat Dhulap. All these writ

petitions highlight the aforesaid issue of environmental degradation due to mining activities being

undertaken in various areas of Bharatpur District. There writ petitions also indicate that at certain

places monuments of archaeological, historical and religious importance have been endangered due

to mining activities. Besides, these petitions highlight the damage to the hills and trees. Some of the

respondents have disputed the claims of the petitioners in these petitions in their replies.

10. DB Civil Writ Petition No. 2108/03, which has been filed by Chandra Prakash Dhakad, highlights

the issue of grant of lease for excavation of stones from the bed of Kali Sindh river situated in Tehsil

Anta District Baran as a result of which the free flow of water in the river has been hampered. The

respondents have denied this and have pleaded that leases have been sanctioned subject to the

condition that the mining activity should be carried in a manner that it does not adversely affect to

the free flow of water in the river.

11. DB Civil Misc. Application No. 332/04 is the application by one Giriraj Singh for permission to

intervene in D.B. Civil Writ Petition No. 7544/03 filed by Ashwani Chobisa. He claims to have filed

this petition in public interest to bring to the notice of this court the injury being suffered by

petitioner on account of illegal mining activities being permitted by the State inspite of the

directions of this court and contrary to the compliance report submitted by the State before this

court. According to him, mining lease No. 131/91 was granted initially in favour of Ram Avtar Soni

27.2.1992 which was transferred by him to Anoop Kumar Modi with the permission and consent of

the mining department given on 15.4.1996, who further transferred it in favour of the applicant

after seeking permission under Rule 15 of the Rajasthan Mining Mineral (Concession) Rules, 1960,

which was granted on 29.7.1999 and fresh lease-deed was executed in his favour on 7.10.1999.

Although his grievance is personal yet he has tried to submit that due to wide spread illegal mining in

the area, he has suffered losses because he is operating his mine as per the provisions of law.

According to him, he is not able to approach the concerned single bench of this Court because the

connected matter is in seizin of the Division Bench of this court. He has Referred to the various

orders of this Court, viz. order dated 17.12.2003, issuing notice in the aforesaid writ petition, order

dated 23.1.2004 directing the State Government to file response and in the mean-time to ensure

that no illegal mining is undertaken in the State of Rajasthan, order dated 24.2.2004, appointing a

committee of two advocates to inspect the mines in Jaipur, Alwar and Bharatpur districts and to

submit its report and further directing the State to comply with the circulars dated 27.1.1994 and

10.6.2003 of the Central Government and to submit compliance report of the order dated 4.9.2003,

passed in DB Civil Writ Petition No. 3879/02. He has also pointed out that this court has taken suo-

motu cognizance on 17.3.2004 of the fact that the orders of this court have not been complied with

and has summoned the Director and Secretary Mines, Govern- ment of Rajasthan to appear in

person.

12. DB Civil Writ Petition No. 2244/03 has been filed by one Babu Lal Jaju, Regional In-charge of the

People for Animals who has raised the issue of cutting of trees for conversion of National High Way

NO. 79 into four lane road under the National Road Development Scheme for which project the

Government has sanctioned Rs. 1500 crores. It is alleged by him that about 2,25,000 trees will be cut

down which will be most dangerous for environment. Besides, air and noise pollution will also

increase manifold due to movement of enhanced vehicular traffic on high speed on this road. He has

also claimed that the provisions of Forest (Conservation) Act, 1980 have also been flagrantly violated

in felling the trees.

13. The respondents have filed separate replies wherein they have stated that the figures with

regard to number of trees which have been cut for road widening are not correct. They have also

pleaded that 4,11,278 trees in lieu of 1,32409 trees which would be cut and removed are proposed

to be planted. The cutting of trees was necessary but sufficient amount has been deposited with the

State Government for plantation of trees by the consumer agency i.e. National High Way Authority

and the details of the deposit of amount have been mentioned in the reply of the respondent No. 2

and the reply also contains the number of trees so far planted. Petitioner Babulal Jaju also filed

another DB Civil Writ Petition No. 2245/03 touching almost the same issue of cutting of trees due to

road widening and failure of the State to carry out compensatory plantation of trees leading to

degradation of environment.

14. DB Civil Writ Petition No. 616/04 has been filed by one Arjun Lal Meena. It raises the issue of a

Nursery which has been developed by the Forest Department in Khasra No. 160, Khasra No. 1,

Khasra No. 91, and Khasra No. 258, measuring 5 Bigha 2 Biswas, 60 Bigha 9 Biswas, 2 Bighas 10

Biswas, 161 Bighas 15 Biswas respectively, situated in village Hardi Khurd, Tehsil Bassi which is

recorded as Gair Mumkin Pahad in the revenue records. It is alleged that about 80 illegal mines are

being operated in the area without prior permission of the Mining Department, Forest Department

and the Rajasthan State Pollution Control Board which has resulted into wide spread pollution and

consequence damage to the crops and adverse effect on the health of the citizens. The FIR lodged by

him in this regard with the police is also of no avail.

15. We have heard learned counsel for the parties and have perused the materials placed before us

including the reports of the committee as well as the eco-friendly Mining Plan prepared and

submitted by the State. It may be pointed out that we had appointed a Committee by order dated

February 24, 2004 for inspection of mines in various areas. Pursuant to our directions the Committee

inspected the areas and gave its report. From a perusal of the report, it is apparent that most of the

miens were operating without complying with various orders of this Court which were issued in

several connected matters. We have referred to the report in our order dated April 21,2004 passed

in D.B. Civil Writ petition No. 7544/2003. In the nut shell the report points out that by the operation

of the mines, large scale environmental degradation has taken place. Most of the mine operators are

insensitive to demand of ecology. Their activities are not compatible with and congenial to the

environment. From the report it is also manifest that the eco-friendly plan which is being submitted

by the mine operators to the Mining Department before securing permission to operate the mines is

a mere paper formality and the same is not being complied with. The report also reflects that the

ecology is being divested by illegal and unscientific mining, which is taking place unabated in most of

the areas. Even no pillar or boundary marks have been fixed by the mine operators to demarcate the

areas allotted to them. It appears that due to lack of supervision on the part of the mining

Department, the mine operators have a felling that they are the master of what they survey and

they will exploit the mines in the manner they like. They are carrying on mining operations even

beyond the mining areas allotted to them.

16. A study of Environmental Problems of Aravali Hills and Preparation of Action Plan for Restoration

of Environmental quality was initiated by the Central Pollution Control board and the work was

entrusted by it to the Central Mine Planning and Design Institute Limited (CMPDIL), a subsidiary of

Coal India Limited, with the following objectives:-

1. To prepare status report of the problems of pollution in Aravali Hills;

2. To prepare environmental management plan to abate various environmental problems; and

3. To prepare action plan for restoration of environmental quality.

The executive summary given at the threshold of the report is instructive and may be quoted:

"Ministry of Environment & Forests, Government of India, vide Gazette Notification dated 7th May,

1992 has prohibited certain developmental and industrial activities on certain lands in Alwar district

of Rajasthan and Gurgaon district of Haryana. In the Aravali Hills, a large number of ming activities,

operation of stone crushers and pulverisers, deforestation and unplanned construction activities are

causing environmental degradation. These mines are usually located in clusters in remote mineral

rich districts/areas where living standards is lower and understanding of people towards

environmental impacts is also poor. In the past, mine operators look no note even conscious about

it. The attitude of mining community is to ignore the environmental concerns. In majority of the

cases, the environmental concerns are ignored for making quick profits. The small mines ( 5

hectares) and the mining of 'minor minerals' which are no doubt small individually but have

damaging characteristics when in clusters e.g. the mines of granite, marble, slates, quartzite etc.

(falling under minor minerals) are no less damaging than the others, especially when the processing

a taken into consideration. The mining activities in the region results in disturbance of land surface,

altering drainage pattern and land use, besides the pollution problems. This may lead to the

following environmental problems:

Air Pollution

Water Pollution

Noise Pollution

Problems related to solid waste management.

Environmental Problems - The CMPDI & CPCB made several visits to the District and held extensive

discussions with mine/crusher unit operators, State and Central Government officials. Based on the

study and discussions, the environmental problems in the Aravali Range in the district have been

identified and remedial measures including the pollution control guidelines and action plan for

various stakeholders have been suggested. The following are the environmental problems identified

in the Aravali Hills in the district:

Vide Gazette Notification of ministry of Environment & Forests dated 7th May, 1992, Government of

India has restricted various developmental and industrial activities in Alwar district. For

environmental clearance of the projects proponent has to submit Environmental Statement Report

along with Environmental Management Plan.

In large-scale mining projects, the applicant is asked to submit detailed mine plans on mining and

processing methods, the technology being used, the financing plan and the environmental

management plan (including reclamation) and the training and local benefits envisaged but what it

still require is a proposal on district level as to what will be mind, how it will be mined and with what

method, how the financing will be arranged, what are the areas of environmental concerns (keeping

in view the regional character) which need to be addressed by the entrepreneur. This does not seem

to be adequately addressed keeping in view the environmental degradation of the Aravali Hills.

The Aravali Notification restricts process and operations under certain categories of the land in the

district. Though the records of such lands are available at every village level map, there is not record

available in the district level in respect of these areas to undertake realistic appraisal & effective

monitoring of mining and other projects at the macro level on such lands.

Vide Gazette Notification of Ministry of Environment & Forests dated 29th November, 1999,

Government of India has interalia made provision for preparing the Master Plan integrating the

environmental concerns and the future land use of the area."

The situation which is prevalent in Alwar also seems to be prevalent in the other parts of the State as

is evident from the report of the aforesaid two member Committee. By and large the mine operators

are interested in making money at the cost of environment. They are not being benign to the

environment.

(17). In M.C. Mehta v. Union of India and Ors. (3), the Supreme Court, while dealing with the

question of mining operations in the Aravali range has observed as under:-

"The Aravali is the most distinctive and ancient mountain chain of peninsular India, mark,the site of

one of the oldest geological formations in the world. Heavily eroded and with exposed outcrops of

the slate rock and granite, it has summits reaching 4950 feet above sea level. Due to its geological

location, the Aravali range harbours a mix of Saharan, Ethiopian, Peninsular, oriental and even

Malayan elements of flora and fauna. In the early part of this century, the Arrival's were well

wooded. There were dense forests with water falls and one could encounter a large number of wild

animals. Today, the changes in the environment at Aravali are severe. Though one finds a number of

tree species in the hills, timber quality trees have almost disappeared. Despite the increase of

population resulting in increase of demand from the forest. It cannot be questioned nor has been

questioned that to save the ecology of the Aravali mountain, the laws have to be strictly

implemented. The Notification dated 7th May, 1992 was passed with a view to strictly implement

the measures to protect the ecology of the Aravali range. The Notification was followed more in its

breach."

It cannot be and has not been disputed before us by either side that the State Government and its

concerned statutory authorities/functionaries are required to protect environment and ecology

including air and water from pollution. It ais also well settled that the pollution of environment, air

and water tantamounts to violation of the right to life guaranteed by Article 21 of the Constitution of

India as without these generous gifts of nature, it is not possible to enjoy life. In this regard the

Supreme Court in Virender Gaur and Ors. v. State of Haryana Ors. (4), has held as follows:

"The word 'environment' is of broad spectrum which brings within its ambit "hygienic atmosphere

and ecological balance." It is, therefore, not only the duty of the State but also the duty of every

citizen to maintain hygienic environment. The State in particular has duty in that behalf and to shed

its extravagant unbridled sovereign power and to forge in its policy to maintain ecological balance

and hygienic environment. Article 21 protects right to life as a fundamental right. Enjoyment of life

and its attainment including their right to life with human dignity encompasses within its ambit, the

protection and preservation of environment, ecological balance free from pollution of air and water,

sanitation without which life cannot be enjoyed. Any contra acts or action would cause

environmental pollution. Environmental, ecological, air, water, pollution etc. Should be regarded as

amounting to violation of Article 21. Therefore, hygienic environment is an integral facet of right to

healthy life and it would be impossible to live with human dignity without a humane and healthy

environment. Environmental protection, therefore, has now become a matter of grave concern for

human existence. Promoting environmental protection implies maintenance of the environment as a

constitutional imperative on the State Government and the municipalities, not only to ensure and

safeguard proper environment but also an imperative duty to take adequate measures to promote,

protect and improve both the man-made and the natural environment."

18. The UN Conference on Human Environment at Stockhom, declared that man has fundamental

right to freedom, quality and adequate conditions of life in an environment of quality and he bears a

solemn responsibility to protect and improve the environment. It urged the nation-states to

preserve the natural resources of the Earth including Air, Water, Land, Flora and Fauna. Stockholmn

Declaration, 1972 spelt out the aforesaid aspect of the principle thus:

'The natural resources of the Earth including the Air, Water, Lands, Flora and Fauna and especially

representative samples to natural eco-systems must be safeguarded through careful planning or

management, as appropriate.

It also declared that not-renewable resources of the earth must be managed in such a way as to

guard against the danger of their future exhaustion and to ensure that benefit from such

management are shared by all mankind.

19. Rio de Janerio Earth Summit (1992) is also of great significance, it declared two extremely

important principles. They are-Concept of Sustainable Development and Inter-generational Equity.

20. It has been observed in the case of Mahavir Nagar Vikas Samiti, Pali v. State of Rajasthan and

Ors. (5), by a Division Bench of this court (of which one of us Mr. Anil Dev Singh, CJ was a member),

has held as under:-

"In Indian civilization man never considered himself to be an overlord and every other creation to be

subservient to his interest. His activities did not disturb ecological balance. In ancient India it was an

offence to tinker with nature by defiling, destroying and desecrating it. Kautilya Arts Shastra is

testimony to the respect which was paid to the trees. Felling of trees was made severely punishable.

This is reflected in the following Shloka of the Arth Shastra:-

'Vrikshachhedaney dandaparushyan viddat.'

21. The natural resources such as air, water and soil cannot be utilized in a manner that results in

irreversible damage to them. There has been accelerated degradation of environment due to non-

compliance of the statutory provisions. The Supreme Court in Subhash Kumar v. State of Bihar (6),

have held that the right to live is a fundamental right under Article 21 of the Constitution and it

includes the right to the enjoyment of pollution free environment, air and clean water for full

enjoyment of life.

22. Therefore, we must make use of Articles 21, 48-A and 51- A(g) of the Constitution to protect and

preserve environment, ecology, including air, water, soil, trees and vegetation so that environment

is not sacrificed at the alter of economy.

23. In M.C, Mehta v. Union of India and Ors. (7), the Supreme Court has held that the life, public

health and ecology has priority over un-employment and loss of revenue.

24. The licensees and the illegal operators of mines are not prepared to sacrifice their short term

interest for the sake of safeguarding the long term interest of present and future generations.

Environmental pollution in fact results from mental pollution. It is their uncontrollable greed which

goads them to exploit the ecology by inflicting a permanent injury upon it. It is evident by looking at

the areas where mining is being undertaken the how the hills have been cut to exploit the minerals.

In some of the cases small hills have been plundered to the point of no return. The exploiters forget

that hills cannot be re-created once destroyed. Destruction of hills is an ecological disaster and is

irreversible. Even the mining at the cost of trees and vegetation is equally disastrous. But the mines

operators' are unmindful of the consequence as they are interested in making as much money as

possible by exploiting the nature. Articles 21, 48A and 51A(g) of the Constitution lay down the

foundation for the environmental jurisprudence with a view to protect, preserve and improve

ecology. Articles 21, 48A and 51A(g) echo the principle of inter-generational equity. They create right

of the unborn to the preservation of ecology for his survival. The present generation cannot be

allowed to rob the nature and deprive the future generation of its bounties. That means, the present

generation must act in consonance with the principles of sustainable development, a development

which is not at the cost of environment but is compatible with it.

The Supreme Court in A.P. Pollution Control Board v. Prof. M.V. Nayadu and Ors. (8), while dealing

with the principle of inter- generational equity has referred to Stockhom Declaration, 1972

emphasising that environment is-resource for survival of the present and future generations.

25. The development and the protection of environments are not antithetical to each other provided

the mining operations take place on scientific lines and are not undertaken on hills, Reserved Forests

and adequate number of trees are planted in the mining area.

26. It was urged by the petitioners and rightly so that the grant for permission of mining and

approving mining plan and the scheme by the Ministry of Mines, Government of India by itself does

not mean that the mining operation can commence. Section 13 of the Mines and Minerals

(Development and Regulation) Act, 1957 (MMDR Act) and the Rules made thereunder deal interalia

with the aspect for grant of mining lease and not with commencement of the mining operation.

However, rules made Under Section 18 of the MMDR Act deal with commencement of mining

operations and steps required to be taken for protection of environment by preventing or

controlling any pollution which is capable of being caused by mining operations. A mining lease

holder is required to comply with the statutory provisions such as Environment (Protection) Act,

1986, Air (Prevention and Control of Pollution) Act, 1981, The Water (Prevention and Control of

Pollution) Act, 1974 and Forest (Conservation) Act, 1980. Mere approval of the mining plan would

not absolve the lease holder from complying with the other provisions. Rules 31 to 41 contained in

Chapter V of the Mineral Conservation and Development Rules, 1988 deals with the measures

required to the taken by the lessee for the protection of environment from any adverse effect of

mining or irreversible consequences thereof. These rules inter-alia provide that every holder of the

mining lease shall take all possible pre-cautions for the protection of environment and control of

pollution. While conducting mining operations every holder of a prospecting licence or mining lease,

must remove the top soil, wherever it exists, and it to be excavated for prospecting or mining

operations separately for the purpose of restoration or rehabilitation of the land once it is no longer

required for mining operations: The holder is also required to take steps so that the overburden,

waste, rock, rejects and fines generated during prospecting and mining operations or tailings, slims

and fines produced during sizing, salting and beneficiation or metallurgical operations shall be stored

in separate dumps which shall be properly secured to prevent escape of material therefrom in

harmful quantities, which may cause degradation of environment. These measures are not required

to remain only on paper but strictly complied for the protection of environment and control of

pollution as a result and consequence of mining operations.

27. Most of our environmental problems would be solved in case the State and the people acquire

kind and reverential attitude towards the nature. In ancient India, mountains were venerated, they

being sources of rivers, flora, fauna and various other life-sustaining materials, and habitats for birds

and animals. People were aware of the great usefulness of the mountains in helping cloud formation

and ultimate breaking of rains over parched lands, rendering them fertile to satisfy the need of the

human beings and animals, for food.

28. In the past, man understood nature better. He preserved and protected the same. For its

kindness, he used to prostrate before it. Gratitude was expressed by feeling of love and admiration

for nature. In contract, today, nature is being plundered for short term gains, the kindness of

mountains is being returned by denuding them of trees, fauna and flora. Birds and animals are being

killed. Man is not mindful of the fact that trees are the very life line of human existence.

29. In order to protect and preserve ecology the Ministry of Environment and Forests, Government

of India issued two notifications dated 7th May, 1992 and 27th January, 1994. Notification dated 7th

May, 1992 issued under Section 3 (1) and Section 3(2) (v) of the Environment (Protection) Act, 1986

and Rule 5(3) (d) of the Environment (Protection) Rules, 1986, imposes restrictions on certain

activities in specified area of Aravali Range, which are causing environmental degradation. It

prohibits the carrying on of the following process and operations, except with prior permission, in

the areas specified in the table appended to the notification:-

i) Location of any new industry including expansion modernization;

ii) (a) All new mining operations including renewals of mining leases.

(b) Existing mining leases in sanctuaries/national Park and areas covered under Project Tiger and/or

(c) Mining is being done without permission of the competent authority.

iii) Cutting of trees;

iv) Construction of any clusters of dwelling units, farms houses, sheds, community centers,

information centers and any other activity connected with such construction (including roads a part

of any infrastructure relating thereto)

v) Electrification (laying of new transmission lines).

The table specifies the following areas where carrying on of the processes and operations without

permission is prohibited:

i) all reserved forests, protected forests or any other area shown as "forest in the land records

maintained by the State Government as on the date of this notification in relation to Gurgaon

District of the State of Haryana and the Alwar District of the State of Rajasthan.

ii) All areas shown as:

a. Gair Mumkin Pahar, or

b. Gair Mumkin Rada, or

c. Gair Mumkin Behed, or

d. Banjad Beed, or

e. Rundh

Another notification was issued by the Government of India on 27th January, 1994. This notification

has been amended from time to time. It applies to entire country and requires preparation of

environmental plan by proponent of a project. It directs that on and from the date of publication of

the notification expansion or modernization of any activity shall not be undertaken in any part of

India unless it has been accorded environmental clearance by the Central Government in accordance

with the procedure specified in the notification. A person desirous of seeking environmental

clearance for the projects has to fulfill the following requirements and to follow the below

mentioned procedure:-

"1(a) Any person who desires to undertake any new project in any part of India or the expansion of

modernization of any existing industry or project listed in the Schedule-I shall submit an application

to the Secretary, Ministry of Environment and Forests, New Delhi.

The application shall be made in the proforma specified in Schedule-II of this notification and shall

be accompanied by a project report which shall, inter alia, include an Environmental Impact

Assessment Report, an Environment Management Plan and details of public hearing' as specified in

Schedule IV prepared in accordance with the guidelines issued by the Central Government in the

Ministry of Environment and Forests from time to time. However, Public Hearing is not required in

respect of (i) small scale industrial undertakings located in (a) notified/designated industrial

areas/industrial estates or (b) areas earmarked for industries under the jurisdiction of industrial

development authorities; (ii) widening and strengthening of highways; (iii) mining projects (major

minerals) with lease area upto 25 hectares, (iv) units located in Export Processing Zones, Special

Economic zones and (v) modernization of existing irrigation projects.

(b) Cases rejected due to submission of insufficient or inadequate data and Plans may be reviewed

as and when submitted with complete data and Plans. Submissions of incomplete data or plans for

the second time would itself be a sufficient reason for the Impact assessment Agency to reject the

case summarily.

II. In case of the following site, specific projects:

(a) mining;

(b) pit-head thermal power stations;

(c) hydro-power, major irrigation projects and/or their combination including flood control;

(d) ports and harbours (excluding minor ports);

(e) prospecting and exploration of major minerals in areas above 500 hectares;

The project authorities will intimate the location of the project site to the Central government in the

Ministry of Environment and Forests while initiating any investigation and surveys. The Central

government in the Ministry of Environment and Forests will convey a decision regarding suitability

or otherwise of the proposed site within a maximum period of thirty days. The said site clearance

shall be granted for a sanctioned capacity and shall be valid for a period of five years for

commencing the construction, operation or mining.

III(a) The reports submitted with the application shall be evaluated and assessed by the Impact

Assessment Agency, and if deemed necessary it may consult a committee of Experts, having a

composition as specified in schedule III of the Notification. The Impact Assessment Agency (IAA)

would be the Union Ministry of Environment and Forests. The Committee of Experts mentioned

above shall be constituted by the Impact Assessment Agency or such other body under the Central

Government authorized by the Impact Assessment Agency in this regard.

(b) The said Committee of Experts shall have full right of entry and inspection of the site or as the

case may be, factory premises at any time prior to, during or after the commencement of the

operations relating to the project.

(c) The Impact Assessment-Agency shall prepare a set of recommendations based on technical

assessment of documents and data, furnished by the project authorities, supplemented by data

collected during visits to sites or factories if undertaken, and details of public hearing.

The assessment shall be completed within a period of ninety days from receipt of the requisite

documents and data from the project authorities and completion of public hearing and decision

conveyed within thirty days thereafter.

The clearance granted shall be valid for a period of five years for commencement of the construction

or operation of the project. No construction work, preliminary or otherwise, relating to the setting

up of the project may be undertaken till the environmental and site clearance is obtained.

IV. Order to enable the Impact Assessment Agency to monitor effectively the implementation of the

recommendations and conditions subject to which the environmental clearance has been given, the

project authorities concerned shall submit a half yearly report to the Impact Assessment Agency

shall make compliance reports publicly available.

V. If no comments from the Impact Assessment Agency are received within the time limit, the

project would be deemed to have been approved as proposed by project authorities.

3. Nothing contained in this Notification shall apply to:

(a) any item falling under entry Nos. 3, 18 and 20 of the Schedule- 1 to be located or proposed to be

located in the areas covered by the Notifications S.O. No. 102 (E) dated 1st February, 1989, S.O. 114

(E) dated 20th February, 1991; S.O. No. 416 (E) dated 20th June, 1991 and S.O. No. 319 (E) dated 7th

May, 1992.

(b) any item falling under entry Nos. 1,2,3,4,5,9,10,13,16,17,19,21,25 and 27 of Schedule I if the

investment is less than Rs. 50 Crores.

(c) any item reserved for Small Scale Industrial Sector with investment less than Rs. 1 crore.

(d) defence related road construction projects in border areas.

(e) any item falling under entry No. 8 of Schedule I covered by the Notification G.S.R. 1037 (E) dated

5th December, 1989.

4. Concealing factual data or submission of false, misleading data/reports, decisions or

recommendations would lead to the project being rejected. Approval, if granted earlier on the basis

of false data, would also be revoked. Misleading and wrong information will cover the following :-

False information

False data

Engineered reports

Concealing of factual data

False recommendations or decisions."

30. According to the Notification dated 27th January, 1994, any person desirous of undertaking any.

new project in any part of India or desirous of expansion or modernization of any existing industry

on the project listed in Schedule-1 thereto shall submit an application to the Secretary, Ministry of

Environment & Forests, New Delhi. Schedule-I contains lists of projects requiring environmental

clearance from the Central Government. The list includes major mineral mining projects with lease

area of more than 5\hctrs. The application is required to be made in proforma specified in Schedule-

II of the Notification and the application is required to be accompanied by a project report which,

inter alia, includes environmental impact assessment report, environmental management plan and

the details of public hearing as specified in Schedule-IV of the Notification. The Notification also lays

down the procedure for seeking environmental clearance for prospecting and exploration of the

major minerals leases above 5 hctrs. Whenever, any expansion or modernization of any existing

mining project relating to major minerals with lease area of more than 5 hctrs is planned to be

undertaken, the procedure for applying for the approval of the Central Government must be

followed. Without environmental impact assessment report and environmental management plan,

the application cannot be made. The State Government should not allow any person to exploit the

mineral without the permission of the Central Government.

31. According to the Notification of the Central Government dated 29th November, 1999 which was

issued is exercise of the power conferred by Section 23 of the Environment (Protection) Act, 1986,

read with sub-rule (4) of Rule 5 of the Environment (Protection) Rule, 1986, the Central Government

delegated the powers conferred on it for adopting measures for protecting and improving the

quality of the environment and preventing, controlling and abating environmental pollution, to be

exercised also by the State Government as notified in the Notification of the Government of India in

the Ministry of Environment and Forests vide S.O. No. 319(E) dated 7th May, 1992 subject to the

following conditions:

(1) the State Government concerned, namely, Haryana and Rajasthan shall constitute an Expert

Committee for each state as per the composition given in the Schedule-I annexed to this

Notification;

(2) each State Government shall also constitute a Monitoring Committee, under the chairmanship of

the District Collector concerned (Gurgaon in Haryana and Alwar in Rajasthan) as given in the

Schedule-II annexed to this Notification which shall inter alia monitor the compliance of the

conditions stipulated while according environmental clearance by such State Government no report

to such State Government about the violations, if any, and the action taken thereon;

(3) The District Collectors of Gurgaon in Haryana and Alwar in Rajasthan shall be authorized by the

respective State Governments to take necessary action under Section 5 of the said Act in respect of

cases where the project proponents fail to implement to the conditions. The State Government is

also required to initiate steps to prepare a Master Plan for the development of the area covered by

the Notification S.O. 319(E) dated 7th May, 1992 integrating environmental concerns and keeping in

view the future land use of the area. The State Government is bound to prepare the Master Plan and

is also required to constitute an Expert Committee for each State and the Monitoring Committee

under the Chairmanship of the district Collector in accordance with Schedule-I and Schedule-II,

respectively. We have referred to these Notification with a view to direct the State Government not

to allow the mining operations in the concerned and specified areas without the compliance of the

provisions of the notification.

32. It was argued by learned counsel for the respondents, who have secured leases for exploiting

major minerals over areas above 5 hctrs, that for renewal of the lease they are not required to file

project management plans as the renewal of lease does not fall under para I (a). read with para 2 (a).

We regret our inability to agree with the submission of the learned counsel for the respondents.

When a lease expires and it is to be renewed it tantamounts to undertaking a new project and falls

within the province of the notification.

33. It is seen that by and large mine operators of major minerals in violation of the Notification of

the Government of India are carrying on the operations. The same is also true for other mine

operators as they are not complying with the environmental laws and requirement of Articles 21 and

51-A(g).

34. As already pointed out that on 23rd January, 2004, we had directed the State to specify as to

how many mining leases have been granted and how many lease-holders have got the consent of

the Rajasthan Pollution Control Board to operate the mines. We had also directed the State to look

into the circular of the Government of India dated 14th May, 2002, which pertains to alleged

violations'of the earlier Notification dated 27th January, 1994 and subsequent amendments thereto.

The State was also directed to ensure that no illegal mining is undertaken in the State of Rajasthan.

On 17th March, 2004, the State did not dispute before us the fact that every single mine operator

was required to take the consent/clearance from the Rajasthan Pollution Control Board before

operating the mines. It was not disputed that thousands of mines were being operated without

obtaining consent/clearance from the Pollution Control Board. Besides, it was also not disputed that

only 3,286/- operators had applied for consent from the Pollution Control Board, while thousands of

others had yet to apply to the Board for consent to operate the mines. On 17.3.2004, we expressed

our anguish for the State Government was allowing the mine operators to continue their mining

operations without the requisite consent/clearance from the Pollution Control Board. We had stated

in our order that the State Government had failed in its duty to ensure that eco-friendly mining

operations take place in the State. In these circumstances we directed the State Government to take

action in accordance with law and stop the mining operations which were taking place in

contravention of the provisions of law and Notifications of the Central Government dated 27th

January, 1994 and letter dated 10th June, 2003, which pertains to requirement to comply with the

Notification dated 27th January, 1994. We also directed that State to take steps to ensure that only

eco- friendly mining is permitted. It appears that after these orders the mining operations in

thousands of mines were stopped as the mine operators had not taken consent/clearance from the

Rajasthan Pollution Control Board before operating the mines. Thereafter, the Pollution Control

Board in a matter of few days granted the permissions to the thousands of mining operators, after

they had submitted eco-friendly mining plans. We fail to appreciate how in a short span of time the

Pollution Control Board could give consent/clearance to thousands of mine operators. It appears

that the grant of consent/clearance by the Rajasthan Pollution Control Board was a mere formality,

without seriously considering the question whether or not the activities of the mine operators were

compatible with the environment. It also seems to us that the State and the most of the mine

operators have exhibited callous and insensitive disregard towards environment. Because of the

mining operations which are not in consonance with ecology the following damages have been

caused:-

(i) Loss of forests;

(ii) Pollution of water resources;

(iii) Loss of vegetation and plantation;

(iv) Disappearance of hills;

(v) Destruction of catchment areas;

(vi) Deep pits/craters appear in the hills and other areas due to pervasive mining; and

(vii) Soil erosion.

35. This court has also held in the case of Mahavir Nagar Vikas Samiti Pali v. State of Rajasthan and

Ors. (supra), that the State, its functionaries, the citizens and the courts have a special duty to

discharge in the protection of the environment. The intervention of the High Court to protect

environment and to prevent degradation of ecology is sanctioned by the Constitution. Under the

Constitution, the High Court Court has to act as a sentinel on the qui vive to protect the fundamental

right to life guaranteed under Article 2 V of the Constitution, which inter alia mandates protection

and preservation of the bounties of nature, including water, land, air etc. without which it is not

possible to enjoy life. Courts have by invoking Article 21 of the Constitution of India and the other

provisions of the environmental laws endeavoured to reverse the tide of pollution by passing various

directions to preserve the ecology. Here also, the High Court having come across flagrant violation of

the environmental laws/rules, the various orders of the High Court and the Supreme Court is

required to intervene and pass suitable directions for the protection and preservation of ecology.

36. It is the case of the petitioners that several mine operators are winning the minerals through use

of explosive substances. Rule 113 of the Explosive Substances Rules, 1983 provides that no person

shall possess, sell or use any explosive substance except in accordance with the licence granted

under these Rules. Sub-clause (2) of Rule 113 provides that the licensee shall be responsible for all

operations, in connection with the possession, sale or use of explosives, which may be conducted in

the premises covered by the licence. A reading of Rule 113 leaves no manner of doubt that not only

a licensee is required to possess the explosive substances but the premises are also required to be

covered by the licence. No person can claim that the premises in which the explosive substances are

to be used may not be licensed.

37. From the material on record it also appears that crushers are another source of pollution, since

most of them are not using pollution control devices and are violating various environmental laws.

38. In view of above discussion, it appears to us that the grievance of the petitioners is factually and

legally well founded and directions need be issued to the State Government to discharge its

constitutional obligations and duties for the protection of environment and to implement the

provisions of various enactments in this regard and to ensure that no further environmental

degradation taken place.

39. It is, therefore, directed that:

(1) The State and its statutory authorities/functionaries shall ensure actual implementation of the

eco-friendly mining plan, in its true letter and spirit and shall not treat it as a merely paper formality;

(2) The State and its functionaries shall ensure that the mining activities in the State of Rajasthan are

carried on after obtaining proper consent/clearance from the concerned authorities and in

accordance with the provisions of the law and the rules and also the orders of the Supreme Court

and this court issued from time to time;

(3) The State shall ensure that illegal un-scientific and un-systematic mining operations shall not be

permitted to be carried on unless mining lease holders adopt and adhere to the norms prescribed

under the law and the rules;

(4) The State shall take immediate steps to ensure compliance of the recommendations made in the

report of the Central Mine Planning, Design Institute Ltd., Gondwana, Place Kantac Road, Ranchi;

(5) The State shall ensure that the stone crushers comply with the norms laid down under the

Environmental Protection Act, 1986 and MMDRAct.

(6) The State shall take effective steps for reclamation of abandoned mines by having them filled up

by over burden, waste and fly ash from the thermal power plants.

(7) Mines from which water is being discharged should be closed to prevent wastage of water and

depleting of ground water;

(8) The State shall designate and earmark sites for dumping the over-burden;

(9) All out efforts should be made for plantation of trees in the mining areas as well as along the

National High Way No. 79, where trees have been cut in large number for widening of the road. The

number and variety of trees, vegetation and shrubs to be planted in the mining areas shall be as per

the advice of the Forest Department. No mining activity shall take place before planting of trees,

shrubs and vegetation in accordance with the advice of the Forest Department and acing

thereupon. That apart the mine owners shall secure a certificate from the Forest Department

certifying the extent and nature of the plantation which is required to be undertaken;

(10) The mine owners shall not be allowed to increase their production without receiving the

permission from the Ministry of Environ- ment and consent from the Rajasthan Pollution Control

Board.

With these observations, all the writ petitions and misc. application are disposed of. The contempt

petitions are not being decided and the same be listed before the appropriate Bench for further

proceedings.


Writ Appeal No. 170 of 2001

Appellants: The District Forest Officer, Sathyamangalam Division Vs.

Respondent: M. Irulappan: Decided On: 03.11.2004

Hon'ble Judges:

P.D. Dinakaran and T.V. Masilamani, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: P. Rathinavel, Government Adv.

For Respondents/Defendant: C. Selvaraj, Senior Counsel for S. Mani


Subject: Civil

Catch Words:

Interim Order, Motor Vehicle

Acts/Rules/Orders:

Tamilnadu Forest Act - Sections 39(1), 50(4), 51(2), 52, 54, 54(1) and 54(2)

Disposition:

Appeal dismissed

JUDGMENT

P.D. Dinakaran, J.

1. The appellant is the respondent in the writ petition (hereinafter referred to as "the Forest

Department") filed by the respondent herein (hereinafter referred to as "the writ petitioner"),

challenging the power of the Forest Department to confiscate the vehicle of the writ petitioner

under the provisions of the Tamilnadu Forest Act (hereinafter referred to as "the Act").

2. Concededly, action was initiated against the writ petitioner for having attempted to hunt in

contravention of the provisions of the Act and the same was compounded by the Forest Department

themselves invoking the power conferred under Section 54 of the Act. However, the Forest

Department did not release the vehicle used for the said contravention of the provisions of the Act,

but confiscated the same by an order dated 1.2.2000, which is impugned in W.P. No. 8813 of 2000.

3. According to the Forest Department, the vehicle, vessels, weapon, trap or tool which are used for

committing an offence are liable to be seized as per Section 39(1)(d) of the Act, and the animal or

any vehicle, vessel, weapon, trap or tool used in such hunting shall be the property of the Central

Government as per Section 39(1)(b) of the Act, and therefore, it is contended that the impugned

vehicle of the writ petitioner, namely Jeep bearing registration No. TN-33-E-5979 was rightly

confiscated by the Forest Department.

4. However, the learned Government Advocate appearing for the Forest Department admitted

before the learned Single Judge that the vehicle could not be confiscated on the basis of the

provisions as available in the statute. The learned single Judge, by order dated 15.12.2000,

therefore, finding that Section 39(1)(d) of the Act even though empowers the authorities under the

Act to seize the vehicle, it does not empower them to confiscate the vehicle, held that the vehicle

used for the alleged contravention of the provisions of the Act, after compounding the said

contravention, could not be confiscated automatically and thus, directed the Forest Department to

release the vehicle on production of the said order. Hence, the above writ appeal by the Forest

Department.

5.1. Mr. P.Rathinavel, learned Government Advocate appearing for the Forest Department, submits

that the vehicle automatically shall become the property of the Government as per Section 39(1)(b)

of the Act and the confiscation of the vehicle is valid as the offence had been compounded invoking

Section 54 of the Act.

5.2. Placing reliance on Section 52 of the Act, the learned Government Advocate contends that

whoever attempts to contravene or abets the contravention of, any of the provisions of this Act or of

any rule or order made thereunder shall be deemed to have contravened that provisions or rule or

order, as the case may be, and therefore, even though the Forest Department had not tried the writ

petitioner for any specific offence, as the same was compounded under Section 54 of the Act, there

is no necessity to pass an independent order of forfeiture.

5.3. According to the learned Government Advocate, the order passed by the Forest Department

compounding the offence becomes conclusive and therefore, the impugned jeep becomes the

property of the Government. Hence, no separate proceedings are required to confiscate the vehicle.

6. Per contra, Mr. C.Selvaraj, learned Senior Counsel appearing for the writ petitioner submits that in

the absence of any specific power to confiscate the vehicle, vessel, weapon, trap or tool that has

been used for committing the alleged offence, the same are not liable to be confiscated.

7. We have given careful consideration to the submissions of both sides.

8.1. It is true that as per Section 39(1)(b) of the Act, any animal or any vehicle, vessel, weapon, trap

or tool used in such hunting shall be the property of the Central Government and Section 39(1)(d) of

the Act empowers the authorities under the Act to seize the vehicle, vessels, weapon, trap or tool

that has been used for committing the offence. But, Section 50(4) of the Act provides that any

person detained, or thing seized shall forthwith be taken before a Magistrate to be dealt with

according to law; and Section 51(2) of the Act provides that the Court trying the offence may order

that any captive animal, wild animal, animal article trophy, uncured trophy, meat, ivory imported in

to India or an article made from such ivory any specified plant or derivative thereof in respect of

which the offence has been committed and any trap, tool, vehicle vessel or weapon used in the

commission of the said offence be forfeited to the State Government.

8.2. On the other hand, even though Section 54 of the Act empowers the authorities to compound

an offence, no power is provided under Section 54 to forfeit the properties to the State Government

automatically. As per Section 54(1)(b) of the Act when any property has been seized as liable to be

forfeited, to release the same on payment of the value thereof as estimated by such officer, and

Section 54(2) of the Act provides that on such payment, the property other than Government

property, if any, seized, shall be released, making it clear that no further proceedings in respect of

the offence shall be taken against such person.

8.3. Of course, an argument is made on behalf of the Forest Department that a combined reading of

Sections 39(1)(b), 54(1)(b) and 54(2) of the Act would lead to the conclusion that the vehicle, vessel,

weapon, trap or tool which is used for committing of the offence would be seized and by an act of

seizure they shall become the property of the Government and consequently, they are not entitled

to be released as they have been excluded from the purview of release in view of the specific

provision provided under Section 54(2) of the Act, which reads as follows:

"Section 54: Power to compound offence:

(1) ....

(2) On payment of such sum of money or such value, or both as the case may be, to such officer, the

suspected person, if in custody, shall be discharged, and the property, other than Government

property, if any, seized, shall be released and no further proceedings in respect of the offence shall

be taken against such person."

8.4. We are unable to appreciate the above argument advanced on behalf of the Forest Department,

as it would otherwise render Section 54(1)(b) of the Act redundant. From a harmonious reading of

Chapters V and VI of the Act, only two procedures are permissible under the scheme of the Act,

namely (i) to try the offence punishable under the Act and to pass orders with regard to the vehicle,

vessel, weapon, trap or tool which is used for the commission of the offence, seized by the

authorities under the Act for forfeiture of the same to the Government; or (ii) to compound the

offence by exercising the power conferred under Section 54 of the Act and initiate proceedings for

estimating the value of the property seized and pass appropriate orders for the release of the same.

In any event, we do not see any power under the scheme of the Act to confiscate the vehicle, vessel,

weapon, trap or tool automatically, merely based on the order of compounding the offence under

Section 54 of the Act.

9. Finding, therefore, no reasons to interfere with the order of the learned Single Judge dated

15.12.2000 made in W.P. No. 8813 of 2000, the writ appeal is dismissed. No costs.

10. At this stage, it is brought to our notice that by an interim order dated 12.12.2002 made in

W.A.M.P. No. 3479 of 2002, the jeep bearing registration No. TN-33-E-5979 had already been

released on condition that the writ petitioner shall furnish a bank guarantee to the satisfaction of

the District Forest Officer, Sathyamangalam, for the value which shall be assessed by the concerned

Motor Vehicles Inspector. In view of the dismissal of the above writ appeal, the condition imposed in

the said order dated 12.12.2002 made in W.A.M.P. No. 3479 of 2002 shall now stand discharge.


W.P. Nos. 2570 and 9139 of 2000 and W.M.P. Nos. 3964 and 13441 of 2000

Appellants: Tamil Nadu Pollution Control Board rep. by its Member Secretary

Vs.

Respondent: The State Human Rights Commission rep. by its Member Hon'ble R. Rathinasami,

Association of Radio and Television Engineering Employees All India Radio rep. by its Unit Secretary

and S.P. Muthuraman President, Tamil Manila Congress Youth Wing:Decided On: 04.11.2004

Hon'ble Judges:

B. Subhashan Reddy, C.J. and A. Kulasekaran, J.

Counsels:

For Appellant/Petitioner/Plaintiff: Rita Chandrasekaran, Adv.

For Respondents/Defendant: V.R. Balasubramanian, Adv. for R1


Catch Words:

Abatement, Air Pollution, Biological Diversity, Covenant, Damage, Hazardous Substance, Hazardous

Waste, Industrial Plant, Mandamus, Negligence, Noise Pollution, Non-Governmental Organisation,

Ozone Depleting Substance, Pollution Control, Public Health

Acts/Rules/Orders:


Cases Referred:

Paramjit v. State of Punjab, AIR 1999 SC 340; M.C. Mehta v. Union of India and Ors., AIR 1988 SC

1115; B. Vadhera v. Union of India, 1996 7 SCC 594; Polli Setti v. Kalluri Kameshwaramma, AIR 1991

SC 604; Shashikant Laxman Kale v. Union of India, AIR 1990 SC 2114

JUDGMENT

A. Kulasekaran, J.

1. The prayer in WP No. 2570 of 2000 is for a Writ of Certioarified Mandamus to quash the enquiry

proceedings in Case No. 1444/rrs/99 in pursuance of the impugned order dated 07-12-1999 of the

first respondent and direct the first respondent herein not to entertain any complaint or matters

relating to 'pollution' in the State of Tamil Nadu.

2. The prayer sought for in WP No. 9139 of 2000 is for a Writ of Certiorarified Mandamus to call for

the records and to quash the enquiry proceedings in Case No. 1025/RRS/2000 in pursuance of the

impugned order dated 17-05-2000 in so far as the petitioner/Board is concerned and direct the first

respondent herein not to entertain any such complaint or matters relating to 'pollution' in the State

of Tamil Nadu.

3. The case of the second respondent in WP No. 2570 of 2000 is that they have given a complaint to

the first respondent herein that M/s. Sterlite Industries Limited, Tuticorin, which is a copper smelter

plant, emits sulphur dioxide which settles down in the vicinity of the factory causing air pollution, as

a result, the people of the vicinity including the employees of the second respondent are seriously

affected. The first respondent, on the complaint of the second respondent felt it necessary to hold

enquiry and issued the impugned notice. The facts involved in the case is that W.P. Nos. 15501 to

15503/1996, 5789/1999 and 16861 of 1998 were filed seeking common relief of quashing the

clearance given by the Ministry of Environment and Forest and Tamil Nadu State Environment

Committee. When the said writ petitions are pending, the first respondent has issued the impugned

notice dated 07-12-1999 to the writ petitioner alleging pollution caused by the Sterlite Industries

and for its closure.

4. The case of the second respondent in WP No. 9139 of 2000 is that it has given a complaint to the

first respondent stating that M/s. India Cements Limited is causing air pollution which affects the

public and also agricultural activities in the locality. On the said complaint, the first respondent felt it

necessary to hold an enquiry and issued the impugned notice to the petitioner. The facts involved in

this case is in respect of alleged violation caused by India Cements Limited, Shankar Nagar,

Tirunelveli, writ Petitions are filed in WP No. 7822 and 13508 of 1998 seeking direction to prevent

the smoke emanated from the said factory and to assess the damages caused to the residents due to

the said pollution. When the said writ petitions are pending, the first respondent issued notice dated

17-05-2000 to the petitioner alleging pollution caused by India Cements Limited and to assess the

alleged damages caused to the residents.

5. The common grounds taken in the writ petitions by the petitioners is while the writ petitions are

pending in respect of the same subject matter before the Green bench of this Court, the first

respondent is prohibited under Regulations (g) of Regulations 9 of State Human Rights (TN)

(Procedure) Regulations, 1997. The enquiry proceedings initiated by the first respondent would lead

to multiplicity of cases and encourage unnecessary and unlimited litigation. It is not proper for the

first respondent Commission to entertain the complaint against the Tamil Nadu Pollution Control

Board in respect of matters relating to pollution, which falls under the provisions of Water Act, Air

Act and Environment (Protection) Act. Any such action by the first respondent will defeat the very

purpose of the aims and objects of the various Acts, under which the Board functions and exercising

its statutory powers and it is an appellate authority constituted under the respective Acts and Rules.

Under Section 23 of the Environment Act, 1986, the Central Government has delegated powers

vested in it under Section 5 of the Act to the Tamil Nadu Government by notification of the Ministry

of Environment and Forest dated 10-02-1988, in and by the said notification, the State Government

can also issue directions in writing to any persons, officers or any authority for closure or prohibition

or regulation of any industrial operation or process and such person shall be bound to comply with

such conditions. The Central Government, under the Environment (Protection) Act constituted the

Loss of Ecology (Prevention and payment of Compensation) authority for the State of Tamil Nadu,

which is vested powers under Section 5 of the Environment Act and also assess loss to the ecology

and environment for the affected areas and identify the individual and families which suffered

because of the pollution, while so, if any person is aggrieved in respect of any pollution, they can

seek the remedy with the said authority and there is no need to entertain any complaint by the first

respondent. Section 16 of Protection of Human Rights Act contemplates that persons likely to be

prejudicially affected to be heard. If on any such of the enquiry, the Commission considers it

necessary to enquire into the conduct of any person; or is of the opinion that the reputation of any

person is likely to be prejudically affected by the enquiry, it shall give to the person reasonable

opportunity of being heard in the enquiry and to produce evidence in his defence - provided that

nothing in this section shall apply where the credit of the witness is being impeached. By virtue of

the above provisions, the first respondent ought not have treated the petitioner as respondent in

the case before it, in the absence of any allegation against the petitioner in the complaint filed by

the second respondent in respect of either its conduct or reputation.

6. The first respondent/Commission has filed its counter in WP No. 2570 of 2000 stating that the

Commission is not aware of the case pending before this Court; that the violations committed by

third parties namely M/s. Sterlite Industries Limited within a period of one year prior to 26-04-1999;

that the subject matter pending before the Commission do not appear to be the subject matter of

the case pending before this Court; no documents were produced by the petitioner to show that the

subject matter of the case pending before this Court is the subject matter for which the Commission

has ordered notice under Section 16 of the Protection of Human Rights Act; that if there is a

complaint regarding deprivation of human right suffered by any person due to pollution or lack of

safety measures and clean environment, the Commission is empowered to hold an enquiry on such

complaint; that the averment that the Commission is not a civil Court and the Environment

(Protection) Act does not exclude the jurisdiction of the Commission; that under Section 10 (2) of the

Protection of Human Rights Act, the Commission is empowered to regulate its own procedure read

with Section 29 and the Commission framed its own regulation; that the Regulation 9 (g) provides

that the Commission shall dismiss in limine any complaint which are subjudice in a Court or Tribunal,

but the subject matter in dispute are not subjudice in a Court or Tribunal; Section 12 (a) of

Protection of Human Rights Act empowers the Commission to inquire suo motu or on a petition

presented to it by a victim or any person on his behalf, into the complaint of violation of human

rights or abatement thereof or negligence in the prevention of such violation by a public servant;

that the petitioner herein is a public servant and there is negligence on the part of the petitioner

herein in the prevention of such violation, hence, it had rightly proceeded against the petitioner;

that no immunity can be conferred upon the petitioner or its staff; that after receipt of the

complaint from the complainants, the Commission ordered notice to the petitioner and the

petitioner also appeared in person and later filed written statement; that before considering the

case on merits, the petitioner has approached this Court; that the Commission has never rejected

the objections of the petitioner and prayed for dismissal of the writ petitions.

7. Article 21 of the Constitution of India guarantees the life with dignity. This article worded with

simple language, its scope has been extended to life, liberty, education, health etc., since it is the

subject matter in large number of litigation. It prohibits deprivation of life or personal liberty except

due process of law. It essentially deals with personal liberty, it is expanded to cover environment

and public health. It concern about 'life' when deals with environment; and concern about 'liberty'

when deals with human rights.

8. Human right means the rights relating to life, liberty, equality and dignity of the individual

guaranteed by the Constitution or embodied in the International Covenants and enforceable by

Courts in India. Human Rights are those minimal rights, which every individual must have against the

State or other public authority by virtue of his/her being a member of the human family, irrespective

of any other consideration. The first documentary used the word human right is found in the charter

of the United Nations which was adopted at Sanfransisco on June 25, 1945 and ratified by majority

of signatories in October of that year. The first concrete step by way of formulating various human

rights was taken by United Nations General Assembly in December 1948 by adopting the Universal

Declaration of Human Rights. The Universal Declaration has operated merely as statement of ideals

which was not of the nature of legal binding covenants and no machinery was provided for its

enforcement. A deficiency was removed by United Nations General Assembly by adopting two

covenants in December 1956 which are the covenants of (i) civil and human rights and (ii) economic,

social and secular rights. Thereafter, the two covenants came into force in December 1976. The

history given supra shows the emergence of human rights.

9. In India, the Honourable Supreme Court has drawn inspiration from the international charters

with the result, Indian Courts attempted to interpret statutes to conform to Rules of International

Law or convention to which India is a party. The National Human Rights Commission is an expert

body in itself. It is also a body sui jurist created under the Protection of Human Rights Act, 1993, for

examining and investigating the question of complaints relating to violation of human rights as also

the negligence on the part of the public servants in preventing such violation Paramjit v. State of

Punjab - MANU/SC/0596/1998. The State Commission is also endowed with similar powers.

10. The relevant provisions of the Protection of Human Rights Act, 1993 runs as follows:-

Section 2 (1) (d) - Human rights means the rights relating to life, liberty, equality and dignity of the

individual guaranteed by the Constitution or embodied in the International Covenants and

enforceable by Courts in India.

Section 12. Functions of the Commission - The Commission shall perform all or any of the following

functions namely-

(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, into

complaint of-

(i) violation of human rights or abetment thereof; or

(ii) negligence in the prevention of such violation by a public servant;

(b) intervene in any proceeding involving any allegation of violation of human rights pending before

a Court with the approval of such Court.

(c) visit, under intimation to the State Government, any jail or any other institution under the control

of the State Government, where persons are detained or lodged for purposes of treatment,

reformation or protection to study the living conditions of the inmates and make recommendations

thereon;

(d) review the safeguards provided by or under the constitution or any law for the time being in

force for the protection of human rights and recommend measures for their effective

implementation;

(e) review the factors, including acts of terrorism that inhibit the enjoyment of human rights and

recommend appropriate remedial measures

(f) study treaties and other international instruments on human rights and make recommendations

for their effective implementation

(g) undertake and promote research in the field of human rights

(h) spread human rights literacy among various sections of society and promote awareness of the

safeguards available for the protection of these rights through publications, the media, seminars and

other available means;

(i) encourage the efforts of non-governmental organisations and institutions working in the field of

human rights;

(j) such other functions as it may consider necessary for the promotion of human rights.

Section 13. Powers relating to inquiries - (1) The Commission shall, while inquiring into complaints

under this Act, have all the powers of a Civil Court trying a suit under the Code of Civil Procedure,

1908 (5 of 1908), and in particular in respect of the following matters, namely;

(a) summoning and enforcing the attendance of witnesses and examining them on oath;

(b) discovery and production of any document;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from any Court or Office;

(e) issuing Commissions for the examination of witnesses or documents;

(f) any other matter which may be prescribed.

(2) The Commission shall have power to require any person, subject to any privilege which may be

claimed by that person under law (45 of 1860) for the time being in force, to furnish information on

such points or matters as, in the opinion of the Commission, may be useful for, or relevant to, the

subject matter of the inquiry and any person so required shall be deemed to be legally bound to

furnish such information within the meaning of Section 176 and Section 177 of the Indian Penal

Code.

(3) The Commission or any other officer, not below the rank of a Gazetted Officer, specially

authorised in this behalf by the Commission may enter any building or place where the Commission

has reason to believe that any document relating to the subject matter of the enquiry may be found,

and may seize any such document or take extracts or copies therefrom, subject to the provisions of

Section 100 of the Code of Criminal Procedure, 1973, in so far as, it may be applicable.

(4) The Commission shall be deemed to be a civil Court and when any offence as is described in

Section 175, Section 178, Section 179, Section 180 or Section 228 of the Indian Penal Code is

committed in the view or presence of the Commission, the Commission may, after recording the

facts constituting the offence and the statement of the accused as provided for in the Code of

Criminal Procedure, 1973, forward the case to a Magistrate having jurisdiction to try the same and

the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the

accused as if, the case has been forwarded to him under Section 346 of the Code of Criminal

Procedure, 1973.

(5) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the

meaning of Sections 193 and 228, and for the purposes of Section 196 of the Indian Penal Code, and

the Commission shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter

XXVI of the Code of Criminal Procedure, 1973.

Section 14 Investigation - (1) The Commission may, for the purpose of conducting any investigation

pertaining to the inquiry, utilise the services of any officer or investigating agency of the Central

Government or State Government with the concurrence of the Central Government or the State

Government, as the case may be.

(2) For the purpose of investigating into any matter pertaining to the inquiry, any officer or agency

whose services are utilised under sub-section (1) may, subject to the direction and control of the

Commission -

(a) summon and enforce the attendance of any person and examine him;

(b) require the discovery and production of any document; and

(c) requisitioning any public record or copy therefrom from any office

(3) The provisions of Section 15 shall apply in relation to any statement made by a person before any

officer or agency whose services are utilised under sub-section (1) as they apply in relation to any

statement made by a person in the course of giving evidence before the Commission.

(4) The officer or agency whose services are utilised under sub-section (1) shall investigate into any

matter pertaining to the inquiry and submit a report thereon to the Commission within such period

as may be specified by the Commission in this behalf.

(5) The Commission shall satisfy itself about the correctness of the facts stated and the conclusion, if

any, arrived at in the report submitted to it under sub-section (4) and for this purpose the

Commission may make such inquiry (including the examination of the person or persons who

conducted or assisted in the investigation) as it thinks fit.

Section 16. Persons likely to be prejudicially affected to be heard. If, at any stage of the inquiry, the

Commission -

(a) considers it necessary to enquire into the conduct of any person; or

(b) is of the opinion that the reputation of any person is likely to be prejudically affected by the

enquiry, it shall give to the person reasonable opportunity of being heard in the enquiry and to

produce evidence in his defence provided that nothing in this section shall apply where the credit of

the witness is being impeached.

Section 17. Inquiry into Complaints:- The Commission, while inquiring into the complaints of

violations of human rights may -

(i) call for information or report from the Central Government or any State Government or any other

authority or organisation subordinate thereto within such time as may be specified by it:

Provided that

(a) if the information or report is not received within the time stipulated by the Commission, it may

proceed to inquire into the complaint on its own;

(b) if, on receipt of information or report, the Commission is satisfied either that no further enquiry

is required or that the required action has been initiated or taken by the concerned Government or

authority, it may not proceed with the complaint and inform the complainant accordingly.

Section 21 -

Section 36. Matters not subject to jurisdiction of the Commission -

(1) The Commission shall not inquire into any matter which is pending before a State Commission or

any other Commission duly constituted under any law for the time being in force

(ii) The Commission or the State Commission shall not inquire into any matter after the expiry of one

year from the date on which the act constituting violation of human rights is alleged to have been

committed.

Regulation 8 of National Human Rights Commissions (Procedures) Regulations, 1997:-

8. General.- (a) Complaints may be made to the Commission in English or Tamil or Hindi or in any of

the languages included in the Eighth Schedule of the Constitution.

(b) No fee shall be chargeable on complaints

(c) The complaints should disclose a complete picture of the matter complained against. The

Commission may, if necessary call for further information and may direct affidavits to be filed in

support of the allegations, whenever considered necessary.

11. Environment protection is the watchword of the last 20th Century, however, during the last two

decades, there has been an increasing concern for an awareness towards environmental protection

at the domestic level as also international. The Honourable Supreme Court, while giving due

importance to the protection of environmental and having regard to the grave consequences of

pollution of water and air and need for protecting and improving the natural environment, which

construes to be one of the fundamental duties under the statutes had expressed the view in M.C.

Mehta v. Union of India and Ors. - MANU/SC/0586/1988 that it is the duty of the Central

Government to direct all the educational institutions throughout India to teach at least one hour in a

week lessons relating to protection and improvement of natural environment. Article 48A of the

Constitution provides for protection and improvement of environment and also safeguarding Forest

and wild life. Article 15-A of the Constitution provides interalia that it shall be the duty of every

Citizen of India to protect and improve and protect natural environment and to have compassion

with living creatures.

12. In India, we have sufficient legislations on the subject in the form of The Environment

(Protection) Act, 1986, Water (Prevention and Control) Act, 1974 and Air (Prevention and Control)

Act 1981. The Honourable Supreme Court, while interpreting Article 21 of the Constitution

(Protection for life and personal liberty) has held in B. Vadhera v. Union of India - 1996 7 SCC 594

that right to protection and water free from pollution falls within Article 21.

13. The relevant provisions of the Environment (Protection) Act, 1986.

Section 2. Definitions - In this Act, unless the context otherwise requires -

(a) 'environment' includes water, air and land and the inter-relationship which exist among and

between water, air and land, and human beings, other living creatures, plants, micro-organism and

property;

(b) 'environment pollutant' means any solid, liquid or gaseous substance present in such

concentration as may be, or tend to be, injurious to environment;

Section 10 : Powers of entry and inspection. - (1) Subject to the provisions of this Section, any person

empowered by the Central Government in this behalf shall have a right to enter, at all reasonable

times with such assistance as he considers necessary, any place.

(a) for the purpose of performing any of the functions of the Central Government entrusted to him:

(b) for the purpose of determining whether and if so in what manner, any such functions are to be

performed or whether any provisions of this Act or the rules made thereunder or any notice, order,

direction or authorisation served, made, given or granted under this Act is being or has been

complied with:

(c) for the purpose of examining and testing any equipment, industrial plant, record, register,

document or any other material object or for conducting a search of any building in which he has

reason to believe that an offence under this Act or the rules made thereunder has been or is being

or is about to be committee and for seizing any such equipment, industrial plan, record, register,

document or other material object if he has reasons to believe that it may furnish evidence of the

commission of an offence punishable under this Act or the rules made thereunder or that such

seizure is necessary to prevent or mitigate environmental pollution.

(2) Every person carrying on any industry, operation or process or handling any hazardous substance

shall be bound to render all assistance to the person empowered by the Central Government under

sub-section (1) for carrying out the functions under that sub-section and if he fails to do so without

any reasonable cause or excuse, he shall be guilty of an offence under this Act.

(3) If any person wilfully delays or obstructs any person empowered by the Central Government

under sub-section (1) in the performance of his functions, he shall be guilty of an offence under this

Act.

(4) The provisions of the Code of Criminal Procedure, 1973 (II of 1974), or in relation to the State of

Jammu and Kashmir, or any area in which that Code is not in force, the provisions of any

corresponding law in force in that State or area shall, so far as may be, apply to any search or seizure

under this section as they apply to any search or seizure made under the authority of a warrant

issued under Section 94 of the said Code or, as the case may be, under the corresponding provision

of the said law.

Section 11. Power to take sample and procedure to be followed in connection therewith.- (1) The

Central Government or any officer empowered by it in this behalf, shall have power to take, for the

purpose of analysis, samples of air, water, soil or other substance from any factory, premises or

other place in such manner as may be prescribed.

(2) The result of any analysis of a sample taken under sub-section (1) shall not be admissible in

evidence in any legal proceedings unless the provisions of sub-sections (3) and (4) are complied with.

(3) Subject to the provisions of sub-section (4), the person taking the sample under sub-section (1)

shall -

(a) serve on the occupier or his agent or person in charge of the place, a notice, then and there, in

such form as may be prescribed, of his intention to have it so analysed;

(b) in the presence of the occupier or his agent or person, collect a sample for analysis;

(c) cause the sample to be placed in a container or containers which shall be marked and sealed and

shall also be signed both by the person taking the sample and the occupier or his agent or person;

(d) send without delay, the container or the containers to the laboratory established or recognised

by the Central Government under Section 12.

(4) When a sample is taken for analysis under sub-section (1) and the person taking the sample serve

on the occupier or his agent or person, a notice under clause (a) of sub-section (3), then-

(a) in a case where the occupier, his agent or person wilfully absents himself, the person taking the

sample shall collect the sample for analysis to be placed in a container which shall be marked and

sealed and shall also be signed by the person taking the sample, and

(b) in a case where the occupier or his agent or person present at the time of taking the sample

refuses to sign the marked and sealed container or containers of the sample as required under

clause (c) of sub-section (3), the marked and sealed container or containers shall be signed by the

person taking the samples and the container or containers shall be sent without delay by the person

taking the sample for analysis to the laboratory established or recognised under Section 12 and such

person shall inform the Government Analyst appointed or recognised under Section 13 in writing,

about the wilful absence of the occupier or his agent or person, as the case may be, his refusal to

sign the container or containers.

Section 12. Environment Laboratories. - (1) The Central Government may, by notification in the

Official Gazzette, -

(a) establish one or more environmental laboratories;

(b) recognise one or more laboratories or institutes as environmental laboratories to carry out the

functions entrusted to an environmental laboratory under this Act.

(2) The Central Government may, by notification in the Official Gazzette, make rules specifying -

(a) the functions of the environmental laboratory;

(b) the procedure for the submission to the said laboratory of samples of air, water, soil or other

substance for analysis or tests, the form of the laboratory report thereon and the fees payable for

such report:

Section 13. Government Analysts.- The Central Government, may, by notification in the official

gazzette, appoint or recognise such persons as it thinks fit and having the prescribed qualifications to

be Government Analysts for the purpose of analysis of samples of air, water, soil or other substance

sent for analysis to any environmental laboratory established or recognised under sub-section (1) of

Section 12.

Section 14. Reports of Government Analysts.- Any document purporting to be a report signed by a

Government Analyst may be used as evidence of the facts stated therein in any proceeding under

this Act.

Section 15. Penalty for contravention of the provisions of the Act and the rules, orders and

directions.- (1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the

rules made or orders or directions issued thereunder, shall, in respect of each such failure or

contravention, be punishable with imprisonment for a term which may extent to five years or with

fine which may extent to one lakh rupees, or with both, and in case the failure or contravention

continues, with additional fine which may extend to five thousand rupees for every day during which

such failure or contravention continues after the conviction for the first such failure or

contravention.

(2) if the failure or contravention referred to in sub-section (1) continues beyond a person of one

year after the date of conviction, the offender shall be punishable with imprisonment for a term

which may extend to seven years.

Section 16. Offences by Companies.- (1) Where any offence under this Act has been committed by a

company, every person who, at the time the offence was committed, was directly in charge of, and

was responsible to, the company for the conduct of the business of the company, as well as the

company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and

punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any

punishment provided in this Act, if he proves that the offence was committed without his knowledge

or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been

committed by a company and it is proved that the offence has been committed with the consent or

connivance of , or is attributable to any neglect on the part of; any director, manager, secretary or

other officer of the company, such director, manager, secretary or other officer shall also be deemed

to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Section 18. Protection of action taken in good faith:- No suit, prosecution or legal proceedings shall

lie against the Government or any officer or other employee of the Government or any authority

constituted under this Act or any member, officer or other employee of such authority in respect of

anything which is done or intended to be done in good faith in pursuance of this Act or the rules,

made or orders or directions issued thereunder.

Section 19. Cognizance of offences. - No Court shall take cognizance of any offence under this Act

except on a complaint made by-

(a) the Central Government or any authority or officer authorised in this behalf by that Government;

or

(b) any person who has given notice of not less than sixty days, in the manner prescribed, of the

alleged offence and of his intention to make a complaint, to the Central Government or on the

authority or officer authorised as aforesaid.

Section 22. Bar of jurisdiction - No civil Court shall have jurisdiction to entertain any suit or

proceeding in respect of anything done, action taken or order or direction issued by the Central

Government or any other authority or officer in pursuance of any power conferred by or in relation

to its or his functions under this Act.

Section 24. Effect of other laws - (1) Subject to the provisions of sub-section (2), the provisions of

this Act and the rules or orders made therein shall have effect notwithstanding anything inconsistent

therewith contained in any enactment other than this Act.

(2) Where any act or omission constitutes an offence punishable under this Act and also under any

other Act then the offender found guilty of such offence shall be liable to be punished under the

other Act and not under this Act.

14. A cursory reading of the relevant sections would make it clear that the authorities under the

Protection of Human Rights Act and the Environment (Protection) Act operates in different areas or

field.

15. Harmonious interpretation of the provisions is justifiable and acceptable. The principles of

interpretation is that no provision of an enactment should be interpreted and understood in such a

manner as to render another provision in the same or another enactment totally ineffective or

inoperative unless there is expression intention to that effect. As pointed out by the Apex Court in

PolliSetti v. Kalluri Kameshwaramma MANU/SC/0159/1991, statutes are made for public good and

must be liberally construed.

16. The language of statutory provisions of both Acts are clear and unambiguous, however for

limited purpose of determining the area of operation of the Acts, it may be proper to see the

purpose or object of the legislation, it is permissible to look into the situations which prevail at the

time when the Law was passed and which necessiated the passing of that Law. Shashikant Laxman

Kale v. Union of India

17. The objects and reasons of the Protection of Human Rights Act are as follows;

India is a party to international covenants on civil and political right and the international covenants

on economical, social and cultural rights adopted by the General Assembly of United Nations on 16-

12-1966. After wide range of discussions, the Human Rights Commission Bill 1993 was introduced in

the Lok Sabha on 14-05-1993. In view of the urgency of the matter, the Protection of Human Rights

Act, 1993 was promulgated by President of India on 28-09-1993. The salient features of the bill were

that the Commission will be a fact-finding body with powers to conduct enquiry into complaint of

violation of human rights. The Commission will be assisted by investigating agency of Central and

State Governments. The Government may also constitute one or more special investigating teams.

The State Government may set up Human Rights Court for speedy trial on offences arising out of

violation of human rights and may also specify a Public Prosecutor or appoint an Advocate as a

Special Public Prosecutor for the purpose of conducting cases in such Courts. The Commission may

take steps for effective implementation of the existing Laws and treaties on common rights. The

Commission may also undertake research in the field of human rights and measures to promote

awareness of human rights among all sections of the society.

18. The statements of objects and reasons relating to The Environment (Protection) Act, 1986 are

decline in environmental quality has been evidenced by increasing pollution, loss of vegetal cover

and biological diversity, excessive concentrations of harmful chemicals in the ambient atmosphere

and in food chains, growing risk of environmental accidents and threats to life support system.

Although there are existing laws dealing directly or indirectly with several environmental matters, it

is necessary to have a general legislation for environmental protection and also to cover major areas

of environmental hazards, multiplicity of regulatory agencies, need for an authority which can

assume the lead role of studying, planning and implementing long term requirements of

environmental safety and give protection to and coordinate a system of speedy and adequate

response to emergency situations threatening the environment. In view of the said factors, there is

an urgent need for enactment of a general resolution on environmental pollution which interalia

should enable co-ordination of activities of various regulatory agencies, creation of authority or

authorities with advocate powers for environmental protection, regulation of discharge of

environmental pollutants and handling of hazardous substances, speedy response in the event of

accidents threatening environment and deterrent punishment to those who endanger human

environment safety and health.

19. It is seen from the said objects and reasons that the Environment (Protection) Act, 1986, Water

(Prevention and Control) Act, Air (Prevention and Control) Act, Environment Protection Rules, 1986

and other Rules namely Hazardous Waste (Management and Handling), Manufacture, Storage and

Import of Hazardous Chemicals, Hazardous Micro-organism, Biological Waste (Management and

Handling), Plastic Manufacture, Sale and Usage, Noise Pollution (Regulation and Control), Ozone

depleting Substances (Regulation and Control) and The Batteries (Management and Handling) Rules

are comprehensive to deal with pollution and also give protection from pollution.

20. Section 2(a) of the Environment (Protection) Act defines 'environment'. Section 2(b) defines

'environmental Pollutant'.

Section 10 of the environment (Protection) Act enables the Officers empowered by the Central

Government to enter and inspect any place for the purpose of performing any functions entrusted

under the legislation. It also empowers to punish any person wilfully delays or obstructs any person

empowered by the Central Government.

Section 11 of the environment (Protection) Act deals with power to lift samples and the procedure

connected therewith. Section 11 of Environment (Protection) Act is similar to Section 21 of Water

(Prevention and Control) Act and Section 26 of Air (Prevention and Control) Act.

Section 12 of the environment (Protection) Act speaks about establishment of environmental

laboratories.

Section 17 of the environment (Protection) Act fixes criminal liability on the heads of departments of

the Government where an offence is committed and the Head of the Departments is unable to

prove that the offence was committed without his knowledge or that he exercised due diligence to

prevent commission of such offence. Section 17 is similar to Section 48 of Water (Prevention and

Control) Act and Section 41 of Air (Prevention and Control) Act.

Section 18 of the Environmental (Protection) Act, Section 59 of Water (Prevention and Control) Act

and Section 42 of Air (Prevention and Control) Act are almost similar which protect the officers of

the employees of the Government from prosecution or legal proceedings for the cause done or

intended to be done in good faith in pursuance of this Act or the rules made or orders or directions

issued thereunder.

Section 19 of the Environment (Protection) Act prohibits any Court to take cognisance of any

offences under the Act, except on a complaint made by the Central Government or any authority or

officer authorised in this behalf by that Government or any person, who has given notice of not less

than sixty days of his intention to make a complaint to the Central Government, if within those

period the Government or Officer or authority has itself made the complaint and has not

communicated to such person which has refused to make such a complaint. Section 19 is similar to

Section 49 of Water (Prevention and Control) Act and Section 43 of Air (Prevention and Control) Act.

Section 22 of the Environment (Protection) Act is similar to Section 58 of Water (Prevention and

Control) Act and Section 46 of Air (Prevention and Control) Act, which bars jurisdiction of civil court

to entertain any suit or proceedings in respect of any action done, action taken or order or direction

issued by the Central Government or any other authority or officer in pursuance of any powers

conferred by or in relation to its function under the legislation. Section 24 (1) of the Environment

(Protection) Act contemplates that subject to the provisions of sub-section (2) of Section 24 the

provisions of this Act and the Rules or orders made therein shall have effect notwithstanding

anything inconsistent therein contained in any enactment other than this Act. The expression

'prevents' reliance on any other Law to the contrary.

21. It is seen from the above analysis that the Environment (Protection) Act, 1986 is a Special Act for

environmental protection by way of studying, planning and implementing long term requirements

on environmental issues and to give protection to co-ordinate a system for speedy and adequate

response to emergency situations threatening the environment. It also enables the authorities to co-

ordinate the activities of the various regulatory agencies.

22. Notices were issued by the first respondent herein invoking Section 16 of the Protection of

Human Rights Act arraying the petitioner herein as respondent. The alleged violation of human

rights in the said two cases are third parties caused air pollution. Section 42 of the Air (Prevention

and Control) Act, which is similar to Section 18 of the Environment (Protection) Act protects the

officers and employees of any authority constituted under the Act or any member, officer or other

employees of such authority in respect of anything done or intended to be done in good faith in

pursuance of this Act or the Rules made or orders or directions issued thereunder. Section 42 of the

Air (Prevention and Control) Act protects the employees of the Board or any officer or any member

or other employee of the Board, in respect of anything which done or intended to be done in good

faith in pursuance of this Act or Rules made thereunder.

23. Joint reading of both the environment (Protection) Act and Air (Prevention and Control) Act

make it clear that no suit or prosecution or legal proceedings shall lie against any authority

constituted under the Act or any member, officer or other employee of such authority in respect of

anything which is done or intended to be done in good faith in pursuance of this Act or the Rules,

made or orders or directions issued thereunder.

24. It is not in dispute that the subject matter, for which the impugned notice has been issued by the

Commission is the subject matter of the writ petition Nos. 15501 to 15503 of 1996, 5789 of 1997,

7822, 13508 and 16861 of 1998 and 3964 of 2000 pending before this Court and this Court also

issued directions from time to time to the petitioner to permit the said two Industries to function

with necessary precautions and safety measures as per norms.

25. Section 36, read with Regulation (g) of Regulations 9 of State Human Rights (TN) (Procedure)

Regulations, 1997 prohibits the Commission from enquiring into any matter, which is pending before

any Court or Tribunal. In view of the said facts, the impugned notices issued by the Commission

citing the petitioner herein as a respondent is quashed.

26. The writ petitions are ordered accordingly. No costs. Consequently, connected WMPs are closed.

IN THE HIGH COURT OF JHARKHAND

W.P. (PIL) No. 2332 of 2001

Appellants: Manbodh Mahto Vs. Respondent: Union of India (UOI) and Ors.:Decided On: 04.11.2004

Hon'ble Judges:

S.J. Mukhopadhaya, A.C.J. and N.N. Tiwari, J.

Counsels:

For Appellant/Petitioner/Plaintiff: R.R. Nath, Adv.

For Respondents/Defendant: Mokhtar Khan, Adv. and M.S. Anwar, Sr. Adv., for Respondent No. 7

For State: R.N. Sahay, Sr. S.C. II

For Control Board: Dilip Jerath, Adv.

For Khanna Commission: A.K. Kashyap, Adv.


Catch Words:

Pollution Control, Public Interest

Acts/Rules/Orders:


ORDER

1. This public interest litigation has been preferred by the petitioner calling upon the respondents to

restrain respondent No. 7 from operating the Hot-Mix Plant at plot Nos. 39 and 67 of village-Tilta,

P.S Ratu, District-Ranchi on the ground that the aforesaid plant is a hazardous industry having been

so declared by the Expert Committee of the Central Pollution Control Board. This case was heard

from time to time and certain orders were passed. Some of the respondents earlier informed that

they will adopt remedial measures to ensure that Hot-Mix Plant does not cause any pollution.

2. Mr. Jerath, counsel for the Jharkhand State Pollution Control Board submitted that after

verification of Hot-Mix Plant in question, NOC has been given to the contractors on the basis of the

present specification, as determined by the Jharkhand State Pollution Control Board. The Board has

no objection, if they are now being run by the respondents of this case at the places where they are

situated.

3. Though the counsel for the petitioner tried to raise different objections, this Court is not inclined

to decide those issues, as the Courts are not the Expert Committee to determine whether it is

polluted area or not. It is for the Pollution Control Board to decide the same. Now, on the basis of

the present standard, specification and norms prescribed vide Notification No. 28 dated 27th

August, 2003, the Jharkhand State Pollution Control Board having verified the Hot-Mix Plants in

question and having granted NOC to them, this Court allows the contractors to proceed with their

work so that they may complete the construction of the road on an early date, failing which it will be

open to the State of Jharkhand to cancel their agreement.

4. This application stands disposed of, with the aforesaid observations.

5. Let a copy of this order be handed over to the counsel for the parties.


W.P. Nos. 21585, 21588, 21589 and 21613 of 2000 and W.P.M.P. Nos. 31355, 31358, 31359 and

31396 of 2000

Appellants: Sudarsanam Spinning Mills, Rajapalaiyam Spintext, (EOU Division of Rajapalayam Mills

Ltd.), Sri Vishnu Shankar Mill Ltd. and Sri Ramco Spinners, (A Division of Ramco Industries Ltd.)

Vs.

Respondent: Tamil Nadu Pollution Control Board, rep. by its Member Secretary and The Joint Chief

Environmental Engineer, Tamil Nadu Pollution Control Board,Decided On: 16.11.2004

Hon'ble Judges:

N.V. Balasubramanian and R. Banumathi, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: M. Elumalai, Adv.

For Respondents/Defendant: Rita Chandrasekar, Adv.


Subject: Commercial

Catch Words:

Air Pollution, Alteration, Atmospheric Pollution, Certiorari, Condition, Consent, Consideration,

Emission, Industrial Establishment, Industrial Plant, Interpretation, Noise Pollution, Pollution Control

Acts/Rules/Orders:


ORDER

R. Banumathi, J.

1. All the Writ Petitions have been filed by the Petitioners for issuance of Writ of Certiorari to call for

the records of the Second Respondent and to quash the Impugned Notice No./K/R/ebgh/-jkhfth-

kJiu-nfh12-M-bg-tpUJ-2000 dated 15.11.2000 and other notices in the respective Writ Petitions.

2. The Petitioners Mills - Export oriented Units situated at Rajapalayam, Virudhungar District have

employed number of workmen. They are engaged in the manufacture of sale of Cotton Yarn and

they do not have either Weaving Department or Processing Sections like Weaving, Bleaching, Dyeing

and Printing. According to the Petitioners, their Mills are Spinning Units with no Weaving

Department and Processing Sections. To tide over the power shortage, the Petitioners have installed

Diesel Generator sets. The Petitioners / Mills have obtained Consent Orders Nos. 7226, 3353, 7066

and 3354 Dated 31.12.1992, 05.03.1991, 04.11.1992 and 05.03.1991 respectively from the First

Respondent / Tamil Nadu Pollution Control Board for installation of Diesel Generator Sets. Due to

tremendous scientific and technological advancement in the manufacture of captive generator sets,

for more efficiency, the Mills used Furnace Oil Generators. Generation of power through Furnace Oil

Generator is found to be purer and more sufficient. Installation of Furnace Oil Generator is only

replacement of Diesel Generator sets already installed, which have become old. The replacement of

the existing plant and machineries with new ones does not require a fresh Consent Order from the

First Respondent / Pollution Control Board, especially when the replacement more efficiently

eliminates Air and Atmospheric pollution and Noise pollution.

3. While so, without taking into account that the new Generator sets are only replacement of the

existing Generator sets, the First Respondent had issued the impugned notices. The Impugned

Notices are assailed on the ground that they suffer from serious error of law as well as fact that the

replacement of the existing machineries requires fresh consent from the First Respondent.

4. Contention of the Petitioners Mills is that no fresh Consent Order is necessary for installation of

Furnace Oil Generators, which only replaces Diesel Generator Sets. While so, the First Respondent /

Pollution Control Board has issued the Impugned Notices dated 15.11.2000 to the respective Writ

Petitioners stating that there is violation of Sec. 21 of The Air (Prevention & Control of Pollution) Act,

1981 (hereinafter referred to as "the Air (P&CP) Act"), calling upon the Petitioners to show cause as

to why Prosecution should not be launched against them. These Writ Petitions have been filed by

the Writ Petitioners, challenging the Impugned Notices on the ground that they are highly arbitrary

and unreasonable.

5. Assailing the Impugned Notices in the respective Writ Petitions, learned counsel for the

Petitioners has contended that the Second Respondent has failed to take into account that the

installation of New Generator Sets - Furnace Oil Generators are only replacement of existing one of

old Diesel Generator Sets. The contention of the counsel is that when the Petitioners have earlier

obtained the Consent Orders from the First Respondent / Pollution Control Board for installation of

Diesel Generator Sets, replacement of the same by fuel efficacious methods eliminating the

Atmospheric pollution needs no fresh consent. Urging that no fresh Consent Order is essential,

learned counsel for the Petitioners assailed the Impugned Notices that Notice is more in the nature

threatening to launch Prosecution than issuance of Show Cause notice and prayed to quash the

same.

6. Onbehalf of the First Respondent / Pollution Control Board, it is submitted that though the

Petitioners / Mills have earlier obtained Consent Orders, even if there is any change or replacement

of the Unit by modern unit, fresh Consent Order is very much essential. Taking us through Rule 5(iii)

of The Environment (Protection)Rules, 1986 and other provisions of the Air (P&CP) Act, learned

counsel for the First Respondent has submitted that even for replacement of the Diesel Generator

sets, it is very much necessary to obtain the Consent.

7. We have carefully considered the submissions of both sides. For the purpose of determining the

issue raised in these Writ Petitions, it is appropriate to refer to the Provisions of the Air (P&CP) Act.

Sec. 2(a) of the Air (P&CP) Act defines "air pollutant" as under:-

"...."air pollutant" means any solid, liquid or gaseous substance (including noise) present in the

atmosphere in such concentration as may be or tend to be injurious to human beings or other living

creatures or plants or property or environment..."

Sec.2(c) of the Air (P&CP) Act defines "approved appliances" to mean any equipment of gadget used

for the bringing of any combustible material or for generating or consuming any fume, gas of

particulate matter and approved by the State Board for the purpose of this Act. The words "control

equipment" has been defined in Sec. 2(i) of the Air (P&CP) Act to mean any apparatus, device,

equipment or system to control the quality and manner of emission of any air pollutant and includes

any device used for securing the efficient operation of any industrial plant. Sec. 2(k) of the Air (P&CP)

Act defines "industrial plant" to mean that any plant used for any industrial or trade purposes and

emitting any air pollutant into the atmosphere.

8. To the show cause notices, the Petitioners sent reply dated 04.12.2000. In their reply, the

Petitioners have stated that as advised by the Government, every textile mill and industrial

establishment has installed diesel power generator sets several decades ago and those generator

sets are periodically replaced as and when necessary. They have further stated that in recent times a

number of textile mills have replaced the existing Diesel generator sets with generator sets using

furnace oil. Thus, on behalf of the Petitioners it is mainly urged that the replacement of the existing

Diesel Generator sets with the Generator sets using furnace oil is used for efficient operation of any

Industrial Unit. Furnace oil Generator is any apparatus, device ..... and includes any device used for

securing the efficient operation of any Industrial Plant. We are of the view that the Generators using

furnace oil falls within the meaning of "control equipment" as defined in Sec. 2(i) of the Air

(P&CP)Act.

9. Sec. 21 of the Air (P&CP) Act deals with Restrictions on use of certain Industrial Plants and

mandates obtaining previous consent of the State Board. Sec. 21(1) of the Air (P&CP) Act reads as

under:-

"...Subject to the provisions of this Section, no person shall, without the previous consent of the

State Board, establish or operate any industrial plant in an air pollution Control Area...."

The point for consideration is whether such consent of the State Board is essential for replacement

of the Unit / Generator set.

10. As per Sec. 21(5)(ii) of the Air (P&CP) Act, the existing control equipment, if any, shall be altered

or replaced in accordance with the directions of the State Board. By any normal interpretation of the

language "shall be altered or replaced in accordance with the directions of the State Board", we find

that the Consent of the State Board for replacement is essential.

11. Consent Orders issued by the First Respondent contains the General Conditions. Clause 5 of the

General Conditions deals with alteration or replacement of Control equipment or Chimney. Clause 5

reads as follows:-

"...No control equipment or chimney shall be altered or replaced or as the case may be erected or

re-erected except with the previous approval of the Board..."

The Petitioners / Mills operating in the Pollution free area are bound by Sec. 21(5)(ii) of the Air

(P&CP) Act and clause 5 of the General Conditions imposed in the Consent Orders. For alteration and

replacement of the existing control equipment, obtaining previous consent of the First Respondent /

Board is very much essential. While so, it is not open to the Petitioners to contend that for

replacement of the existing equipment, no application need be made for obtaining fresh consent.

12. Learned counsel for the Petitioners has submitted that the Furnace Oil Generator set installed by

the Petitioners are fully efficient and that there is no air pollution and no fresh consent is necessary

regarding the Air (P&CP) Act and The Environment (Protection) Act, 1986. This contention of the

Petitioners does not merit acceptance. SCHEDULE - I of The Environment (Protection) Act, 1986

deals with Category of Thermal Power Plants Requiring Environmental Clearance from the State

Government. The Co-Generation Captive Plants is one such category which require environmental

clearance from the State Government. As per SCHEDULE - I, Co-Generation Captive Plants means:

(i) Co-Generation Plants

All Co-generation Plants irrespective of the installed capacities.

(ii) (Omitted)

(Omitted)

13. Though the Generator using furnace oil is claimed to be more fuel efficient, the fact remains it is

a co-generation plant, which requires environmental clearance from the State Government / Board.

The contention of the Petitioners that the permission earlier obtained in the Consent Orders Nos.

7226, 3353, 7066 and 3354 Dated 31.12.1992, 05.03.1991, 04.11.1992 and 05.03.1991 respectively

from the First Respondent / Tamil Nadu Pollution Control Board for installation of Diesel Generator

Sets would be sufficient for any kind of replacement or alteration of the Generator sets or

equipment has no force. The Petitioners are not right in contending that the Petitioners having

obtained the Consent Orders, the same would cover any kind of replacement of the equipment,

Furnace Oil Generator.

14. Sec. 24 of the Air (P&CP) Act deals with Power of Officers of the State Board to enter, inspect any

place, to perform the functions of the State Board. The said power includes examining, testing,

seizing any control equipment, plants and documents. Any person delaying or obstructing the

officers of the Board in discharge of his duties will be guilty of an offence. Since the persons

empowered by the State Board have the right of inspection, on behalf of the Petitioners it is

contended that the First Respondent / Pollution Control Board could enter and examine and could

very well test the Furnace Oil Generator rather than issuing the show cause notice alleging violation

of Sec. 21 of the Air (P&CP) Act and calling upon the Petitioners Mills to show cause as to why the

Prosecution should not be launched against them under Sec. 37 of the Air (P&CP) Act. This

contention cannot be countenanced. Though the persons empowered by the State Board have the

right of entering and inspection, the Petitioners cannot ask the First Respondent to make their own

entry and inspect the newly installed Furnace Oil Generator. It is not the function of the First

Respondent to investigate and find out whether the machineries already installed have become old

and whether the replaced Generator sets using furnace oil is more fully efficient as claimed by the

Petitioners. It is for the Petitioner Mills to satisfy the Board about the efficient functioning replaced

generator sets using furnace oil. This could be done by making out necessary application and in

accordance with the directions of the State Board in compliance with Sec. 21(5)(ii) of the Air (P&CP)

Act. The First Respondent is well within the limits to issue the show cause notice for the alleged

violation of Sec. 21 of the Air (P&CP) Act.

15. The show cause notice is assailed mainly on the ground that the Generator sets using furnace oil

replaced are fully efficient and installed elsewhere in every Textile Mill and Industrial Establishment

are working without any Pollution and hence, installation of Furnace Oil Generator would not cause

Air Pollution. Whether the operation of Furnace Oil Generator would be injurious to human beings

or other living creatures or plants or property or environment remains to be seen. It is for the Tamil

Nadu Pollution Control Board to determine by employing appropriate checking measures to

determine whether the Furnace Oil Generators is emitting foul smell or not. Only the Pollution

Control Board could check whether the Generator sets using Furnace Oil are emitting any "air

pollutant" within the meaning of Sec. 2(a) of the Air (P&CP) Act. The mere statement of the

Petitioners that the Generator Sets using Furnace Oil installed in other Textile mill are working

satisfactorily without causing air pollution is not sufficient.

16. The Petitioners contend that the issuance of the show cause notice would hamper the working

of the Textile Mill and that the negative attitude on the part of the Board would hamper the

Industrial growth. Saving the environment cannot be sacrificed at the cost of promoting the

Industrial Growth. Since the First Respondent is well within the rights in issuing the show cause

notices, we are not inclined to quash the Impugned Notices. However, since the Show Cause Notices

are want of details of nature of violation, we are inclined to give the following directions.

17. As per Sec. 21(5)(ii) of the Air (P&CP) Act, existing control equipment shall be altered or replaced

in accordance with the directions of the State Board. For replacement of the Diesel Generator sets

with Furnace Oil Generator, the Petitioners ought to make out applications to the First Respondent

stating the nature of the Furnace Oil Generator and the Fuel efficiency etc., which may be

considered by the First Respondent in accordance with law.

18. With the above directions, all the Writ Petitions are disposed of. No costs.

Consequently, the connected W.P.M.P. Nos. 31355, 31358, 31359 and 31396 of 2000 are dismissed.


WP No. 17803 of 2004 and WPMP No. 23349 of 2004

Appellants: Vedire Venkata Reddy and Ors. Vs. Respondent: Union of India (UOI) and Ors.: Decided

On: 17.11.2004

Hon'ble Judges:

Devinder Gupta, C.J. and C.V. Ramulu, J.

Counsels:

For Respondents/Defendant: D. Prakash Reddy, Adv. for Harender Prasad, Adv., A. Rajashekar Reddy

(SC for CG), Adv. General, S.V. Bhatt, P. Madhusudhan Rao and S. Ramachandra Rao, Advs. for K.R.

Prabhakar, Adv., Ramesh Raghavan, J.N. Bhushan and M.P. Chandramouli, Advs. and Party-in-person

for the Respondent No. 15

For Appealing Parties: Ramesh Ranganathan, Adv. for K.S. Raghava Kumar and K. Ramakrishna

Reddy, Advs. for Kanakamedala Ravinder Kumar and K. Ram Murthy, Advs. for O. Manohar Reddy,

Adv.


Catch Words:

Agricultural Land, Environmental Group, Environmental Impact Assessment, Flood Control,

Injunction, Pollution Control, Precautionary Principle, Public Interest, Sustainable Development

Acts/Rules/Orders:

Environment (Protection) Act, 1986 - Section 3 and 3(2); Environment (Protection) Rules, 1986 - Rule

5 and 5(3); Constitution of India - Articles 32, 131, 226, 262 and 262(2); Inter-State Water Disputes

Act, 1956 - Sections 2 and 11; Civil Procedure Code (CPC), 1908 - Section 141 - Order 1, Rule 8

Cases Referred:

Professor K. Purushotham Reddy and Anr. v. State of Andhra Pradesh and Ors., Writ Petition No.

15425 of 2001; Chaitanya Kumar v. State of Karnataka, AIR 1986 SC 825; J. Mohapatra and Company

v. State of Orissa, AIR 1984 SC 1572; State of H.P. v. Umed Ram Sharma, AIR 1986 SC 847;

Ramchander Sunda v. Union of India, (1999) 9 SCC 105; Narmada Bachao Andolan v. Union of India,

(2000) 10 SCC 664; State of Karnataka v. State of A.P. and Ors., (2000) 9 SCC 572; C.N.V.V.N.U.P.

Sangam v. Union of India, AIR 1990 SC 1316, (1990) 3 SCC 440; State of Tamilnadu v. State of

Karnataka, (1991) Suppl. 1 SCC 240; In Re: Cauvery Water Disputes Tribunal, (1993) Suppl. 1 SCC 96;

Babubhai Jashbhai Patel v. Union of India, AIR 1983 Guj. 1; T.N. Godavarman Thirumalpad v. Union

of India, (2002) 10 SCC 606; J.R. Rathupathy v. State of A.P., (1988) 4 SCC 364; Goa Foundation v.

Konkan Railway Corporation, AIR 1992 Bom. 471

Disposition:

Petition allowed

JUDGMENT

Devinder Gupta, C.J.

1. Petitioners, including a retired Engineer-in-Chief, A.P. TRANSCO, belong to various sections of

society. Petitioners 3 to 6 and others are stated to have formed an association called "Pulichintala

Project Porata Sambhavana Committee". They claim that this association includes the affected

farmers of Guntur and Nalgonda Districts whose agricultural lands are situate near the proposed site

of Pulichintala Project and to safeguard the interests of the people living in twelve villages situated

in Nalgonda and Guntur Districts, whose lands are likely to be submerged if the project is allowed to

commence at the site, this writ petition has been filed as 'Public Interest Litigation' on 30.9.2004.

The writ petition challenges the action of the respondents in commencing the Pulichintala Project

for the purpose of stabilizing the command area under Prakasham Barrage. Inter alia, it is alleged

that the respondents have decided to commence the Pulichintala Project without obtaining

environmental clearance, as envisaged under the Environment (Protection) Act, 1986. Without

obtaining such consent, the petitioners allege that the work of the proposed project cannot be

commenced.

2. Rule nisi was issued in the writ petition on 4.10.2004. The petitioners also filed miscellaneous

application, viz., W.P.M.P. No. 23349 of 2004, praying for issuance of directions that the respondents

be restrained from finalizing the tender process and not to commence the construction work of the

project during the pendency of the writ petition. Time was sought to file counter-affidavit and reply

to the miscellaneous application. In the meanwhile, apprehending likelihood of passing some interim

orders a number of miscellaneous applications have been filed by some individuals and associations

for being impleaded as party respondents to the writ petition and to permit them to submit their

views before the Court. The said applications were also taken up for consideration. In view of the

averments made in the implead applications, they are ordered.

3. The main relief sought by the petitioners in the writ petition is to declare the action of the

respondents in taking steps to commence the construction work of the Pulichintala Project without

obtaining environmental clearance from the Central Government as arbitrary, illegal and violative of

principles of natural justice and contrary to the notification dated 27.1.1994 issued by the first

respondent. The second relief sought in the petition is to direct the respondents to shift and relocate

the Pulichintala Project to an alternate location immediately after the confluence of Muneru

Tributary.

4. When we commenced hearing, learned Counsel for the parties were asked to address us only on

the question of grant of an interim relief, if any, as prayed for by the petitioners on the ground that

environmental clearance has not been obtained. On the other aspects raised in the petition, we

pointed out that the said questions would arise for consideration only after this question is

answered. Learned Counsel for the respondents pointed out that since elaborate arguments on the

points of environmental clearance have been addressed, the writ petition itself can be disposed of.

5. Submissions were made on the question that whether or not it is obligatory on the part of the

State Government to obtain environment clearance prior to commencement of the project work in

any manner whatsoever or whether the work undertaken is such which would not require the said

clearance. Arguments were also addressed on behalf of the State Government that though it was

bound to obtain necessary environmental clearance before the commencement of the work but by

entrusting the construction work to M/s. Srinivasa Construction Company after evaluation of the

tenders and acceptance thereof, the only work undertaken at the site is only to assess soil strata

which is a part of foundation investigation along with dam access so as to assess the soil parameters

for finalization of detailed designs for the foundation of the dam. It was urged that the construction

of Pulichintala Project will involve investigation work for assessing the soil parameters for the

purpose of preparation and finalization of designs, drawings, etc., which form part of foundation

investigation as per Central Water Commission Guidelines, 1983. The contractor has to undertake

the said exercise under the present E.P.C., turn key systems, who had in fact undertaken work only

for the purpose of foundation investigation to enable him to finalize the design which would not

come within the purview of the actual commencement of construction work of the project. The

investigation and preparation of designs itself will take about six months time. In this backdrop,

learned Counsel for the respondents and the other impleaded respondents pointed out that there

should not be any restraint on the respondents in going ahead with the work and there should not

be any injunction of any kind particularly considering that it was a major multipurpose project for

which clearance had already been issued by the Central Water Commission. Moreover considering

the larger public interests and the persons likely to be benefited by the project, any restraint, if

imposed, is likely to adversely affect the beneficiaries and will not be in public interest.

6. Some of the impleaded respondents also questioned the very locus standi of the petitioners to file

such a petition as public interest litigation saying that the petition is not at all in public interest but is

contrary to the larger interests of majority of the citizens of the State. Another objection is about the

jurisdiction of the Court to entertain such a petition on the ground that water disputes between the

Governments of Karnataka, Maharashtra and Andhra Pradesh, including the Pulichintala Project,

have already been referred to Krishna Water Dispute Tribunal, which Tribunal alone can agitate

these water disputes Under Section 5 of the Inter-State Water Disputes Act, 1956 and in view

prohibition contained in Article 262(2) of the Constitution read with Section 11 of the Inter-State

Water Disputes Act, 1956, this Court shall not exercise jurisdiction in respect of water dispute.

7. The petitioners alleged that as per the proposal of the State Government, Pulichintala Project is

proposed to be located before the confluence of Muneru tributary resulting inflow of water from

Muneru into Krishna River and thereafter into Bay of Bengal. Since the capacity of Krishna Barrage is

only 4 T.M.C., in recent times a number of protests were received from general public with regard to

location of Pulichintala Project and a report was also submitted by Engineer, T. Hanumantha Rao,

the then Chairman Technical Committee, Water Conservation Mission, Government of Andhra

Pradesh called "Technical Alternatives to Pulichintala Project". The report had pointed out that the

site selected was not a suitable or beneficial site. Apart from other disadvantages, the proposed

project has not received any environmental clearance from the Central Government i.e., the

Ministry of Environment and Forests, which is mandatory. The petitioners highlighted the fact that

under the Notification issued on 27.1.1994, there is a procedure laid down in obtaining

environmental clearance. The State Government is the Project Authority and has to apply for

clearance. It has also to append along with its application, the proceedings of public hearing, which

is also mandatory under the relevant provisions. On an earlier occasion when the fourth respondent

had commenced the construction work of the project without conducting any public hearing and

without obtaining consent, Writ Petition No. 15425 of 2001 was filed. The State Government had

pointed out that it had already taken steps to obtain environmental clearance. The writ petition filed

at that stage questioning the implementation of the project at the given site was held to be

premature and was disposed of by a Division Bench of this Court on 12.9.2001 observing that

obtaining permission from the Central Government was mandatory. The petitioners, thus, alleged

that the respondents are now proceeding ahead in commencement of the work without obtaining

environmental clearance.

8. The stand of the State Government on the environmental clearance is that the Government after

considering the importance of the project had submitted a proposal to the Central Water

Commission on 16.1.1996 for its approval. The Central Water Commission in its 64th meeting in

Advisory Committee of Irrigation Flood Control and Multipurpose Project held on 3.4.1996 decided

to recommend the Pulichintala Project as a techno economic viable project subject to obtaining

environmental clearance. After the recommendation of the Central Water Commission, detailed

investigation and survey has been undertaken by the fourth respondent. For the purpose of

obtaining environmental clearance, as prescribed under the Environmental Impact Assessment

Notification, 1994, steps for conducting public hearing have been taken by the State Government, as

suggested by the Pollution Control Board. Public hearing was sought to be conducted on 23.3.1998

but the same could not be completed due to strong resistance from various groups, political parties

and voluntary organizations. When the matter stood thus, the inflow of water into Krishna River has

drastically been reduced due to construction of various dams at the upstream of the Krishna River in

Karnataka State and due to prevailing drought conditions in the State. There is dire necessity to

proceed ahead with the Pulichintala Project for regulating the water release to Krishna Delta as well

as to meet the increased demand of power. In this view of the matter, the Government has decided

to immediately take up the construction of the Pulichintala Project and accordingly tenders were

invited on 23.2.2000 for construction of non overflow dam and spill way across the river Krishna on

E.P.C., turn key system. After evaluation, tenders were accepted and the work was entrusted to the

contractor. As regards public hearing, it is stated that it is now scheduled to be held on 10.11.2004 at

10 a.m., at Mandal Revenue Office, Mallacheruvu, Nalgonda District and all necessary steps as

required under Schedule IV of the Environmental Impact Assessment Notification, 1994 have been

taken. It is also stated that the entire effort of the State is to save time and the action of the State

Government in award of contract cannot be found fault with.

9. It is not disputed by the State Government that obtaining environmental clearance is mandatory

before commencement of construction work. In the affidavit of the Project Administrator and the

Superintending Engineer, it is also stated that assuming that the project is allowed to proceed, it is

only when the construction of the dam up to bank level is complete, the lands will be submerged

and it is expected to take at least one and half year and till then no land will be subjected to any

submersion. As such there cannot be any interjection with the present work being undertaken.

Further, it is stated that in view of the importance of the project and for economic development of

the State all efforts are being made by the State Government for early completion of the project for

which no exception can be taken by any person. As noticed above, it has not been disputed by

Respondents 1 to 4 that some work is going on at the site, which according to the Project

Administrator is only an investigation work for assessing soil parameters for the purpose of finalizing

the designs and drawings and the said construction will not come under the purview of the

environmental aspect and does not require any prior permission of the Ministry of Environment and

Forests, Government of India.

10. We need not take note of the State Government's stand on the merits at this stage since on

merits of the project, the petition is still premature. The only question, at this stage, is that whether

the State Government can proceed ahead with implementation of project without environmental

clearance.

11. On behalf of the Central Government though no counter-affidavit has been filed so far, but

learned Standing Counsel for the Central Government has handed over to us a communication

received by him from the Additional Director, Ministry of Environment and Forests, Government of

India dated 26.10.2004, which states that the Irrigation and Command Area Development

Department, Government of Andhra Pradesh has on 20.10.2004 submitted its proposal in respect of

Pulichintala Major Irrigation Project in Guntur District for site clearance. The letter further states

that the proposal is under examination and after the site clearance is granted, the project authorities

are required to submit comprehensive environmental impact assessment report incorporating the

suggestions given in the public hearing for environmental clearance. Learned Advocate General

pointed out that it is only a communication from the Ministry of Environment and Forests to its

Counsel and is not a counter-affidavit, therefore, no cognizance of the same can be taken since the

State Government has no occasion yet to verify the facts as to whether site clearance had or had not

been granted. In any case we are taking the stand of the 1st respondent on record since specifically

the Additional Director requested the Standing Counsel for Central Government to bring this fact to

the notice of the Court.

12. The locus standi of the petitioners has been challenged by making reference to the cause title of

the order passed in earlier Writ Petition No. 15425 of 2001 decided on 12.9.2001 (Professor K.

Purushotham Reddy and Anr. v. State of Andhra Pradesh and Ors.). The said writ petition was filed

when some work at the project site was commenced. The writ petition was dismissed as premature

since environmental clearance, which is required to be obtained had not been obtained and the

State Government had pointed out that it was taking steps to obtain environmental clearance. Mr. S.

Ramachandra Rao referred to Annexure-K appended to the present petition. It is a copy of

representation sent by Telangana Congress Party addressed to the Governor of the State on the

Pulichintala Project. It was pointed out that in the earlier writ petition Professor K. Purushotham

Reddy, the working President was the petitioner whereas its Treasurer, P. Murali Manohar Rao, is

one of the petitioners in the present writ petition and therefore it is a mala fide petition. Considering

the nature of allegations made in this petition, the mere fact that one of the petitioners is an office

bearer of a particular party, whose office bearer was petitioner in the earlier petition will not be a

ground to hold that the petition is mala fide or that the petitioners have no locus standi to file the

petition. The petitioners are public spirited persons and form part of a homogenous group likely to

be adversely affected in the event of the project being set up at the site in question. They have

highlighted and tried to project the grievance of the landowners that the State Government is

proceeding with the work contrary to the procedure laid down in law. Even as per the affidavit of the

State Government, there had been strong resistance from various groups, political parties and

voluntary organizations due to which the requisite public hearing, which earlier was sought to be

conducted on 28.3.1998, could not take place. We do not find any force in such like submission that

it is not a petition filed in public interest and turn down this objection. Considering the nature of the

points raised and the importance of the project, it cannot be said that it is a motivated mala fide

petition not filed in public interest.

13. Public Interest Litigation is that where the public in general are interested in vindication of some

rights or enforcement of some public duty. Such litigation has hitherto been entertained by the

Supreme Court under Article 32 and by the High Courts under Article 226 of the Constitution not

only from associations or organizations or individuals interested in a common cause. Where public

interest is undermined by arbitrary or perverse executive action, it is rather duty of the High Court to

issue appropriate writ. We may make reference to Chaitanya Kumar v. State of Karnataka, AIR 1986

SC 825. In view of a spate of petitions filed as Public Interest Litigation, lately it has been held that

before entertaining a letter or communication as PIL, the Courts should take adequate care and

caution that the process of the Court is not abused or misused. In doing so the Court should be

prima facie satisfied that the information laid before the Court is of such a nature, which call for

judicial scrutiny. Where the Court is so prima facie satisfied it may proceed to investigate into the

allegations with a view to meeting out justice. In exercising the power of entertaining PIL, the Court

should not forget the object with which procedural technicalities in such like petitions have been

relaxed e.g., to provide easy access to justice to weaker section of the community and to combat

exploitation and injustice and to secure to the under-privileged segments of society their social and

economical entitlement. Such procedural technicalities are also relaxed in petitions filed to redress

public injury, enforce public duty, protect social rights, vindicate public interest and rule of law,

effect access to justice to economical weaker class and meaningful realisation of fundamental rights.

It has been held in J. Mohapatra and Company v. State of Orrisa, AIR 1984 SC 1572, that once the

Court is satisfied as to the public mischief to be remedied, it would not insist on the locus standi of

the petitioners. A balance has to be struck by the Court in a public interest litigation between two

conflicting interests i.e., (i) no body should be indulged In wild and reckless allegations besmirching

the character of others and (ii) avoidance of public mischief and to prevent publicly mischievous

executive action as held in Chaitanya Kumar case (supra). Where public mischief is predominant, the

Court may not only restrain executive action but may also give appropriate affirmative action. (See:

State of H.P. v. Umed Ram Sharma, AIR 1986 SC 847).

14. On the maintainability of the writ petition on the ground that it is filed in representative capacity

and must be dismissed since leave of the Court has not been obtained under Order I, Rule 8 of the

Code of Civil Procedure, reliance was placed on a judgment of the Supreme Court reported as

Ramchander Sunda v. Union of India, (1999) 9 SCC 105. The objection is ill-founded inasmuch the

writ petitioners have nowhere stated that the writ petition is being filed in representative capacity

or that they are seeking leave of the Court under Order I, Rule 8 of the Code of Civil Procedure. The

petition has been filed in public interest and on the parameters as noticed above and as laid down

by the Supreme Court in Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664, such a

petition filed in public interest undoubtedly would be maintainable. We may also observe that in

view of Section 141 of the Code of Civil Procedure, even provisions of Order I, Rule 8 are not

applicable to a petition filed under Article 226 of the Constitution of India. We hold that the petition

has been filed bona fide and is in public interest.

15. Now the objection was raised about jurisdiction of the Court to entertain and decide this writ

petition. As a limb of that objection reference was made to the decision of the Supreme Court in

State of Karnataka v. State of A.P. and Ors. , (2000) 9 SCC 572. Two Civil Suits (O.S. No. 1 of 1997 and

O.S. No. 2 of 1997) were decided by the Supreme Court. State of Karnataka had filed suit, O.S. No. 1

of 1997 before the Supreme Court under Article 131 of the Constitution of India, inter alia, praying

for an injunction restraining the State of Andhra Pradesh from executing several projects, including

Pulichintala Project. State of Maharashtra, Defendant No. 2 in the said suit, agreed with the State of

Karnataka regarding apportioning of water of river Krishna for constructing various projects like

Pulichintala. One of the issues (Issue No. 11) in the said suit was whether the decision of Krishna

Water Dispute Tribunal entitles the State of Andhra Pradesh to execute projects, including

Pulichintala. The Apex Court, in the context of the prayer made in the plaint and in view of the

findings, held that the question of granting relief sought for by the State of Karnataka did not arise,

which relief included an order of injunction restraining the State of Andhra Pradesh from executing

several projects, including Pulichintala. The Supreme Court, however, observed that in the event of

any riparian State approaching the Central Government, it would do well to constitute a Tribunal,

which Tribunal would go into the entire disputes. It was pointed out that now a Tribunal has since

been constituted. It was, thus, urged that the relief sought for in the O.S. No. 1 of 1997 before the

Supreme Court was similar to the relief now sought in this petition, which was turned down by the

Apex Court, therefore, this Court ought not to exercise its jurisdiction under Article 226 of the

Constitution in favour of the petitioners and would decline to grant the relief.

16. Such an objection raised on behalf of the respondents has to be simply turned down on the

ground that the present writ petition is neither a petition filed by any of the riparian States, nor by

their agents or by a person claiming rights through the riparian States. Filing of the suit by the State

of Karnataka and raising an issue by State of Maharashtra in the Apex Court cannot affect the rights

of persons, like the petitioners, who belong to State of Andhra Pradesh, in approaching the Court

where the questions raised are not such which were before the Supreme Court in O.S. No. 1 of 1997

or could be raised in the said suit. The cause of action is also not the same.

17. Another limb of the same objection is that the writ petition has raised a dispute relating to

water, therefore, in view of Article 262(2) of the Constitution of India read with Section 11 of the

Inter-State Water Disputes Act, 1956 jurisdiction of the Court is barred. Reference in that behalf was

placed on the decisions of the Supreme Court in Tamilnadu C.N.V.V.N.U.P. Sangam v. Union of India,

AIR 1990 SC 1316, (1990) 3 SCC 440, State of Tamilnadu v. State of Karnataka, (1991) Suppl. 1 SCC

240 and Re: Cauvery Water Disputes Tribunal, (1993) Suppl. 1 SCC 96. No doubt the writ petition

would not be maintainable provided a water dispute as defined in Inter-State Water Dispute Act,

1956 is raised therein. Whether such a dispute is raised in the writ petition is the question to be

answered.

18. 'Water dispute' has been defined in Section 2(c) of the Inter-State Water Dispute Act to mean

any dispute or difference between two or more State Governments in respect to the use,

distribution or control of waters of or in any inter State river or river valley. It was urged that Krishna

River Water Dispute Tribunal Award popularly known as Bachawath Award in Chapter III made it

clear that river Krishna, which flows from Maharashtra, Karnataka and then Andhra Pradesh is an

inter State river and the words "use", "distribution" or "control" in Section 2(c)(i) of the said Act are

of wide import and would include regulation and development of waters and waters of any inter

State river which can only be regulated through construction of reservoirs and dams, etc. Since the

proposed Pulichintala Project is a balancing reservoir with the aim of use, distribution or control of

water of river Krishna, which is inter-State river, such a dispute would be covered within the

definition of 'water dispute' as defined in Section 2(c) of the Act thereby ousting jurisdiction of this

Court. It was urged that it is not necessary that such a dispute must be raised only inter se States.

Even if certain individuals would approach this Court, instead of another State Government, it would

not confer jurisdiction on this Court to entertain a dispute which is a "water dispute". Article 131 of

the Constitution confers original jurisdiction on the Supreme Court to adjudicate upon disputes

between the Government of India and one or more States or between two or more States and

Article 262(2) of the Constitution read with Section 11 of the Inter-State Water Disputes Act bars

jurisdiction of any Court from entertaining any "water dispute" as defined in the said Act. Reliance

was also placed on the decision of Gujarat High Court in Babubhai Jashbhai Patel v. Union of India,

AIR 1983 Guj. 1, stating that invoking jurisdiction of the Court by the petitioners in this Court is

misconceived.

19. We have given due consideration to the objection raised and find no force in such submissions

that the writ petition raised a dispute which is "water dispute" and for that this Court has no

jurisdiction to entertain the writ petition. Article 262 refers to disputes relating to waters and

envisage adjudication of disputes relating to waters of inter-State rivers or river valleys by a special

Tribunal. It says that Parliament by law may provide for adjudication of any dispute or complaint

with respect to the use, distribution or control over the waters of, or in, any inter-State river or river

valley and also provide for barring jurisdiction of the Supreme Court and other Courts that

notwithstanding anything contained in this Constitution, Parliament may by law provide that neither

the Supreme Court nor any other Court shall exercise jurisdiction in respect of such dispute or

complaint in case such a law is brought into force. The Parliament in exercise of its power has

enacted Inter-State Water Disputes Act, 1956, being a legislation to provide for adjudication of

disputes relating to waters of inter-State rivers and river valleys. 'Water dispute' in Section 2(c) is

defined as under:

"any dispute or difference between two or more State Governments with respect to-

(i) the use, distribution or control of the waters of, or in, any inter-State river or river valley; or

(ii) the interpretation of the terms of any agreement relating to the use, distribution or control of

such waters or the implementation of such agreement; or

(iii) the levy of any water-rate in contravention of the prohibition contained in Section 7."

20. Section 11 of the Act bars the jurisdiction of the Supreme Court and other Courts saying:

"Notwithstanding anything contained in any other law, neither the Supreme Court nor any other

Court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a

Tribunal under this Act."

21. A dispute would come within the definition of 'water dispute' if it is between two or more

Governments, which is a sine qua non and therefore the very requirement of the definition is not

met. The argument on behalf of the respondents that what cannot be done directly cannot be

permitted to be done indirectly and therefore the reliefs which the petitioners have sought were the

reliefs before the Supreme Court or could have been raised by other States. Instead of the riparian

States coming forward, certain individuals in the garb of a PIL have approached this Court to stall the

implementation of the project. It was thus urged that any dispute which would have the effect of

stalling a project of the nature which is being envisaged for use, distribution or control of the waters

of an inter-State river would not be entertainable by any Court.

22. In no part of the writ petition, there is any indication or averment that the dispute raised is about

the use, distribution or control of the water of Krishna river arising between States. Andhra Pradesh

is the last beneficiary State of Krishna waters after the States of Karnataka and Maharashtra.

Whatever beneficial uses the State of Andhra Pradesh can make use of the Krishna River, it is by

implementation of one of such projects which is the subject-matter of the present petition. It has

been filed by certain individuals representing one section of the society urging that though there

cannot be any dispute in the implementation of the project but it cannot be constructed at the

proposed site for various reasons or in any case in the absence of any environmental clearance

under the provisions of the Environment (Protection) Act, work cannot be commenced. Other points

have also been raised in the suit that for various reasons, how and in what manner project ought to

be implemented. Dispute would not by any stretch of imagination fall with the definition of 'water

dispute' thereby ousting the jurisdiction of the Court. Before the Division Bench of Gujarat High

Court, writ petition had been filed by Babubhai Jashubhai Patel etc., private citizens by way of public

interest litigation, since they felt that royalty paid to the State for crude oil produced in the State

was extremely low and therefore they had sought quashing of a notification to be illegal. The High

Court in that case held that in view of Article 131 of the Constitution such a petition cannot be

entertained in High Court. Such a dispute could be raised only in Supreme Court. The judgment is

not applicable to the instant case. It cannot be said that either State of Maharashtra or Karnataka

could have raised such a dispute objecting to the location of the site of the project. Petition is filed

by the residents of Andhra Pradesh projecting the cause of the owners of the land likely to be

adversely affected by the implementation of the project. Such a grievance can only be made by or on

behalf of the person interested and not by any of the riparian States. Therefore, neither the bar

contained in Section 11 of the Inter-State Water Disputes Act or Article 262 of the Constitution

would apply nor Article 131 of the Constitution has any relevance and for that reason the objection

of the respondents is unsustainable.

23. The question, thus, remains to be decided is about environmental clearance. As we have noticed

above, it is not the stand of the State Government that environmental clearance is not necessary

before commencement of the construction of the project. In any case, we would make reference on

this point also to the decision in State of Karnataka v. State of A.P. (supra). Two original suits were

decided by the Supreme Court - one filed by the State of Karnataka (O.S. No. 1 of 1997) and the

other by the State of Andhra Pradesh (O.S. No. 2 of 1997). In the suit filed by the State of Andhra

Pradesh, O.S. No. 2 of 1997, Issue No. 15 was whether Upper Krishna State II Multipurpose Project

could be executed without obtaining the environmental clearance under the Environment

(Protection) Act, 1986 and the notification issued by the Central Government in 1994 in exercise of

its powers under the said Act and the rules made thereunder, which mandatorily requires various

analysis, including dam break analysis. Onus of this issue was thus placed on the State of Andhra

Pradesh. State of Andhra Pradesh had sought number of reliefs in the suit, but essentially the reliefs

related to the construction of Almatti Dam by the State of Karnataka. Issue No. 15 had been framed

on the plea raised by the State of Andhra Pradesh that the State of Karnataka was likely to execute

Upper Krishna Stage II Multipurpose Project without getting environmental clearance under the

Environment (Protection) Act under the notification issued by the Central Government in exercise of

powers under the same Act and the Rules made thereunder.

24. The Apex Court held that under Article 256 of the Constitution, it is an obligation for the States

to exercise their power ensuring compliance with the laws made by Parliament and even it enables

the Union Government to give such directions to the State, as may be necessary for that purpose. It

was further held that every such project, whether being executed in the State of Maharashtra or

Karnataka or Andhra Pradesh, must be approved by the appropriate authority of the Government of

India and necessarily, therefore, before any approval is accorded, the project must be found to have

complied with all the relevant laws dealing with the matter. Since before the Supreme Court no

material was placed that the State of Karnataka had carried out any project in contravention of the

provisions of any particular law made by Parliament or in contravention of any direction issued by

the Government of India, the issue was held to be premature. But the Supreme Court laid emphasis

that all the projects of the different States concerning user of water available to them in respect of

an inter-State river must be duly sanctioned by the appropriate authorities of the Government of

India after proper scanning and it is only then the State would be entitled to carry out the same. In

this view of the matter also, we are of the view that it will be totally impermissible for the State of

Andhra Pradesh to proceed ahead in implementing the project without getting appropriate

clearance as is envisaged under the Environment (Protection) Act, 1986.

25. Section 3 of the Environment (Protection) Act, 1986 authorizes the Central Government to take

all such measures as it deems necessary or expedient for the purpose of protecting and improving

the quality of the environment and preventing, controlling and abating environmental pollution.

Sub-section (2) says that in particular and without prejudice to the generality of the provisions of

Sub-section (1) such measures may include restriction of areas in which any 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. Rule 5 of the Rules framed under the Act known as Environment

(Protection) Rules, 1986 deals with the prohibition and restriction on the location of industries and

carrying on processes and operations in different areas. Sub-rule (2) of Rule 5 says that while

prohibiting or restricting the location of industries and carrying on of processes or operations in an

area, the Central Government shall follow the procedure laid down in Subsequent Sub-rules. Sub-

rule (3)(a) deals with the procedure and the manner in which the Central Government can issue

notification in the Official Gazette. It is an admitted position that on 27.1.1994 the Central

Government, in exercise of its powers conferred by Sub-section (1) of Clause (5) of Sub-section (2) of

Section 3 of the Environment (Protection) Act, 1986 read with Clause (d) of Sub-rule (3) of Rule 5 of

the Environment (Protection) Rules, 1986, issued Notification SO. 60(E) dated 27.1.1994 on

environmental impact assessment of development of projects. The said notification directs that, on

and from the date of publication of the notification in the Official Gazette, expansion or

modernization of any activity (if pollution load is to exceed the existing one) or a new project listed

in Schedule I of the Notification shall not be undertaken in any part of India, unless it has been

accorded environmental clearance by the Central Government in accordance with the procedure laid

down in the said Notification. This notification was issued after inviting objections from the general

public. Clause (2) of the Notification lays down the requirements and the procedure for seeking

environmental clearance of the projects. It is not disputed on behalf of the respondents that the

project in question is a new project and is listed in Schedule I of the Notification. Therefore, the said

project, as per the Notification, cannot be undertaken unless environmental clearance has been

accorded by the Central Government in accordance with the procedure laid down in the

Notification.

26. As and when a project listed in Schedule I is required to be undertaken, an application is required

to be Submitted by the project authority to the Secretary of Environment and Forests, New Delhi

and the application has to be in the proforma as specified in Schedule II of the Notification. The

project authority in this case is the State of Andhra Pradesh. The application is required to be

accompanied with certain documents, viz., (i) a project report, which inter alia is required to include

(ii) Environmental Impact Assessment Report, (iii) Environmental Management Plan and (iv) details

of public hearing as specified in Schedule IV prepared in accordance with the guidelines issued by

the Central Government and by the Ministry of Forests and Environment from time to time. Sub-

clause (b) of Clause (2) says that cases rejected due to submission of insufficient or inadequate data

and plans may be reviewed as and when submitted with complete data and plans, but the

submission of incomplete data or plans for the second time would itself be sufficient reason for

Impact Assessment Agency to reject the case summarily.

27. As regards hydropower and major irrigation projects and/or their combination, including flood

control, site specific projects are also required to be included. The project authorities are required to

intimate the project location to the Central Government in the Ministry of Environment and Forests

at the stage of initiating any investigation and survey. Only on receipt of the intimation, the Central

Government in the Ministry of Environment and Forests is required to convey the decision regarding

suitability or otherwise of the proposed site within a maximum period of thirty days. The site

clearance is valid for a period of five years for commencement of the construction. At this stage, the

communication from the Additional Director, Ministry of Environment and Forests addressed to the

Central Government's Standing Counsel becomes relevant and important since the communication

states that the proposal in respect of Pulichintala Major Irrigation Project for site clearance was

received only on 20.10.2004 from the Irrigation and Command Area Development Department,

Government of Andhra Pradesh. It is not the case of the State Government In any of its counter-

affidavit or additional-affidavit that site clearance was obtained from the Central Government in the

Ministry of Environment and Forests. It is also not stated that the proposal was submitted. The

present stage as per the material placed on record is the stage where the project authority, i.e., the

State of Andhra Pradesh while initiating investigation and survey has intimated the project location

site to the Central Government. The Central Government has yet to consider and pass orders within

thirty days. As per the communication of the Additional Director dated 26.10.2004 the site clearance

proposal dated 20.10.2004 is under examination. From the date of submission of the proposal, a

period of thirty days will be over on or about 19.11.2004. Therefore, the very first requirement as

per the notification dated 27.1.1994 is not yet complied with.

28. Paragraph 3 of the Notification further says that the reports submitted with the application for

environmental clearance shall be evaluated and assessed by the Impact Assessment Agency and if

deemed necessary it will consult the Committee of Experts. The said Committee of Experts will have

full right to entry and inspection of the site at any time prior to, during or after commencement of

the operation of the project. This Impact Assessment Agency is required to prepare a set of

recommendations based on technical assessment of the documents and data furnished by the

project authorities and supplemented by the data collected through the visits of sites, if undertaken,

and the details of public hearing.

29. Schedule IV refers to the procedure for public hearing and it says that whosoever applies for

environmental clearance shall submit to the State Pollution Control Board twenty sets of the

documents as mentioned in Part I of the said Schedule. The State Pollution Control Board is required

to cause a notice for environmental public hearing and in the public hearing all persons, including

bona fide residents, environmental groups and others located at the project site/sites of

displacement/sites likely to be affected can participate. They can also make oral/ written suggestions

to the State Pollution Control Board. 'Person' has also been explained in Schedule IV and the

procedure envisaged for providing access to the executive summary of the project to the concerned

persons.

30. The assessment by the Central Agency is required to be completed within a period of ninety days

from the date of receipt of requisite documents and data from the project authorities and

completion of public hearing and the decision has to be conveyed within thirty days thereafter. This

environmental clearance granted is also valid for a period of five years from commencement of the

construction or operation of the project. Nowhere in the affidavit of the State Government it is

stated that it has applied for environmental clearance. No data is furnished; no copy of the

application is pointed out. As a matter of fact, as noticed above, the application is required to

accompany Environmental Impact Assessment Report, Environmental Management Plan and details

of public hearing. Public hearing even as per the stand of the Government has not yet taken place; it

is fixed for 10.11.2004. It is only when such an application is submitted that it has to be evaluated

and assessed by the Impact Assessment Agency, which thereafter may consult a Committee of

Experts. The constitution of the Committee has to be as follows:

"The Committees will consist of experts in the following disciplines:

(i) Eco-System Management (ii) Air/Water Pollution Control (iii) Water Resource Management

(iv) Flora/Fauna Conservation and Management

(v) Land Use Planning

(vi) Social Sciences/Rehabilitation

(vii) Project Appraisal (viii) Ecology

(ix) Environmental Health

(x) Subject Area Specialists

(xi) Representatives of NGOs/Persons concerned with Environmental Issues."

The Impact Assessment Agency is, thereafter, required to prepare a set of recommendations.

Assessment has to be completed within a period of ninety days and thereafter only question of grant

of clearance would arise. Even the stage of assessing the application has not yet arrived.

31. The same Paragraph-3 of the Notification says that "no construction work, preliminary or

otherwise, relating to the setting up of the project may be undertaken till the environmental and/or

site clearance was obtained". As we have noticed above environmental clearance and site clearance

are two different stages. For site clearance the project authorities are required to intimate the

location of the project while initiating any investigation and survey and for environmental clearance

application as per Schedule II is required to be submitted along with accompanying documents. Only

investigation and survey can be initiated by the project authorities before site clearance and before

accord of environmental clearance "no other construction work, whether preliminary or otherwise,

can be undertaken" means no work of any nature relating to the setting up of the project, whether it

be construction work, preliminary or otherwise, can be undertaken. It would include any or each of

the step in the implementation of the project.

32. The case of the State Government is that Pulichintala Project was conceived in the year 1903 by

Mr. Reid, a British Engineer selected the present site for dam construction. The project initially was

intended to be an irrigation project. The project could not be implemented. During 1951, the then

Madras Government had proposed that Krishna-Pennar Projects be constructed in stages and for the

said purpose Planning Commission appointed Khosla Committee, which had drawn up an integrated

programme in stage. At Stage III it was proposed to construct dam at Pulichintala across Krishna

River with FRL +224.5 feet for development of power and for feeding second crop area in Krishna

Delta. State Government has pointed out that Pulichintala Project is now sought to be constructed

with reduced FRL +175 feet for generation of power and stabilized water supply to Krishna Ayacut.

The State Government by taking into consideration the importance of Pulichintala Project submitted

its proposal to the Central Water Commission on 16.1.1996 for its approval and the Central Water

Commission in its 64th meeting of Advisory Committee on Irrigation and Flood Control and

Multipurpose Projects held on 3.4.1996 decided to recommend Pulichintala Project as a techno

economically viable project subject to obtaining environmental clearance. It is further stated that

after recommendation of the Central Water Commission, detailed investigation and survey was

undertaken by the fourth respondent and for obtaining environmental clearance, as prescribed

under the notification dated 27.1,1994. Steps have been taken by the State Government as

suggested by the A. P. Pollution Control Board for conducting public hearing. It was sought to be

conducted on 23.3.1998 but the hearing could not be completed due to various reasons, including

resistance from various groups, political parties and voluntary organizations.

33. In this background, it is the stand of the State Government that it is within its right to go ahead

with the project and environmental clearance could be issued at stages also, more particularly when

the Central Water Commission has approved the project, which has also been cleared by the

Planning Commission.

34. The clearance of project by Central Water Commission of Ministry of Water Resources is not the

clearance, which is the subject-matter before us. Clearance by the Central Water Commission is

about the technical and economical aspects. In 1989 guidelines were issued for submission,

appraisal and clearance of irrigation and multipurpose projects before the Central Water

Commission and their acceptance for Planning Commission for the purpose of inclusion in the State's

development plans. It was resolved in the discussion in National Conference organized by the

Irrigation and Water Resources Ministry held in July, 1986 that the guidelines indicating the

procedure for submission, appraisal and clearance of irrigation and multipurpose project should be

prepared by the project appraisal organization of Central Water Commission. The guidelines say that

the procedure for submission, appraisal and clearance outlined in the guidelines shall be followed by

the State Governments, which require that all major irrigation projects and multipurpose projects

shall be investigated in full details and detailed project reports prepared in accordance with the

guidelines issued by the Government of India, Ministry of Irrigation. The basic planning and

hydrological studies relating to water availability, design flood and sedimentation shall be carried

out by the respective specialized units established in the State Irrigation/Water Resources

Department. These studies shall be vetted by the Central Water Commission so as to avoid any

major change in project features later on. Where project reports have been examined and cleared

by the Central Design Organization and State Level Appraisal Committees, the examination of project

of CWC will be restricted to Inter State aspects, hydrology and dam safety, water availability, water

accounting and economic viability. States are required to submit ten copies along with two sets of

detailed project reports along with the letter of clearance by the Central Design Organization and

State Level Appraisal Committees. Clause 2.22 of the guidelines provided that the Central Water

Commission will send copies of the project reports and relevant proforma to the Ministry of

Environment and Forests for obtaining clearance from the environment and forest angle.

35. Even the National Conference held in 1986 had made it clear that the projects should not be sent

to the Centre for techno-economic examination unless these have been thoroughly and

comprehensively prepared on an integrated basis by a multi-disciplinary cell in conformity with the

guidelines laid down for the purpose and the Central Agencies in turn should review the procedures

for techno-economic and other scrutinies in consultation with the States and Union Territories.

36. Needless to add that as per the State Government's stand, the Advisory Committee on Irrigation

and Flood Control had only decided to "recommend" that Pulichintala Project was a techno-

economically viable project. Whether on such recommendation any clearance was or was not

ultimately accorded by the Central Water Commission is not stated in the counter-affidavit.

However, we are not concerned with the clearance by the Central Water Commission, but are

concerned, as noticed above, with the environmental clearance, which as per the decision of the

Supreme Court is absolutely necessary before State of Andhra Pradesh can undertake the project in

question. We have already referred to the letter from the Additional Director, Ministry of

Environment and Forests, Government of India dated 26.10.2004. It is a communication to the

Central Government's Standing Counsel requesting to bring to the notice of the Court that even site

clearance has not yet been granted and a request for that purpose was received from the State

Government only on 20.10.2004 and still there are thirty days from the date of receipt of the

request for giving site clearance.

37. As per the procedure laid down in the notification dated 27.1.1994 for obtaining environmental

clearance of any project, twenty sets of documents are required to be submitted to the concerned

State Pollution Control Board. Though no details have been submitted before us by the State

Government when it initiated the process of seeking environmental clearance, but what can be

noticed by us and what may be presumable by us from the facts on record is that the State

Government must have initiated steps for environmental clearance prior to 23.3.1998, since it is

stated that as per the suggestion of the A.P. Pollution Control Board steps were taken for conducting

public hearing on 23:3.1998. Application for environmental clearance of the project with twenty sets

of documents, as referred to in Schedule IV, when presented to the State Pollution Control Board

would require the State Pollution Control Board to take steps for issuing notice of public hearing and

the result of public hearing has to be incorporated in the formal application, which ultimately will

have to be submitted to the Secretary, Ministry of Environment and Forests, New Delhi in Schedule

II. Such an application is also required to be accompanied by a project report, which shall inter alia

include an Environmental Impact Assessment Report and Environmental Management Plan and of

course details of public hearing prepared in accordance with the guidelines issued by the Central

Government. Nowhere it is stated that any Environmental Impact Assessment Report has or has not

been obtained or whether any Environmental Management Plan has been prepared. The entire

affidavit of the State Government is silent on this aspect and gives an impression that these steps

are yet to be taken and all necessary formalities is yet to be complied with of submitting appropriate

application in proforma specified in Schedule II of the Notification dated 27.1.1994. It is only

thereafter that the case will have to be assessed and examined by the Central Agency. As noticed

above, any application, if submitted with insufficient or inadequate data and plans is liable to be

rejected and can only be reviewed when submitted with complete data and plans and submission of

incomplete data and plans for the second time itself is sufficient for Impact Assessment Agency to

reject the case summarily. Considering the mandatory nature of the environmental clearance,

procedure has to be meticulously followed. Only on environmental clearance any construction,

preliminary or otherwise, relating to setting up of the project can be undertaken. There is an express

prohibition that "no construction work, preliminary or otherwise, relating to the setting up of the

project may be undertaken till the environmental and/or site clearance is obtained".

38. We understand the anxiety of the State Government in speedy implementation of the project for

which the State Government might be committed. But the question before us is that can the State

Government be permitted to flout the directions of the Supreme Court or the laws made by the

Parliament. The answer has to be in the negative that it cannot do so. In the suit filed by the State

Government against the State of Karnataka itself this position was clarified that under Article 256 of

the Constitution it is an obligation on the part of the State to exercise their power ensuring

compliance with laws made by the Parliament. The Supreme Court specifically asserted that several

provisions of the Constitution have been tested in the last fifty years and there is no reason to

conceive that any State will proceed ahead with its object without getting sanction/ concurrence of

the appropriate authorities and without compliance with the relevant statutes or laws. Only after

proper scanning and approval by the Central Government -Ministry of Environment and Forests, the

State Government would be entitled to carry out and implement the proposed project.

39. There is no manner of doubt that no development is possible without some adverse effect on

ecology and environment and the projects of public utility cannot be abandoned. It is always

necessary to adjust the interests of the people as well as to maintain environment; balance has to be

struck between two interests. Where the commercial venture or enterprise would bring in results,

which are far more useful for the people, difficulties of a small number of people have to be

bypassed. The comparative hardship has to be balanced and the convenience and benefit to the

larger section of the project has to get primacy over comparably lesser hardship. Sustainable

development is essentially a policy and strategy for continued economic and social development

without detriment to the environment and natural resources on the quality of which continued

activity and further development depend. In T.N. Godavarman Thirumalpad v. Union of India, (2002)

10 SCC 606, it was held that duty is cast upon the Government under Article 21 of the Constitution

to protect the environment and there are two principles governing law of environment, viz., the

principle of sustainable development and precautionary principle. We are equally conscious of the

principle that Courts in exercise of their jurisdiction will not transgress into the field of policy

decision and would also not interject the implementation of the project as per the policy of the

Government, but for the time being the second limb of the writ petition that whether or not the

project should continue at the present site or not is premature as was held by Division Bench of this

Court in earlier Writ Petition No. 15425 of 2001. Site clearance and environmental clearance by the

Central Government alone will enable the State Government to proceed ahead with the project.

Both the stages of site clearance and environmental clearance are not yet over. It is a settled

principle that when an authority has power to accord permission or grant clearance, such power to

grant permission or to accord sanction also includes therein the power not to grant such permission

or accord such sanction. It cannot be presumed today that the State Government will necessarily get

site clearance; it cannot also be presumed that the State Government will necessarily get

environmental clearance. Therefore, till such clearances are granted, the challenge by the

petitioners to the project on the other grounds is premature and need not be gone into by us.

40. We have already noticed that only the question being considered is whether or not there should

be a stay. We are not considering such question of grant or non-grant of stay in a matter where

already the project stands cleared and the persons likely to be adversely affected have approached

the Court for staying implementation of the project. Only in a situation like the later that the

question of balance of convenience, comparative hardship would arise for consideration. May be

that on such consideration the Court might be persuaded not to grant stay in larger public interest at

the behest of a minority section of the population. But it is a case like the present one where as per

the admission of the State Government, there is neither any site clearance granted nor

environmental clearance obtained and public hearing is yet to take place, such consideration may

not be relevant at all. It is only when public hearing is concluded that the State Government will be

entitled to apply for environmental clearance. On the ratio of the decision of the Supreme Court

rendered in a suit filed by the Andhra Pradesh Government against the State of Karnataka, it is not

all permissible for the State Government to proceed ahead with the project. In its over-anxiety, to

complete the project expeditiously in a hurried manner, the State Government floated tenders and

awarded contract also. The contractor has undertaken the work and justification that is being

projected in the reply is that the work undertaken is only an investigation work for assessing soil

parameters for the purpose of preparing and finalization of designs, drawings, etc. Comprehensive

design for a plan is required to be submitted before obtaining approval from the Central Water

Commission. The stand which the State Government has taken in Paragraph-7 of the counter-

affidavit dated 26.10.2004 itself would suggest that it is more than an investigation work, which is

going on. It is stated in the said paragraph that site is suitable in all respects and construction of dam

always involves submergence and even if the project is implemented there will not be any major

impact. The notification envisages that no work whatsoever, whether preliminary or otherwise, can

be undertaken. A distinction was tried to be drawn between construction work and any other work

and it was pointed out that digging would not come within the definition of construction. The

digging was only for the purpose of soil testing and for the purpose of preparation of designs. At the

stage of initiating any investigation and survey that project authorities are required to intimate the

location of the site to the Central Government so as to grant site clearance; even that stage is not

over. Therefore, any work undertaken on the spot would not be permissible under the notification.

41. On behalf of the respondents, it was urged that the guidelines and the notification dated

27.1.1994 issued by the Central Government are not having any statutory force. The same can be

taken to be merely in the nature of executive instructions for the guidance of the persons applying

for environmental clearance. Same have no binding effect and even if there is some infraction on the

part of the State Government a writ petition will not lie seeking enforcement of the procedure laid

down in the notification. Reliance was placed on the decision of the Supreme Court in J.R.

Rathupathy v. State of A.P., (1988) 4 SCC 364. We have given due consideration to the. submission

made but do not find any force in such submission. We have already observed above that it is not

the case of the State Government that it is not bound by the Notification of 1994. We have also

taken note of the fact that the State Government was a party to the suit before the Supreme Court

in which itself it was held that the Government is bound to comply with the procedural laws before

undertaking any project. Therefore, the objection raised on behalf of the other respondents, who

are only beneficiaries, will have no force and they cannot be permitted to urge what cannot be

urged by the State Government.

42. Respondents also placed reliance upon the decision of the Bombay High Court in Goa Foundation

v. Konkan Railway Corporation, AIR 1992 Bom. 471, urging that the Division Bench in the said case

dismissed the writ petition filed as public interest litigation and declined to exercise writ jurisdiction

holding that such a petition filed as public interest litigation cannot be entertained since the writ

jurisdiction is to advance the cause of justice and not to defeat the exercises undertaken by the

Government for the public benefit. The machinery of the Court should not be used for subserving

the interest of few individuals or interest of a local area to the detriment of the public at large. It was

urged in the said case before the Bombay High Court that laying of new broad gauge railway line was

sought to be prevented by filing a writ petition and it was sought to be got stayed on the ground that

there was no environmental clearance obtained. The writ petition was dismissed on the ground that

environmental clearance was not necessary and even if environmental clearance is not obtained,

there is no question of grant of stay.

43. Reliance placed on behalf of the respondents on the aforementioned decision of the Bombay

High Court is totally misplaced. The learned Judges of the Bombay High Court took notice of the

respective stand of the parties. In the said case, the claim of the writ petitioner was that the

alignment of rail track would have devastating and irreversible impact upon some lands and that

undertaking such activity without obtaining environmental clearance was not permissible. On the

second question, the Division Bench held that the provisions of the Environment (Protection) Act

had no application in respect of the work undertaken in exercise of powers Under Section 11 of the

Railways Act. It was held that the non-obstante clause of Section 11 makes it dear that the

provisions on the Environment (Protection) Act do not bind the construction or maintenance of

railway line. Irrespective of that objection the Court took into consideration an aspect that it was not

open to frustrate the project of public importance to safeguard the interest of few persons and

therefore there was no balance of convenience in favour of the writ petitioners. Balance has to be

struck between two interests and the Courts are bound to take into consideration the comparative

hardship, which people in the region would suffer by stalling the project of great public utility since

the cost of project was likely to escalate from day-to-day.

44. In the case in hand such is not the situation. The provisions of the Environment (Protection) Act

are applicable and it is impermissible for the State to proceed ahead or undertake the construction

of the project without obtaining environmental clearance. Whether undertaking such a project is for

the benefit of a particular section of the society or not or is in larger public interest is not the

consideration before us at this stage. Without deciding this question we proceed on the assumption

that the construction of project is in larger public interest of immense benefit to the major

population of the State of Andhra Pradesh, and is of an extreme importance having considerable

impact and the anxiety of the State Government is to complete the project as quickly as possible.

But can the State Government be permitted to flout the mandatory provisions of law when the

Supreme Court in the suit filed by the State Government categorically held that implementation of

the project cannot be undertaken without prior concurrence/ clearance. It was urged on behalf of

the respondents with considerable data that a large number of projects have already been

undertaken by the State Government and in most of the cases environmental clearance has not yet

been obtained. Even there is no clearance from the Planning Commission or from the Central Water

Commission but works on such projects are in progress. Thus, it was urged that since a number of

other projects are continuing in the State and works are in progress on those projects, there will be

no lawful justification in staying the implementation of the project in this case since post-facto

clearance can always be obtained by the State Government.

45. From the nature and the contents of the affidavit in reply filed by the State Government, it also

appears that the State Government is labouring under the impression that it will be permissible for it

to obtain environmental clearance post-facto and public hearing is only a formality and, therefore,

there should not be any interjection of the project of such a great magnitude of great public

importance, which so dear to the State Government. Again such a stand has to be turned down and

deprecated that when law requires a thing to be in a particular manner, the same must be done in

the same manner or not done at all. The law envisages that no construction, preliminary or

otherwise, can be undertaken without environmental clearance and the judgment of the Supreme

Court also holds that it is impermissible to undertake construction of project before such a

clearance, therefore, there is no reason why prayer made by the petitioners to that extent in the

writ petition be not allowed.

46. In Narmada Bachao Andolan case (supra) environmental clearance had already been given much

prior to coming into force of 1994 Notification. Such notification was issued during the pendency of

one of the writ petitions. The petitioners were anti dam organizations and were opposing the

construction by raising the height of the dam, which had been in existence since 1986. They had

chosen to challenge the clearance given in 1987 by filing writ petition in 1994. It was noticed that the

project, in fact, had already been cleared more than twenty five years ago when foundation stone

was laid by late Pandit Jawaharlal Nehru and thereafter there had. been agreements in 1974

between four Chief Ministers of Madhya Pradesh, Gujarat, Maharashtra and Rajasthan for

undertaking of the project. Dispute had arisen with regard to the height of the dam, which was

settled with the award given in 1978. In the meanwhile, environmental studies had been conducted.

The Government finally gave environmental clearance in 1987. Thereafter construction of the dam

was undertaken and hundreds and crores were spent thereupon whereafter writ petitioners chose

to file the writ petition. In that background, the Supreme Court held that when projects are

undertaken and hundreds and crores of public money are spent, individuals and organizations under

the garb of public interest litigation cannot be permitted to challenge the decision taken after a

lapse of considerable time. In Paragraph 231 of the judgment, it was observed that while exercising

jurisdiction in public interest litigation cases, the Court has not forsaken its duty as a Court of law

dispensing justice in accordance with law. It is only where there has been a failure on the part of any

authority in acting according to law or in non-action or acting in violation of the law that Courts have

stepped in.

47. In view of what has been discussed above holding that action of the State Government in

implementation of the project without obtaining environmental clearance as envisaged under the

provisions of the Environment (Protection) Act, 1986, the rules framed thereunder and the

notification, is illegal and arbitrary, it is not permissible for the State Government to proceed ahead

with the implementation of the said project till such clearances are obtained. We dispose of this writ

petition with direction to the State Government not to proceed ahead in implementation of the

project and not to undertake any construction work, whether preliminary or otherwise, till

environmental clearance is obtained. The writ petition to that extent is allowed. The miscellaneous

applications are also ordered. The writ petition for the other reliefs is disposed of with the

observation that the said reliefs, at this stage, are premature.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 4937-4940 and 4941-44 of 1998

Appellants: State of Gujarat Vs. Respondent: Mirzapur Moti Kureshi Kassab Jamat and Ors.:Decided

On: 26.10.2005

AND

Appellants: Shree Ahimsa Army Manav Kalyan Jeev Daya Charitable Trust

Vs.

Respondent: Mirzapur Moti Kureshi Kassab Jamat, Ahmedabad and Ors.

[Alongwith Civil Appeal No. 4945 of 1998]

Hon'ble Judges:

R.C. Lahoti, C.J., B.N. Agarwal, Arun Kumar, G.P. Mathur, C.K. Thakker and P.K. Balasubramanyan, JJ.

and (A.K. Mathur, J. Dissenting Opinion)



Catch Words

Acts/Rules/Orders:

Bombay Animal Preservation (Gujarat Amendment) Act, 1994 - Sections 2 and 4; Bombay Animal

Preservation Act, 1954 - Sections 5, 5(1), 5(1A) and 5(2); Bombay Animal Preservation Act, 1948 -

Sections 5, 5(1), 5(2), 5(3) and 6; Bombay Animal Preservation (Gujarat Extension and Amendment)

Act, 1961 - Section 4; Saurashtra Animal Preservation Act, 1956; Bombay Animal Preservation

(Gujarat Amendment) Act, 1979; Constitution of India - Articles 14, 19, 19(1), 19(2) to 19(6), 25,

25(1), 31C, 37, 39, 47, 48, 48A, 51A, 141 and 145(3); Bombay Animal Preservation (Gujarat

Amendment) Ordinance, 1993; Bihar Preservation and Improvement of Animals Act, 1956; Uttar

Pradesh Prevention of Cow Slaughter Act, 1955; Central Provinces and Berar Animal Preservation

Act, 1949; Madhya Pradesh Krishik Pashu Parirakshan (Sanshodhan) Adhiniyam, 1991; Constitution

of India (Forty-second Amendment) Act, 1976 - Articles 48A and 51A; Madhya Pradesh Municipal

Corporation Act; Madhya Pradesh Agricultural Cattle Preservation Act, 1959; Madhya Pradesh

Agricultural Cattle Preservation (Amendment) Act, 1991; Companies Act, 1862; Fines and Recoveries

Act, 1833; Prescription Act 1832

Cases Referred:

Haji Usmanbhai Hasanbhai Qureshi and Ors. v. State of Gujarat, ; Mohd. Hanif Quareshi and Ors. v.

State of Bihar and Ors., 1959 SCR 629; State of West Bengal and Ors. v. Ashutosh Lahiri, Abdul Hakim

Quraishi and Ors. v. State of Bihar, MANU/SC/MANU/SC/0445/19730038/1960; Mohammed Faruk v.

State of Madhya Pradesh and Ors., MANU/SC/0046/1969; Narendra Kumar and Ors. v. The Union of

India and Ors., MANU/SC/0013/1959; Haji Usmanbhai Hassanbhai Qureshi and Ors. v. State of

Gujarat; Hashmattullah v. State of M.P. and Ors., MANU/SC/0518/1996; State of West Bengal and

Ors. v. Ashutosh Lahiri and Ors., MANU/SC/0100/1995; The State of Madras v. Srimathi Champakam

Dorairajan, 1951 SCR 525; Deep Chand and Anr. v. The State of Uttar Pradesh and Ors., 1959 Supp.

(2) SCR 8; In Re : The Kerala Education Bill, 1957, 1959 SCR 995; L.C. Golak Nath and Ors. v. State of

Punjab and Anr., His Holiness Kesavananda Bharati Sripadagalvaru and Anr. v. State of Kerala and

Anr., ; Pathumma and Ors. v. State of Kerala and Ors., ; State of Kerala and Anr. v. N.M. Thomas and

Ors., Municipal Corporation of the City of Ahmedabad and Ors. v. Jan Mohammed Usmanbhai and

Anr., Workmen of Meenakshi Mills Ltd. and Ors., v. Meenakshi Mills Ltd. and Anr., Papnasam Labour

Union v. Madura Coats Ltd. and Anr., The State of Bombay and Anr. v. F.N. Balsara, 1951 SCR 682;

M.R.F. Ltd. v. Inspector, Kerala Govt. and Ors., Kavalappara Kottarathil Kochuni v. State of Madras

and Kerala, O.K. Ghosh v. E.X. Joseph, 1963 Supp. (1) SCR 789; Indian Handicrafts Emporium and Ors.

v. Union of India and Ors., AIIMS Students' Union v. AIIMS and Ors., Mohan Kumar Singhania and

Ors. v. Union of India and Ors., 1992 Supp (1) SCC 594; State of U.P. v. Yamuna Shanker Misra and

Ors., Rural Litigation and Entitlement Kendra and Ors. v. State of Uttar Pradesh and Ors., 1986 (Supp)

SCC 517; T.N. Godavarman Thirumalpad v. Union of India and Ors., State of W.B. and Ors. v. Sujit

Kumar Rana, State of West Bengal v. Subodh Gopal Bose and Ors., 1954 SCR 587; State of West

Bengal v. Union of India, Madhya Bharat Cotton Association Ltd. v. Union of India (UOI) and Anr.,

Krishna Kumar v. Municipal Committee of Bhatapara, (Petition No. 660 of 1954; Narendra Kumar

and Ors. v. Union of India (UOI) and Ors., The State of Maharashtra v. Himmatbhai Narbheram Rao

and Ors., Sushila Saw Mill v. State of Orissa and Ors., Pratap Pharma (Pvt.) Ltd. and Anr. v. Union of

India and Ors., Dharam Dutt v. Union of India, Abul Hakim v. State of Bihar, Mohd. Faruk v. State of

M.P. and Ors., ; Haji Usmanbhai Hasanbhai Qureshi and Ors. v. State of Gujarat, Hashmattullah v.

State of M.P. and Ors., Mohd. Hanif Qureshi's and Ors. v. State of Bihar and Ors., Hanau v. Ehrlich;

Malins v. C.; Cohen v. Bayley; Close v. Steel Co. of Wales Ltd.; Morgan v. Fear; Cohen v. Bayley-

Worthington

JUDGMENT

R.C. Lahoti, C.J.

Page 1361

1. Section 2 of the Bombay Animal Preservation (Gujarat Amendment) Act, 1994 (Gujarat Act No. 4

of 1994) which introduced certain amendments in Section 5 of the Bombay Animal Preservation Act,

1954 (as applicable to the State of Gujarat) has been struck down as ultra vires the Constitution by

the High Court of Gujarat. These three sets of appeals by special leave have been filed thereagainst.

A chain of events, legislative and judicial, lead to the impugned enactment. To appreciate the core

issue arising for decision in these appeals and also the constitutional questions arising therein, it will

be useful to set out the preceding events in their chronological order.

PART - I

Backdrop of Events

Legislative history leading to impugned enactment

2. With a view to conserve the cattle wealth of the State of Bombay, the State Government enacted

the Bombay Animal Preservation Act, 1948 and prohibited slaughter of animals which were useful

for milch, breeding or agricultural purposes. This Act was substituted by the Bombay Animal

Preservation Act of 1954 (hereinafter referred to as 'the Bombay Act'). The provisions relevant for

our purpose are contained in Sections 5 and 6. Sub-sections (1), (2) and (3) of Section 5 and Section 6

are extracted and reproduced hereunder :

"5. (1) Notwithstanding any law for the time being in force or any usage to the contrary, no person

shall slaughter or cause to be slaughtered any animal unless, he has obtained in respect of such

animal a certificate in writing from the Competent Authority appointed for the area that the animal

is fit for slaughter.

Page 1362

(2) No certificate shall be granted under Sub-section (1), if in the opinion of the Competent

Authority--

(a) the animal, whether male or female, is useful or likely to become useful for the purpose of

draught or any kind of agricultural operations;

(b) the animal, if male, is useful or likely to become useful for the purpose of breeding;

(c) the animal, if female, is useful or likely to become useful for the purpose of giving milk or bearing

offspring.

(3) Nothing in this section shall apply to the slaughter of any animal above the age of fifteen years

for bona-fide religious purposes :

Provided that a certificate in writing for such slaughter has been obtained from the Competent

Authority.

(4) xxx�� xxx�� xxx



6. No animal in respect of which a certificate has been issued under Section 5 shall be slaughtered in

any place other than a place specified by such authority or officer as the State Government may

appoint in this behalf."

3. The Preamble to the Act stated - "WHEREAS it is expedient to provide for the preservation of

animals suitable for milch, breeding or for agricultural purposes; It is hereby enacted ...as follows:"

The Statement of Objects and Reasons stated inter alia -"It is now proposed to repeal the Bombay

Animal Preservation Act, 1948 and to undertake fresh legislation, on the basis of a model bill

recommended by the Government of India, in order to stamp out slaughter in unauthorized places

and abetment of offences which were not covered by the Bombay Animal Preservation Act, 1948".

4. The State of Gujarat was formed in the year 1960. Gujarat Legislature enacted The Bombay

Animal Preservation (Gujarat Extension and Amendment) Act, 1961 whereby the Bombay Act was

extended to the State of Gujarat in order to achieve uniformity in law in different parts of the State

with regard to this subject. The Saurashtra Animal Preservation Act, 1956 which was applicable to

that part of Gujarat which formed part of erstwhile State of Saurashtra was repealed. Apart from

extending the Bombay Act, Section 5 of the Bombay Act, which was called 'the principal Act' in the

Gujarat Act of 1961, was also amended by Section 4 thereof which reads as under:

4. Amendment of Section 5 of Bombay LXXII of 1954.- In Section 5 of the principal Act, -

(1) After Sub-section (1), the following sub-section shall be inserted, namely :

"(1A) No certificate under Sub-section (1) shall be granted in respect of a cow.";

Page 1363

(2) in Sub-section (2), for the words "No certificate" the words, brackets, figure and letter "In respect

of an animal to which Sub-section (1A) does not apply, no certificate" shall be substituted;

(3) in Sub-section (3), for the words "religious purposes" the words, "religious purposes, if such

animal is not a cow" shall be substituted.

The above Act was assented to by the Governor on the 1st May, 1961 which was published in the

Gujarat Government Gazette, Extraordinary, Part IV, dated May 6, 1961. The objects of such

extension were mainly two : (i) to achieve uniformity in law in different parts of the State; and (ii) to

impose a ban on cow slaughter. The amendment introduced by Section 4 of the Bombay Animal

Preservation (Gujarat Extension and Amendment) Act, 1961 indicates that slaughter of cow was

totally banned.

5. In 1979, the Gujarat Legislature enacted the Bombay Animal Preservation (Gujarat Amendment)

Act, 1979 to further amend the Bombay Act. Section 2 of this Act is relevant which is extracted and

reproduced hereunder:

2. Amendment of Section 5 of Bom. LXXII of 1954.--In the Bombay Animal Preservation Act, 1954,

Bom. LXXII of 1954, (hereinafter referred to as "the principal Act"), in Section 5,--

(1) for Sub-section (1A), the following shall be substituted, namely:

"(1A) No certificate under Sub-section (1) shall be granted in respect of --

(a) a cow;

(b) the calf of a cow, whether male or female and if male, whether castrated or not;

(c) a bull below the age of sixteen years;

(d) a bullock below the age of sixteen years";

(2) for Sub-section (3), the following sub-section shall be substituted, namely:

"(3) Nothing in this section shall apply to --

(a) the slaughter of any of the following animals for such bonafide religious purposes, as may be

prescribed, namely:

(i) any animal above the age of fifteen years other than a cow, bull or bullock;

(ii) a bull above the age of fifteen years;

(iii) a bullock above the age of fifteen years;

(b) the slaughter of any animal not being a cow or a calf of a cow, on such religious days as may be

prescribed.

Provided that a certificate in writing for the slaughter referred to in Clause (a) or (b) has been

obtained from the Competent Authority."

The Act was preceded by an Ordinance, a reference to which is not necessary. The Statement of

Objects and Reasons of the Act are stated as under:

the Bombay Animal Preservation Act, 1954, although there is a total prohibition against the

slaughter of a cow, the slaughter of progeny of a cow, that is to say bulls, bullocks and calves is Page

1364 prohibited, like that of other bovines only if they are useful or likely to become useful for the

purposes of draught, agricultural operations, breeding, giving milk or bearing off spring. In order to

give effect to the policy of the Government towards further securing the directive principle laid

down in Article 48 of the Constitution namely prohibiting the slaughter of cows and calves and other

milch and draught cattle, it was considered necessary to impose a total prohibition against slaughter

of the aforesaid progeny of a cow below the age of eighteen years as they are useful for the

aforesaid purposes...."

The above-said Act was assented to by the Governor on 16th October 1979. The Act was given

retrospective effect by Sub-section (2) of Section 1 thereof, which provided that the amendment

shall be deemed to have come into force on 28th November, 1978.

6. Digressing a little from the narration of legislative development, here itself we may indicate that

the constitutional validity of the above amendment introduced by the Gujarat Legislature into the

Bombay Act was put in issue and came to be dealt with initially by the Gujarat High Court and then

this Court by a Constitution Bench in Haji Usmanbhai Hasanbhai Qureshi and Ors. v. State of Gujarat,

(1986) 3 SCC 12. The Gujarat High Court turned down the challenge and the decision of the Gujarat

High Court was upheld by this Court. We will revert back to this decision a little later.

7. This was followed by the impugned legislation, the Bombay Animal Preservation (Gujarat

Amendment) Act, 1994. The Bombay Act of 1954 referred to as 'the principal Act' was further

amended by Section 2 of the amending Act which reads as under:

2. In the Bombay Animal Preservation Act, 1954 (hereinafter referred to as "the principal Act"), in

Section 5, -

(1) in Sub-section (1A), for Clauses (c) and (d), the following clauses shall be substituted, namely :

"(c) a bull;

(d) a bullock.";

(2) in Sub-section (3), -

(i) in Clause (a), Sub-clauses (ii) and (iii) shall be deleted;

(ii) in Clause (b), after the words "calf of a cow", the words "bull or bullock" shall be inserted."

8. The Act was preceded by an Ordinance, a reference to the provisions whereof is unnecessary. The

Preamble to the Act reads as under:

"WHEREAS it is established that cow and her progeny sustain the health of the nation by giving them

the life giving milk which is so essential an item in a scientifically balanced diet;

AND WHEREAS the working bullocks are indispensable for our agriculture for they supply power

more than any other animal;

Page 1365

AND WHEREAS the working bullocks are often useful in ploughing the fields, drawal of water from

the wells and also very useful for drawing carts for transporting grains and fodders from the fields to

the residences of farmers as well as to the Agricultural Market Yards;

AND WHEREAS the dung of the animal is cheaper than the artificial manures and extremely useful

for production of bio-gas;

AND WHEREAS it is established that the backbone of Indian agriculture is, in a manner of speaking

the cow and her progeny and have, on their back, the whole structure of the Indian agriculture and

its economic system;

AND WHEREAS it is expedient to give effect to the policy of the State towards securing the principles

laid down in Articles 47, 48 and in Clauses (b) and (c) of Articles 39 of the Constitution of India and to

protect, preserve and sustain cow and its progeny;"

The Statement of Objects and Reasons and the facts set out therein are of relevance and significance

and hence are reproduced hereunder:

"The existing provisions of the Bombay Animal Preservation Act, 1954 provides for prohibition

against the slaughter of cow, calf of a cow, and the bulls and bullocks below the age of sixteen years.

It is an established fact that the cow and her progeny sustain the health of the nation by giving them

the life giving milk which is so essential an item in a scientifically balanced diet.

The economy of the State of Gujarat is still predominantly agricultural. In the agricultural sector, use

of animals for milch, draught, breeding or agricultural purposes has great importance. It has,

therefore, become necessary to emphasise preservation and protection of agricultural animals like

bulls and bullocks. With the growing adoption of non-conventional energy sources like bio-gas

plants, even waste material have come to assume considerable value. After the cattle cease to breed

or are too old to do work, they still continue to give dung for fuel, manure and bio-gas, and

therefore, they cannot be said to be useless. It is well established that the backbone of Indian

agriculture is, in a manner of speaking, the cow and her progeny and have on their back, the whole

structure of the Indian agriculture and its economic system.

In order to give effect to the policy of the State towards securing the principles laid down in Articles

47, 48 and Clause (b) and (c) of Article 39 of the Constitution of India, it was considered necessary

also to impose total prohibition against slaughter of progeny of cow.

As the Gujarat Legislative Assembly was not in session the Bombay Animal Preservation (Gujarat

Amendment) Ordinance, 1993 to amend the said Act was promulgated to achieve the aforesaid

object in the interest of general public. This Bill seeks to replace the said Ordinance by an Act of the

State Legislature."

The Challenge to the Constitutional Validity

9. The constitutional validity of the abovesaid legislation, that is, the Bombay Animal Preservation

(Gujarat Amendment) Act, 1994 was put in issue by four Page 1366 writ petitions filed in the High

Court which were heard and disposed of by a common judgment dated April 16, 1998. Two of the

writ petitions were filed by individuals who were butchers by profession, and are known as Kureshis.

Two writ petitions were filed by the representative bodies of Kureshis. Akhil Bharat Krishi Goseva

Sangh sought for intervention before the High Court and was allowed to be impleaded as a party-

respondent in the writ petitions. Hinsa Virodhak Sangh, Jivan Jagruti Trust and Gujarat Prantiya Arya

Pratinidhi Sabha also sought for intervention and they were also allowed to be impleaded by the

High Court as party-respondents in the writ petitions. The High Court allowed the writ petitions and

struck down the impugned legislation as ultra vires the Constitution. The High Court held that the

Amendment Act imposed an unreasonable restriction on the fundamental rights and therefore, it

was ultra vires the Constitution. The effect of the judgment of the High Court as summed up by the

learned Judges would be that there would not be a total ban on the slaughter of bulls or bullocks

above the age of 16 years; in other words animals could be slaughtered consistently with the

provisions of the parent Act as it stood prior to the amendment brought in by Gujarat Act No. 4 of

1994. Feeling aggrieved by the said decision, the State of Gujarat and Akhil Bharat Krishi Goseva

Sangh have filed these appeals. Shree Ahimsa Army Manav Kalyan Jeev Daya Charitable Trust, a

Public Trust has filed an appeal by special leave, seeking leave of this Court to file the appeal, which

has been granted.

10. On 17.2.2005, a three-Judge Bench of this Court, before which the appeals came up for hearing

directed the matter to be placed for hearing before a Constitution Bench in the following terms of

the order :

"Parties to these appeals agree that the issue involved in these appeals requires interpretation of

the provisions of the Constitution of India especially in regard to the status of Directive Principles vis-

a-vis the Fundamental Rights as well as the effect of introduction of Articles 31C and 51A in the

Constitution.

Therefore, in view of Article 145(3) of the Constitution, we think it appropriate that this matter

should be heard by a Bench of at least 5 Judges."

On 19.7.2005, the Constitution Bench which heard the matter referred it to a Bench of seven Judges

on an opinion that certain prior decisions of this Court by Constitution Benches might call for

reconsideration. This is how the matter came to be heard by this Bench.

11. We have heard Dr. L.M. Singhvi, Shri Soli J. Sorabjee and Shri S.K. Dholakia, Senior Advocates

who led the submissions made on behalf of the appellants in the three sets of appeals. We have also

heard Shri G.L. Sanghi, Senior Advocate and Shri Ramesh P. Bhatt, Senior Advocate, who led the

arguments on behalf of the respondents (writ petitioners in High Court) in the several appeals.

Before we notice and deal with the submissions made by the learned senior counsel for the

appellants and the respondents, it will be useful to set out and deal with some of the decisions

delivered by this Court which have been relied on by the High Court in its impugned judgment, and

on which implicit and forceful reliance was placed by the learned senior Page 1367 counsel for the

respondents in support of the judgment of the High Court.

Relevant Decisions of this Court

12. The most important and leading decision is Mohd. Hanif Quareshi and Ors. v. State of Bihar and

Ors. 1959 SCR 629 (hereinafter referred to as 'Quareshi-I'). We propose to deal with this case

somewhat in detail.

Three legislative enactments banning the slaughter of certain animals were passed respectively by

the States of Bihar, Uttar Pradesh and Madhya Pradesh. In Bihar, the Bihar Preservation and

Improvement of Animals Act, 1956 (Bihar Act II of 1956) was introduced which imposed a total ban

on the slaughter of all categories of animals belonging to the species of bovine cattle. In Uttar

Pradesh, the Uttar Pradesh Prevention of Cow Slaughter Act, 1955 (U.P. Act I of 1956) was enacted

which also imposed a total ban on the slaughter of cows and her progeny which included bulls,

bullocks, heifers and cows. In the State of Madhya Pradesh, it was the C.P. and Berar Animal

Preservation Act (Act LII of 1949) which was amended and applied. It imposed a total ban on the

slaughter of cows and female calf of a cow. The male calf of a cow, bull, bullock, buffalo (male or

female, adult or calf) could be slaughtered only on obtaining a certificate. The bans, as imposed by

the three legislations were the subject matter of controversy.

13. The challenge to the constitutional validity of the three legislations was founded on the following

three grounds, as was dealt with in the judgment : (i) that the total ban offended the religion of the

Muslims as the sacrifice of a cow on a particular day is enjoined or sanctioned by Islam; (ii) that such

ban offended the fundamental right guaranteed to the Kasais (Butchers) under Article 19(1)(g) and

was not a reasonable and valid restriction on their right; and (iii) that a total ban was not in the

interest of the general public. On behalf of the States, heavy reliance was placed on Article 48 of the

Constitution to which the writ petitioners responded that under Article 37 the Directive Principles

were not enforceable by any court of law and, therefore, Article 48 had no relevance for the purpose

of determining the constitutional validity of the impugned legislations which were alleged to be

violative of the fundamental rights of the writ petitioners.

Dealing with the challenge to the constitutional validity of the legislations, their Lordships reiterated

the well accepted proposition based on several pronouncements of this Court that there is always a

presumption in favour of the constitutionality of an enactment and that the burden lies upon him

who attacks it to show that there has been a clear violation of the constitutional principles. The

legislative wisdom as expressed in the impugned enactment can be pressed into service to support

the presumption. Chief Justice S.R. Das spoke for the Constitution Bench and held : (i) that a total

ban on the slaughter of cows of all ages and calves of cows and calves of she-buffaloes, male or

female, was quite reasonable and valid and is in consonance with the Directive Principles laid down

in Article 48; (ii) that a total ban on the slaughter of she-buffaloes or breeding bulls or working

bullocks (cattle Page 1368 as well as buffaloes) as long as they are capable of being used as milch or

draught cattle was also reasonable and valid; and (iii) that a total ban on slaughter of she-buffaloes,

bulls and bullocks (cattle or buffalo) after they ceased to be capable of yielding milk or of breeding or

working as draught animals could not be supported as reasonable in the interests of the general

public and was invalid.

14. The first ground of challenge was simply turned down due to the meagre materials placed before

their Lordships and the bald allegations and denials made by the parties. No one specially competent

to expound the religious tenets of Islam filed any affidavit and no reference was made to any

particular Surah of the Holy Quran which, in terms, requires the sacrifice of a cow. It was noticed

that many Muslims do not sacrifice cow on the BakrI'd day. Their Lordships stated, inter alia :

"It is part of the known history of India that the Moghul Emperor Babar saw the wisdom of

prohibiting the slaughter of cows as and by way of religious sacrifice and directed his son Humayun

to follow this example. Similarly Emperors Akbar, Jehangir, and Ahmad Shah, it is said, prohibited

cow slaughter. Nawab Hyder Ali of Mysore made cow slaughter an offence punishable with the

cutting of the hands of the offenders. Three of the members of the Gosamvardhan Enquiry

Committee set up by the Uttar Pradesh Government in 1953 were Muslims and concurred in the

unanimous recommendation for total ban on slaughter of cows. We have, however, no material on

the record before us which will enable us to say, in the face of the foregoing facts, that the sacrifice

of a cow on that day is an obligatory overt act for a Mussalman to exhibit his religious belief and

idea. In the premises, it is not possible for us to uphold this claim of the petitioners." (p.651)

In State of West Bengal and Ors. v. Ashutosh Lahiri, this Court has noted that sacrifice of any animal

by muslims for the religious purpose on BakrI'd does not include slaughtering of cow as the only way

of carrying out that sacrifice. Slaughtering of cow on BakrI'd is neither essential to nor necessarily

required as part of the religious ceremony. An optional religious practice is not covered by Article

25(1). On the contrary, it is common knowledge that cow and its progeny, i.e., bull, bullocks and

calves are worshipped by Hindus on specified days during Diwali and other festivals like Makr-

Sankranti and Gopashtmi. A good number of temples are to be found where the statue of 'Nandi' or

'Bull' is regularly worshipped. However, we do not propose to delve further into the question as we

must state, in all fairness to the learned Counsel for the parties, that no one has tried to build any

argument either in defence or in opposition to the judgment appealed against by placing reliance on

religion or Article 25 of the Constitution.

15. Dealing with the challenge founded on Article 14 of the Constitution, their Lordships reiterated

the twin tests on the anvil of which the reasonability of classification for the purpose Of legislation

has to be tested, Page 1369 namely, (i) that the classification must be founded on an intelligible

differentia which distinguishes persons or things that are grouped together from others left out of

the group, and (ii) that such differentia must have a rational relation to the object sought to be

achieved by the statute in question (p.652). Applying the twin tests to the facts of the cases before

them, their Lordships held that it was quite clear that the objects sought to be achieved by the

impugned Acts were the preservation, protection and improvement of livestocks. Cows, bulls,

bullocks and calves of cows are no doubt the most important cattle for the agricultural economy of

this country. Female buffaloes yield a large quantity of milk and are, therefore, well looked after and

do not need as much protection as cows yielding a small quantity of milk require. As draught cattle,

male buffaloes are not half as useful as bullocks. Sheep and goat give very little milk compared to

the cows and the female buffaloes and have practically no utility as draught animals. These different

categories of animals being susceptible of classification into separate groups on the basis of their

usefulness to society, the butchers who kill each category may also be placed in distinct classes

according to the effect produced on society by the carrying on of their respective occupations (p.

653). Their Lordships added :

"The attainment of these objectives may well necessitate that the slaughterers of cattle should be

dealt with more stringently than the slaughterers of, say, goats and sheep. The impugned Acts,

therefore, have adopted a classification on sound and intelligible basis and can quite clearly stand

the test laid down in the decisions of this Court. Whatever objections there may be against the

validity of the impugned Acts the denial of equal protection of the laws does not, prima facie, appear

to us to be one of them. In any case, bearing in mind the presumption of constitutionality attaching

to all enactments founded on the recognition by the court of the fact that the legislature correctly

appreciates the needs of its own people there appears to be no escape from the conclusion that the

petitioners have not discharged the onus that was on them and the challenge under Article 14

cannot, therefore, prevail." (p. 653)

The challenge to the constitutional validity founded under Article 14 was clearly and in no

unmistaken terms turned down.

16. The third contention, that is, whether the "total prohibition" could be sustained as a reasonable

restriction on the fundamental right of the butchers to slaughter animals of their liking or in which

they were trading, was dealt with in great detail. This is the aspect of the decision of the Constitution

Bench in Quareshi-I which, in the submission of the learned senior counsel for the appellants, was

not correctly decided and, therefore, calls for reconsideration. The question was dealt with by their

Lordships from very many angles. Whether the restrictions permissible under Clause (6) of Article 19

may extend to "total prohibition" -- was treated by their Lordships as a vexed question and was left

open without expressing any final opinion as their Lordships chose to concentrate on the issue as to

whether the restriction was at all reasonable in the interests of the general public, de hors the fact

whether it could be held to be partial or total.

Page 1370

Their Lordships referred to a lot of documentary evidence which was produced before them, such as

(i) the figures of 1951 Animals' Census; (ii) Report on the Marketing of Cattle in India issued by the

Directorate of Marketing and Inspection, Ministry of Goods and Agriculture, Government of India,

1956; and (iii) the figures given in the First and Second Five Years Plans and so on. Their Lordships

concluded that if the purpose of sustaining the health of the nation by the usefulness of the cow and

her progeny was achieved by the impugned enactments the restriction imposed thereby could be

held to be reasonable in the interest of the general public.

Their Lordships referred to other documents as well. The findings of fact arrived at, based on such

evidence may briefly be summed up. In the opinion of their Lordships, cow progeny ceased to be

useful as a draught cattle after a certain age and they, although useful otherwise, became a burden

on the limited fodder available which, but for the so-called useless animals, would be available for

consumption by milch and draught animals. The response of the States in setting up Gosadans

(protection home for cow and cow progeny) was very poor. It was on appreciation of the

documentary evidence and the deduction drawn therefrom which led their Lordships to conclude

that in spite of there being a presumption in favour of the validity of the legislation and respect for

the opinion of the legislatures as expressed by the three impugned enactments, they were inclined

to hold that a total ban of the nature imposed could not be supported as reasonable in the interests

of the general public.

17. While dealing with the submissions made by the learned senior counsel before us, we would

once again revert to this judgment. It would suffice to observe here that, excepting for one limited

ground, all other grounds of challenge to the constitutional validity of the impugned enactments had

failed.

18. In Abdul Hakim Quraishi and Ors. v. State of Bihar, (hereinafter referred to as Quraishi-II) once

again certain amendments made by the Legislatures of the States of Bihar, Madhya Pradesh and

Uttar Pradesh were put in issue. The ground of challenge was confined to Article 19(1)(g) read with

Article 19(6). The ban as imposed by the impugned Act was once again held to be 'total' and hence

an unreasonable restriction. The Constitution Bench, by and large, chose to follow the dictum of this

Court in Quareshi-I.

In Mohammed Faruk v. State of Madhya Pradesh and Ors., , the State Government issued a

notification whereby the earlier notification issued by the Jabalpur Municipality which permitted the

slaughter of bulls and bullocks along with other animals was recalled. Para 6 of the judgment notes

the anguish of the Constitution Bench, as in the opinion of their Lordships, the case was apparently

another attempt, though on a restricted scale, to circumvent the judgment of this Court in Quareshi-

I. Vide para 9, Page 1371 their Lordships have noticed the decision of this Court in Narendra Kumar

and Ors. v. The Union of India and Ors., which upholds the view that the term "restriction" in Articles

19(5) and 19(6) of the Constitution includes cases of "prohibition" also. Their Lordships drew a

distinction between cases of "control" and "prohibition" and held that when the exercise of a

fundamental right is prohibited, the burden of proving that a total ban on the exercise of the right

alone would ensure the maintenance of the general public interest lies heavily upon the State. As

the State failed in discharging that burden, the notification was held liable to be struck down as

imposing an unreasonable restriction on the fundamental right of the petitioners.

In Haji Usmanbhai Hassanbhai Qureshi and Ors. v. State of Gujarat, (hereinafter referred to as

'Qureshi-III') the constitutional validity of the Bombay Act as amended by Gujarat Act 16 of 1961 was

challenged. The ban prohibited slaughter of bulls and bullocks below the age of 16 years. The

petitioners pleaded that such a restriction on their right to carry on the trade or business in beef and

allied articles was unreasonable. Yet another plea was urged that the total ban offended their

religion as qurbani (sacrifice) at the time of BakrI'd or Id festival as enjoined and sanctioned by Islam.

The High Court rejected the challenge on both the grounds. The writ petitioners came in appeal to

this Court. The appeal was dismissed. While doing so, this Court took note of the material made

available in the form of an affidavit filed by the Under Secretary to the Government of Gujarat,

Agriculture, Forest and Cooperation Department wherein it was deposed that because of

improvement and more scientific methods of cattle breeding and advancement in the science of

looking after the health of cattle in the State of Gujarat, today a situation has been reached wherein

the cattle remain useful for breeding, draught and other agricultural purposes above the age of 16

years as well. As the bulls and bullocks upto the 16 years of age continued to be useful, the

prescription of the age of 16 years up to which they could not be slaughtered was held to be a

reasonable restriction, keeping in mind the balance which has to be struck between public interest

which requires useful animals to be preserved, and permitting the appellants (writ petitioners) to

carry on their trade and profession. The test of reasonableness of the restriction on the fundamental

right guaranteed by Article 19(1)(g) was held to have been satisfied.

The challenge based on Article 14 of the Constitution alleging the impugned legislation to be

discriminatory, as it was not uniform in respect of all cattle, was rejected.

The Court also held that buffaloes and their progeny, on the one hand and cows and their progeny,

on the other hand constitute two different classes and their being treated differently does not

amount to hostile discrimination.

19. In Hashmattullah v. State of M.P. and Ors., vires of M.P. Krishik Pashu Parirakshan (Sanshodhan)

Adhiniyam, 1991 imposing a total Page 1372 ban on the slaughter of bulls and bullocks in the State

of Madhya Pradesh was challenged. The validity of the amending Act was upheld by the High Court.

The writ petitioners came up in appeal to this Court which was allowed and the amending Act was

struck down as ultra vires the Constitution.

In State of West Bengal and Ors. v. Ashutosh Lahiri and Ors., , the legislation impugned therein

permitted slaughter of cows on the occasion of BakrI'd subject to an exemption in that regard being

allowed by the State Government. The power to grant such an exemption was challenged. The High

Court allowed the writ petition and struck down the power of the State Government to grant such

an exemption. There was a total ban imposed on the slaughter of healthy cows and other animals

mentioned in the schedule under Section 2 of the Act. The State of West Bengal appealed. On a

review of earlier decisions of this Court, the three-Judge Bench concluded that it was a settled legal

position that there was no fundamental right of Muslims to insist on slaughter of healthy cows on

the occasion of BakrI'd. The contention that not only an essential religious practice under Article

25(1) of Constitution, but even optional religious practice could be permitted, was discarded. The

Court held - "We, therefore, entirely concur with the view of the High Court that slaughtering of

healthy cows on BakrI'd is not essential or required for religious purpose of Muslims or in other

words it is not a part of religious requirement for a Muslim that a cow must be necessarily sacrificed

for earning religious merit on BakrI'd."

Issues in Present Set of Appeals

20. Though there is no explicit concession given but it became clear during the course of prolonged

hearing before us that the decision of this case hinges much on the answer to the question whether

the view of this Court in Quareshi-I is to be upheld or not. While the submission of the learned

senior counsel for the appellants has been that, to the extent the Constitution Bench in Quareshi-I

holds the total ban on slaughter of cow progeny to be unconstitutional, it does not lay down good

law for various reasons, the learned senior counsel for the writ petitioners-respondents has

submitted that Quareshi-I leads a chain of five decisions of this Court which in view of the principle

of stare decisis, this Court should not upset. The learned senior counsel for the appellants find

following faults with the view taken by this Court in Quareshi-I, to the extent to which it goes against

the appellants:

(1) Quareshi-I holds Directive Principles of State Policy to be unenforceable and subservient to the

Fundamental Rights and, therefore, refuses to assign any weight to the Directive Principle contained

in Article 48 of the Constitution and refuses to hold that its implementation can be a valid ground for

proving reasonability of the restriction imposed on the Fundamental Right guaranteed by Article

19(1)(g) of the Constitution - a theory which stands discarded in a series of subsequent decisions of

this Court.

(2) What has been noticed in Quareshi-I is Article 48 alone; Article 48A and Article 51A(g) were not

noticed as they were not available then, as they were introduced in the Constitution by Forty-second

Amendment with effect from 3.1.1977.

Page 1373

(3) The meaning assigned to "other milch and draught cattle" in Quareshi-I is not correct. Such a

narrow view as has been taken in Quareshi-I does not fit into the scheme of the Constitution and, in

particular, the spirit of Article 48.

(4) Quareshi-I does not assign the requisite weight to the facts contained in the Preamble and

Statement of Objects and Reasons of the enactments impugned therein.

(5) 'Restriction' and 'Regulation' include 'Prohibition' and a partial restraint does not amount to total

prohibition. Subsequent to the decision in Quareshi-I the trend of judicial decisions in this area

indicates that regulation or restriction within the meaning of Articles 19(5) and 19(6) of the

Constitution includes total prohibition - the question which was not answered and left open in

Quareshi-I.

(6) In spite of having decided against the writ petitioners on all their principal pleas, the only ground

on which the constitutional validity of the impugned enactments was struck down in Quareshi-I is

founded on the finding of facts that cow progeny ceased to be useful after a particular age, that

preservation of such 'useless cattle' by establishment of gosadan was not a practical and viable

proposition, that a large percentage of the animals, not fit for slaughter, are slaughtered

surreptitiously outside the municipal limits, that the quantum of available fodder for cattle added

with the dislodgment of butchers from their traditional profession renders the total prohibition on

slaughter not in public interest. The factual situation has undergone a drastic change since then and

hence the factual foundation, on which the legal finding has been constructed, ceases to exist

depriving the later of all its force.

The learned senior counsel for the appellants further submitted that Quareshi-I forms the

foundation for subsequent decisions and if the very basis of Quareshi-I crumbles, the edifice of

subsequent decisions which have followed Quareshi-I would also collapse. We will examine the

validity of each of the contentions so advanced and at the end also examine whether the principle of

stare decisis prevents us from reopening the question answered in favour of writ petitioners in

Quareshi-I.

PART - II

Question-1. Fundamental Rights and Directive Principles:

21. "It was the Sapru Committee (1945) which initially suggested two categories of rights: one

justiciable and the other in the form of directives to the State which should be regarded as

fundamental in the governance of the country .... Those directives are not merely pious declarations.

It was the intention of the framers of the Constitution that in future both the Legislature and the

Executive should not merely pay lip service to these principles but they should be made the basis of

all legislative and executive actions that the future Government may be taking in matter of

governance of the country. (Constituent Assembly Debates, Vol.7, at page 41)" (See: The

Constitution of India, D.J. De, Second Edition, 2005, p. 1367). If we were to trace the history of

conflict and irreconciliability between Fundamental Rights and Page 1374 Directive Principles, we

will find that the development of law has passed through three distinct stages.

To begin with, Article 37 was given a literal meaning holding the provisions contained in Part IV of

the Constitution to be unenforceable by any Court. In The State of Madras v. Srimathi Champakam

Dorairajan, 1951 SCR 525, it was held that the Directive Principles of State Policy have to conform to

and run as subsidiary to the Chapter of Fundamental Rights. The view was reiterated in Deep Chand

and Anr. v. The State of Uttar Pradesh and Ors., 1959 Supp. (2) SCR 8. The Court went on to hold that

disobedience to Directive Principles cannot affect the legislative power of the State. So was the view

taken in In Re : The Kerala Education Bill, 1957, 1959 SCR 995.

With L.C. Golak Nath and Ors. v. State of Punjab and Anr., , the Supreme Court departed from the

rigid rule of subordinating Directive Principles and entered the era of harmonious construction. The

need for avoiding a conflict between Fundamental Rights and Directive Principles was emphasized,

appealing to the legislature and the courts to strike a balance between the two as far as possible.

Having noticed Champakam (supra) even the Constitution Bench in Quareshi-I chose to make a

headway and held that the Directive Principles nevertheless are fundamental in the governance of

the country and it is the duty of the State to give effect to them. "A harmonious interpretation has to

be placed upon the Constitution and so interpreted it means that the State should certainly

implement the directive principles but it must do so in such a way that its laws do not take away or

abridge the fundamental rights, for otherwise the protecting provisions of Part III will be a 'mere

rope of sand'." Thus, Quareshi-I did take note of the status of Directive Principles having been

elevated from 'sub-ordinate' or 'sub-servient' to 'partner' of Fundamental Rights in guiding the

nation.

His Holiness Kesavananda Bharati Sripadagalvaru and Anr. v. State of Kerala and Anr., a thirteen-

Judge Bench decision of this Court is a turning point in the history of Directive Principles

jurisprudence. This decision clearly mandated the need for bearing in mind the Directive Principles

of State Policy while judging the reasonableness of the restriction imposed on Fundamental Rights.

Several opinions were recorded in Kesavananda Bharati and quoting from them would significantly

increase the length of this judgment. For our purpose, it would suffice to refer to the seven-Judge

Bench decision in Pathumma and Ors. v. State of Kerala and Ors., wherein the learned Judges neatly

summed up the ratio of Kesavananda Bharati and other decisions which are relevant for our

purpose. Pathumma (supra) holds :

"(1) Courts interpret the constitutional provisions against the social setting of the country so as to

show a complete consciousness and deep awareness Page 1375 of the growing requirements of

society, the increasing needs of the nation, the burning problems of the day and the complex issues

facing the people, which the legislature, in its wisdom, through beneficial legislation, seeks to solve.

The judicial approach should be dynamic rather than static, pragmatic and not pedantic and elastic

rather than rigid. This Court while acting as a sentinel on the qui vive to protect fundamental rights

guaranteed to the citizens of the country must try to strike a just balance between the fundamental

rights and the larger and broader interests of society so that when such a right clashes with a larger

interest of the country it must yield to the latter.(Para 5)

(2) The Legislature is in the best position to understand and appreciate the needs of the people as

enjoined in the Constitution. The Court will interfere in this process only when the statute is clearly

violative of the right conferred on a citizen under Part III or when the Act is beyond the legislative

competence of the legislature. The courts have recognised that there is always a presumption in

favour of the constitutionality of the statutes and the onus to prove its invalidity lies on the party

which assails it. (Para 6)

(3) The right conferred by Article 19(1)(f) is conditioned by the various factors mentioned in Clause

(5). (Para 8)

(4) The following tests have been laid down as guidelines to indicate in what particular

circumstances a restriction can be regarded as reasonable:

(a) In judging the reasonableness of the restriction the court has to bear in mind the Directive

Principles of State Policy. (Para 8)

(b) The restrictions must not be arbitrary or of an excessive nature so as to go beyond the

requirements of the interests of the general public. The legislature must take intelligent care and

deliberation in choosing the course which is dictated by reason and good conscience so as to strike a

just balance between the freedom in the article and the social control permitted by the restrictions

under the article. (Para 14)

(c) No abstract or general pattern or fixed principle can be laid down so as to be of universal

application. It will have to vary from case to case and having regard to the changing conditions, the

values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding

circumstances all of which must enter into the judicial verdict. (Para 15)

(d) The Court is to examine the nature and extent, the purport and content of the right, the nature

of the evil sought to be remedied by the statute, the ratio of harm caused to the citizen and the

benefit conferred on the person or the community for whose benefit the legislation is passed. (Para

18 )

(e) There must be a direct and proximate nexus or a reasonable connection between the restriction

imposed and the object which is sought to be achieved. (Para 20)

(f) The needs of the prevailing social values must be satisfied by the restrictions meant to protect

social welfare. (Para 22)

Page 1376

(g) The restriction has to be viewed not only from the point of view of the citizen but the problem

before the legislature and the object which is sought to be achieved by the statute. In other words,

the Court must see whether the social control envisaged by Article 19(1) is being effectuated by the

restrictions imposed on the fundamental right. However important the right of a citizen or an

individual may be it has to yield to the larger interests of the country or the community. (Para 24)

(h) The Court is entitled to take into consideration matters of common report history of the times

and matters of common knowledge and the circumstances existing at the time of the legislation for

this purpose. (Para 25)"

(underlining by us)

In State of Kerala and Anr. v. N.M. Thomas and Ors., also a seven-Judge Bench of this Court culled

out and summarized the ratio of this Court in Kesavananda Bharati. Fazal Ali, J extracted and set out

the relevant extract from the opinion of several Judges in Kesavananda Bharati and then opined:

"In view of the principles adumbrated by this Court it is clear that the directive principles form the

fundamental feature and the social conscience of the Constitution and the Constitution enjoins upon

the State to implement these directive principles. The directives thus provide the policy, the

guidelines and the end of socio-economic freedom and Articles 14 and 16 are the means to

implement the policy to achieve the ends sought to be promoted by the directive principles. So far

as the courts are concerned where there is no apparent inconsistency between the directive

principles contained in Part IV and the fundamental rights mentioned in Part III, which in fact

supplement each other, there is no difficulty in putting a harmonious construction which advances

the object of the Constitution. Once this basic fact is kept in mind, the interpretation of Articles 14

and 16 and their scope and ambit become as clear as day."

The message of Kesavananda Bharati is clear. The interest of a citizen or section of a community,

howsoever important, is secondary to the interest of the country or community as a whole. For

judging the reasonability of restrictions imposed on Fundamental Rights the relevant considerations

are not only those as stated in Article 19 itself or in Part-Ill of the Constitution; the Directive

Principles stated in Part-IV are also relevant. Changing factual conditions and State policy, including

the one reflected in the impugned enactment, have to be considered and given weightage to by the

courts while deciding the constitutional validity of legislative enactments. A restriction placed on any

Fundamental Right, aimed at securing Directive Principles will be held as reasonable and hence intra

vires subject to two limitations : first, that it does not run in clear conflict with the fundamental

right, and secondly, that it has been enacted within the legislative competence of the enacting

legislature under Part XI Chapter I of the Constitution.

Page 1377

In Municipal Corporation of the City of Ahmedabad and Ors. v. Jan Mohammed Usmanbhai and Anr.,

what was impugned before the High Court was a standing order issued by the Municipal

Commissioner of the State of Ahmedabad, increasing the number of days on which slaughter houses

should be kept closed to seven, in supersession of the earlier standing order which directed the

closure for only four days. The writ petitioner, a beef dealer, challenged the constitutional validity of

the impugned standing orders (both, the earlier and the subsequent one) as violative of Articles 14

and 19(1)(g) of the Constitution. The challenge based on Articles 14 of the Constitution was turned

down both by the High Court and the Supreme Court. However, the High Court had struck down the

seven days closure as not "in the interests of the general public" and hence not protected by Clause

(6) of Article 19 of the Constitution. In appeal preferred by the Municipal Corporation, the

Constitution Bench reversed the Judgment of the High Court and held that the objects sought to be

achieved by the impugned standing orders were the preservation, protection and improvement of

live-stock, which is one of the Directive Principles. Cows, bulls, bullocks and calves of cows are no

doubt the most important cattle for our agricultural economy. They form a separate class and are

entitled to be treated differently from other animals such as goats and sheep, which are

slaughtered. The Constitution Bench ruled that the expression "in the interests of general public" is

of a wide import covering public order, public health, public security, morals, economic welfare of

the community and the objects mentioned in Part IV of the Constitution.

In Workmen of Meenakshi Mills Ltd. and Ors. v. Meenakshi Mills Ltd. and Anr., the Constitution

Bench clearly ruled (vide para 27) - "Ordinarily any restriction so imposed which has the effect of

promoting or effectuating a directive principle can be presumed to be a reasonable restriction in

public interest." Similar view is taken in Papnasam Labour Union v. Madura Coats Ltd. and Anr.,

Directive Principles

22. Long back in The State of Bombay and Anr. v. F.N. Balsara, 1951 SCR 682, a Constitution Bench

had ruled that in judging the reasonableness of the restrictions imposed on the Fundamental Rights,

one has to bear in mind the Directive Principles of State Policy set-forth in Part IV of the

Constitution, while examining the challenge to the constitutional validity of law by reference to

Article 19(1)(g) of the Constitution.

In a comparatively recent decision of this Court in M.R.F. Ltd. v. Inspector, Kerala Govt. and Ors., this

Court, on a conspectus of its Page 1378 various prior decisions summed up principles as 'clearly

discernible', out of which three that are relevant for our purpose, are extracted and reproduced

hereunder.

"13. On a conspectus of various decisions of this Court, the following principles are clearly

discernible:

(1) While considering the reasonableness of the restrictions, the court has to keep in mind the

Directive Principles of State Policy.

xxx�� xxx�� xxx�� xxx

(3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed

principle can be laid down so as to be of universal application and the same will vary from case to

case as also with regard to changing conditions, values of human life, social philosophy of the

Constitution, prevailing conditions and the surrounding circumstances.

xxx�� xxx�� xxx�� xxx

(6) There must be a direct and proximate nexus or a reasonable connection between the restrictions

imposed and the object sought to be achieved. If there is a direct nexus between the restrictions and

the object of the Act, then a strong presumption in favour of the constitutionality of the Act will

naturally arise. (See: Kavalappara Kottarathil Kochuni v. State of Madras and Kerala, O.K. Ghosh v.

E.X. Joseph, 1963 Supp. (1) SCR 789)"

Very recently in Indian Handicrafts Emporium and Ors. v. Union of India and Ors., this Court while

dealing with the case of a total prohibition reiterated that 'regulation' includes 'prohibition' and in

order to determine whether total prohibition would be reasonable, the Court has to balance the

direct impact on the fundamental right of the citizens as against the greater public or social interest

sought to be ensured. Implementation of the Directive Principles contained in Part IV is within the

expression of 'restriction in the interests of the general public'.

Post Kesavananda Bharati so far as the determination of the position of Directive Principles, vis-a-vis

Fundamental Rights are concerned, it has been an era of positivism and creativity. Article 37 of the

Constitution which while declaring the Directive Principles to be unenforceable by any Court goes on

to say -"that they are nevertheless fundamental in the governance of the country." Several clauses

of Article 37 themselves need to be harmoniously construed assigning equal weightage to all of

them. The end part of Article 37 - "It shall be the duty of the State to apply these principles in making

laws" is not a pariah but a constitutional mandate. The series of decisions which we have referred to

hereinabove and the series of decisions which formulate the 3-stages of development of the

relationship between Directive Principles and Fundamental Rights undoubtedly hold that, while

interpreting the interplay of rights and restrictions, Part-III (Fundamental Rights) and Page 1379 Part-

IV (Directive Principles) have to be read together. The restriction which can be placed on the rights

listed in Article 19(1) are not subject only to Articles 19(2) to 19(6); the provisions contained in the

chapter on Directive Principles of State Policy can also be pressed into service and relied on for the

purpose of adjudging the reasonability of restrictions placed on the Fundamental Rights.

Question - 2 Fundamental Rights and Articles 48, 48-A and 51-A (a) of Constitution

23. Articles 48, 48-A and 51-A(g) (relevant clause) of the Constitution read as under :

"48. Organisation of agriculture and animal husbandry.--The State shall endeavour to organise

agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps

for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other

milch and draught cattle.

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.

51-A. Fundamental duties.--It shall be the duty of every citizen of India--

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and

to have compassion for living creatures;"

Articles 48-A and 51-A have been introduced into the body of the Constitution by the Constitution

(Forty-second Amendment) Act, 1976 with effect from 3.1.1977. These Articles were not a part of

the Constitution when Quareshi-I, Quraishi-II and Mohd. Faruk's cases were decided by this Court.

Further, Article 48 of the Constitution has also been assigned a higher weightage and wider expanse

by the Supreme Court post Quareshi-I. Article 48 consists of two parts. The first part enjoins the

State to "endeavour to organize agricultural and animal husbandry" and that too "on modern and

scientific lines". The emphasis is not only on 'organization' but also on 'modern and scientific lines'.

The subject is 'agricultural and animal husbandry'. India is an agriculture based economy. According

to 2001 census, 72.2% of the population still lives in villages (See- India Vision 2020, p.99) and

survives for its livelihood on agriculture, animal husbandry and related occupations. The second part

of Article 48 enjoins the State, de hors the generality of the mandate contained in its first part, to

take steps, in particular, "for preserving and improving the breeds and prohibiting the slaughter of

cows and calves and other milch and draught cattle".

24. Article 48-A deals with "environment, forests and wild life". These three subjects have been dealt

with in one Article for the simple reason that the three are inter-related. Protection and

improvement of environment is necessary for safeguarding forests and wild life, which in turn

protects and improves the environment. Forests and wild life are clearly inter-related and inter-

dependent. They protect each other.

Cow progeny excreta is scientifically recognized as a source of rich organic manure. It enables the

farmers avoiding the use of chemicals and inorganic Page 1380 manure. This helps in improving the

quality of earth and the environment. The impugned enactment enables the State in its endeavour

to protect and improve the environment within the meaning of Article 48A of the Constitution.

By enacting Clause (g) in Article 51-A and giving it the status of a fundamental duty, one of the

objects sought to be achieved by the Parliament is to ensure that the spirit and message of Articles

48 and 48A is honoured as a fundamental duty of every citizen. The Parliament availed the

opportunity provided by the Constitution (Forty-second Amendment) Act, 1976 to improve the

manifestation of objects contained in Article 48 and 48-A. While Article 48-A speaks of

"environment", Article 51-A(g) employs the expression "the natural environment" and includes

therein "forests, lakes, rivers and wild life". While Article 48 provides for "cows and calves and other

milch and draught cattle", Article 51-A(g) enjoins it as a fundamental duty of every citizen "to have

compassion for living creatures", which in its wider fold embraces the category of cattle spoken of

specifically in Article 48.

In AIIMS Students' Union v. AIIMS and Ors., (2002) 1 SCC 428, a three-Judge Bench of this Court

made it clear that fundamental duties, though not enforceable by writ of the court, yet provide

valuable guidance and aid to interpretation and resolution of constitutional and legal issues. In case

of doubt, peoples' wish as expressed through Article 51-A can serve as a guide not only for resolving

the issue but also for constructing or moulding the relief to be given by the courts. The fundamental

duties must be given their full meaning as expected by the enactment of the Forty-second

Amendment. The Court further held that the State is, in a sense, 'all the citizens placed together'

and, therefore, though Article 51A does not expressly cast any fundamental duty on the State, the

fact remains that the duty of every citizen of India is, collectively speaking, the duty of the State.

In Mohan Kumar Singhania and Ors. v. Union of India and Ors., 1992 Supp (1) SCC 594, a

governmental decision to give utmost importance to the training programme of the Indian

Administrative Service selectees was upheld by deriving support from Article 51-A(j) of the

Constitution, holding that the governmental decision was in consonance with one of the

fundamental duties.

In State of U.P. v. Yamuna Shanker Misra and Ors., this Court interpreted the object of writing the

confidentientries in the character rolls by deriving support from Article 51-A(j) which enjoins upon

every citizen the primary duty to constantly endeavour to strive towards excellence, individually and

collectively.

In Rural Litigation and Entitlement Kendra and Ors. v. State of Uttar Pradesh and Ors., 1986 (Supp)

SCC 517, a complete ban and closing of mining operations carried on in the Mussoorie hills was held

to be sustainable by deriving support from the fundamental duty as enshrined in Article 51-A(g) of

the Page 1381 Constitution. The Court held that preservation of the environment and keeping the

ecological balance unaffected is a task which not only Governments but also every citizen must

undertake. It is a social obligation of the State as well as of the individuals.

In T.N. Godavarman Thirumalpad v. Union of India and Ors., a three-Judge Bench of this Court read

Article 48-A and Article 51-A together as laying down the foundation for a jurisprudence of

environmental protection and held that "Today, the State and the citizens are under a fundamental

obligation to protect and improve the environment, including forests, lakes, rivers, wild life and to

have compassion for living creatures".

In State of W.B. and Ors. v. Sujit Kumar Rana, Articles 48 and 51-A(g) of the Constitution were read

together and this Court expressed that these provisions have to be kept in mind while interpreting

statutory provisions.

25. It is thus clear that faced with the question of testing the constitutional validity of any statutory

provision or an executive act, or for testing the reasonableness of any restriction cast by law on the

exercise of any fundamental right by way of regulation, control or prohibition, the Directive

Principles of State Policy and Fundamental Duties as enshrined in Article 51-A of the Constitution

play a significant role. The decision in Quareshi-I in which the relevant provisions of the three

impugned legislations was struck down on the singular ground of lack of reasonability, would have

decided otherwise if only Article 48 was assigned its full and correct meaning and due weightage was

given thereto and Articles 48-A and 51-A(g) were available in the body of the Constitution.

Question - 3 : Milch and draught cattle, meaning of, in Article 48

26. Article 48 employs the expression 'cows and calves and other milch and draught cattle'. What

meaning is to be assigned to the expression 'milch and draught cattle'?

The question is whether when Article 48 precludes slaughter of cows and calves by description, the

words 'milch and draught cattle' are described as a like species which should not be slaughtered or

whether such species are protected only till they are 'milch or draught' and the protection ceases

whenever, they cease to be 'milch or draught', either temporarily or permanently?

According to their inherent genetic qualities, cattle breeds are broadly divided into 3 categories (i)

Milch breed (ii) Draught breed, and (iii) Dual purpose breed. Milch breeds include all cattle breeds

which have an inherent potential for milk production whereas draught breeds have an inherent

potential for draught purposes like pulling, traction of loads etc. The dual purpose breeds have the

potential to perform both the above functions.

Page 1382

The term draught cattle indicates "the act of moving loads by drawing or pulling i.e. pull and traction

etc. Chambers 20th Century Dictionary defines 'draught animal' as 'one used for drawing heavy

loads'.

Cows are milch cattle. Calves become draught or milch cattle on attaining a particular age. Having

specifically spoken of cows and calves, the latter being a cow progeny, the framers of the

Constitution chose not to catalogue the list of other milch and draught cattle and felt satisfied by

employing a general expression "other milch and draught cattle" which in their opinion any reader of

the Constitution would understand in the context of the previous words "cows and calves".

"Milch and draught", the two words have been used as adjectives describing and determining the

quality of the noun 'cattle'. The function of a descriptive or qualitative adjective is to describe the

shape, colour, size, nature or merits or demerits of the noun which they precede and qualify. In a

document like the Constitution, such an adjective cannot be said to have been employed by the

framers of the Constitution for the purpose of describing only a passing feature, characteristic or

quality of the cattle. The object of using these two adjectives is to enable classification of the noun -

'cattle' which follows. Had it been intended otherwise, the framers of the Constitution would have

chosen a different expression or setting of words.

27. No doubt, cow ceases to be 'milch' after attaining a particular age. Yet, cow has been held to be

entitled to protection against slaughter without regard to the fact that it has ceased to be 'milch'.

This constitutional position is well settled. So is the case with calves. Calves have been held entitled

to protection against slaughter without regard to their age and though they are not yet fit to be

employed as 'draught cattle'. Following the same construction of the expression, it can be said that

the words "calves and other milch and draught cattle" have also been used as a matter of

description of a species and not with regard to age. Thus, 'milch and draught' used as adjectives

simply enable the classification or description of cattle by their quality, whether they belong to that

species. This classification is with respect to the inherent qualities of the cattle to perform a

particular type of function and is not dependant on their remaining functional for those purposes by

virtue of the age of the animal. "Milch and draught cattle" is an expression employed in Article 48 of

the Constitution so as to distinguish such cattle from other cattle which are neither milch nor

draught.

Any other meaning assigned to this expression is likely to result in absurdity. A milch cattle goes

through a life cycle during which it is sometimes milch and sometimes it becomes dry. This does not

mean that as soon as a milch cattle ceases to produce milk, for a short period as a part of its life

cycle, it goes out of the purview of Article 48, and can be slaughtered. A draught cattle may lose its

utility on account of injury or sickness and may be rendered useless as a draught cattle during that

period. This would not mean that if a draught cattle ceases to be of utility for a short period on

account of sickness or injury, it is excluded from the definition of 'draught cattle' and deprived of the

benefit of Article 48.

Page 1383

28. This reasoning is further strengthened by Article 51A(g) of the Constitution. The State and every

citizen of India must have compassion for living creatures. Compassion, according to Oxford

Advanced Learners' Dictionary means "a strong feeling of sympathy for those who are suffering and

a desire to help them". According to Chambers 20th Century Dictionary, compassion is "fellow -

feeling, or sorrow for the sufferings of another : pity". Compassion is suggestive of sentiments, a soft

feeling, emotions arising out of sympathy, pity and kindness. The concept of compassion for living

creatures enshrined in Article 51A (g) is based on the background of the rich cultural heritage of

India -the land of Mahatama Gandhi, Vinobha, Mahaveer, Budha, Nanak and others. No religion or

holy book in any part of the world teaches or encourages cruelty. Indian society is a pluralistic

society. It has unity in diversity. The religions, cultures and people may be diverse, yet all speak in

one voice that cruelty to any living creature must be curbed and ceased. A cattle which has served

human beings is entitled to compassion in its old age when it has ceased to be milch or draught and

becomes so-called 'useless'. It will be an act of reprehensible ingratitude to condemn a cattle in its

old age as useless and send it to a slaughter house taking away the little time from its natural life

that it would have lived, forgetting its service for the major part of its life, for which it had remained

milch or draught. We have to remember : the weak and meek need more of protection and

compassion.

29. In our opinion, the expression 'milch or draught cattle' as employed in Article 48 of the

Constitution is a description of a classification or species of cattle as distinct from cattle which by

their nature are not milch or draught and the said words do not include milch or draught cattle,

which on account of age or disability, cease to be functional for those purposes either temporarily or

permanently. The said words take colour from the preceding words "cows or calves". A specie of

cattle which is milch or draught for a number of years during its span of life is to be included within

the said expression. On ceasing to be milch or draught it cannot be pulled out from the category of

"other milch and draught cattle."

Question - 4 : Statement of Objects and Reasons -Significance and Role thereof

30. Reference to the Statement of Objects and Reasons is permissible for understanding the

background, antecedent state of affairs in relation to the statute, and the evil which the statute was

sought to remedy. (See -- Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edition,

2004, at p.218). In State of West Bengal v. Subodh Gopal Bose and Ors., 1954 SCR 587, the

Constitution Bench was testing the constitutional validity of the legislation impugned therein. The

Statement of Objects and Reasons was used by S.R. Das, J. for ascertaining the conditions prevalent

at that time which led to the introduction of the Bill and the extent and urgency of the evil which

was sought to be remedied, in addition to testing the reasonableness of the restrictions imposed by

the impugned provision. In his opinion, it was indeed very unfortunate that the Statement of Objects

and Reasons was not placed before the High Court which would have assisted the High Court in

arriving at the right Page 1384 conclusion as to the reasonableness of the restriction imposed. State

of West Bengal v. Union of India, approved the use of Statement of Objects and Reasons for the

purpose of understanding the background and the antecedent state of affairs leading upto the

legislation.

In Quareshi-I itself, which has been very strongly relied upon by the learned Counsel for the

respondents before us, Chief Justice S.R. Das has held:

"Pronouncements of this Court further establish, amongst other things, that there is always a

presumption in favour of the constitutionality of an enactment and that the burden is upon him,

who attacks it, to show that there has been a clear violation of the constitutional principles. The

courts, it is accepted, must presume that the legislature understands and correctly appreciates the

needs of its own people, that its laws are directed to problems made manifest by experience and

that its discriminations are based on adequate grounds. It must be borne in mind that the legislature

is free to recognise degrees of harm and may confine its restrictions to those cases where the need

is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality

the Court may take into consideration matters of common knowledge, matters of common report,

the history of the times and may assume every state of facts which can be conceived existing at the

time of legislation. (Para 15).

The legislature is the best judge of what is good for the community, by whose suffrage it comes into

existence...". This should be the proper approach for the court but the ultimate responsibility for

determining the validity of the law must rest with the court." (Para 21, also see the several decisions

referred to therein).

(underlining by us)

31. The facts stated in the Preamble and the Statement of Objects and Reasons appended to any

legislation are evidence of legislative judgment. They indicate the thought process of the elected

representatives of the people and their cognizance of the prevalent state of affairs, impelling them

to enact the law. These, therefore, constitute important factors which amongst others will be taken

into consideration by the court in judging the reasonableness of any restriction imposed on the

Fundamental Rights of the individuals. The Court would begin with a presumption of reasonability of

the restriction, more so when the facts stated in the Statement of Objects and Reasons and the

Preamble are taken to be correct and they justify the enactment of law for the purpose sought to be

achieved.

In Sardar Inder Singh v. The State of Rajasthan, 1957 SCR 605, a Constitution Bench was testing the

validity of certain provisions of the Ordinance impugned before and it found it to be repugnant to

Article 14 of the Constitution and hence void. At page 620, Venkatarama Aiyar, J. speaking for the

Constitution Bench referred to the recitals contained in the Preamble to the Ordinance and the

object sought to be achieved by the Ordinance as flowing therefrom and held "that is a matter

exclusively for the legislature to determine, and Page 1385 the propriety of that determination is not

open to question in courts. We should add that the petitioners sought to dispute the correctness of

the recitals in the Preamble. This they cannot clearly do".

Question - 5 : Article 19(1)(g) : 'Regulation' or 'Restriction' includes Total Prohibition; Partial

Restraint is not Total Prohibition

32. Respondents rely on Article 19(1)(g) which deals with the fundamental right to 'practise any

profession or to carry on any occupation, trade or business'. This right is subject to Article 19(6)

which permits reasonable restrictions to be imposed on it in the interests of the general public.

This raises the question of what is the meaning of the word 'restriction'.

33. Three propositions are well settled: (i) 'restriction' includes cases of 'prohibition'; (ii) the

standard for judging reasonability of restriction or restriction amounting to prohibition remains the

same, excepting that a total prohibition must also satisfy the test that a lesser alternative would be

inadequate; and (iii) whether a restriction in effect amounts to a total prohibition is a question of

fact which shall have to be determined with regard to the facts and circumstances of each case, the

ambit of the right and the effect of the restriction upon the exercise of that right. Reference may be

made to Madhya Bharat Cotton Association Ltd. v. Union of India (UOI) and Anr., Krishna Kumar v.

Municipal Committee of Bhatapara, (Petition No. 660 of 1954 decided on 21st February 1957 by

Constitution Bench) (See -- Compilation of Supreme Court Judgments, 1957 Jan-May page 33,

available in Supreme Court Judges Library), Narendra Kumar and Ors. v. Union of India (UOI) and

Ors., The State of Maharashtra v. Himmatbhai Narbheram Rao and Ors.,

Sushila Saw Mill v. State of Orissa and Ors., Pratap Pharma (Pvt.) Ltd. and Anr. v. Union of India and

Ors., and Dharam Dutt v. Union of India,

In Madhya Bharat Cotton Association Ltd. (supra) a large section of traders were completely

prohibited from carrying on their normal trade in forward contacts. The restriction was held to be

reasonable as cotton, being a commodity essential to the life of the community, and therefore such

a total prohibition was held to be permissible. In Himmatbhai Narbheram Rao and Ors. (supra) trade

in hides was completely prohibited and the owners of dead animals were required to compulsorily

deposit carcasses in an appointed Page 1386 place without selling it. The constitutionality of such

prohibition, though depriving the owner of his property, was upheld. The court also held that while

striking a balance between rights of individuals and rights of citizenry as a whole the financial loss

caused to individuals becomes insignificant if it serves the larger public interest. In Sushila Saw Mill

(supra), the impugned enactment imposed a total ban on saw mill business or sawing operations

within reserved or protected forests. The ban was held to be justified as it was in public interest to

which the individual interest must yield. Similar view is taken in the other cases referred to

hereinabove.

In Krishna Kumar (supra), the Constitution Bench held that when the prohibition is only with respect

to the exercise of the right referable only in a particular area of activity or relating to a particular

matter, there was no total prohibition. In that case, the Constitution Bench was dealing with the

case of Adatiyas operating in a market area. A certain field of activity was taken away from them,

but they were yet allowed to function as Adatiyas. It was held that this amounts to a restriction on

the exercise of writ petitioners' occupation as an Adatiya or a seller of grain but does not amount to

a total ban.

34. In the present case, we find the issue relates to a total prohibition imposed on the slaughter of

cow and her progeny. The ban is total with regard to the slaughter of one particular class of cattle.

The ban is not on the total activity of butchers (kasais); they are left free to slaughter cattle other

than those specified in the Act. It is not that the writ petitioner-respondents survive only by

slaughtering cow progeny. They can slaughter animals other than cow progeny and carry on their

business activity. In so far as trade in hides, skins and other allied things (which are derived from the

body of dead animal) are concerned, it is not necessary that the animal must be slaughtered to avail

these things. The animal, whose slaughter has been prohibited, would die a natural death even

otherwise and in that case their hides, skins and other parts of body would be available for trade and

industrial activity based thereon.

We hold that though it is permissible to place a total ban amounting to prohibition on any

profession, occupation, trade or business subject to satisfying the test of being reasonable in the

interest of the general public, yet, in the present case banning slaughter of cow progeny is not a

prohibition but only a restriction.

35. Question - 6 : Slaughter of cow progeny, if in public interest

As we have already indicated, the opinion formed by the Constitution Bench of this Court in

Quareshi-I is that the restriction amounting to total prohibition on slaughter of bulls and bullocks

was unreasonable and was not in public interest. We, therefore, proceed to examine the evidence

available on record which would enable us to answer questions with regard to the 'reasonability' of

the imposed restriction qua 'public interest'.

Page 1387

The facts contained in the Preamble and the Statement of Objects and Reasons in the impugned

enactment highlight the following facts:

(i) it is established that cow and her progeny sustain the health of the nation;

(ii) the working bullocks are indispensable for our agriculture for they supply power more than any

other animal (the activities for which the bullocks are usefully employed are also set out);

(iii) the dung of the animal is cheaper than the artificial manures and extremely useful of production

of biogas;

(iv) it is established that the backbone of Indian agriculture is the cow and her progeny and they

have on their back the whole structure of the Indian agriculture and its economic system;

(v) the economy of the State of Gujarat is still predominantly agricultural. In the agricultural sector

use of animals for milch, draught, breeding or agricultural purposes has great importance.

Preservation and protection of agricultural animals like bulls and bullocks needs emphasis. With the

growing adoption of non-conventional energy sources like biogas plants, even waste material have

come to assume considerable value. After the cattle cease to breed or are too old to work, they still

continue to give dung for fuel, manure and biogas and, therefore, they cannot be said to be useless.

Apart from the fact that we have to assume the above-stated facts as to be correct, there is also

voluminous evidence available on record to support the above said facts. We proceed to notice few

such documents.

Affidavits

36. Shri J.S. Parikh, Deputy Secretary, Agriculture Cooperative and Rural Development, Department,

State of Gujarat, filed three affidavits in the High Court of Gujarat in Special Civil Application No.

9991 of 1993. The first affidavit was filed on 20th October, 1993, wherein the following facts are

discernible and mentioned as under:

(i) With the improved scientific animal husbandry services in the State, the average longivity of

animals has considerably increased. In the year 1960, there were only 456 veterinary dispensaries

and first aid veterinary centers etc, whereas in the year 1993, there are 946 veterinary dispensaries

and first aid veterinary centers etc. There were no mobile veterinary dispensaries in 1960 while

there are 31 mobile veterinary dispensaries in the State in 1993. In addition, there are around 467

centres for intensive cattle development where besides first aid veterinary treatment, other animal

husbandry inputs of breeding, food or development etc. are also provided. In the year 1960, five

lakh catties were vaccinated whereas in the year 1992-93 around 200 lakh animals are vaccinated to

provide life saving protection against various fatal diseases. There were no cattle food compounding

units preparing cattle food in the year 1960, while in the year 1993 there are ten cattle food factory

producing 1545 MT of cattle food per day. As a result of improved animal husbandry services, highly

contagious and fatal disease of Rinder Pest is controlled in the state and that the deadly disease has

not appeared in the last three years.

Page 1388

(ii) Because of various scientific technologies namely, proper cattle feeding, better medical and

animal husbandry services, the longevity of the cattle in the State has considerably increased.

(iii) The population of bullock is 27.59 lakhs. Over and above agricultural work, bullocks are useful for

other purposes also. They produce dung which is the best organic measure and is cheaper than

chemical manure. It is also useful for production of bio-gas.

(iv) It is estimated that daily production of manure by bullocks is about 27,300 tonnes and bio-gas

production daily is about 13.60 cubic metres. It is also estimated that the production of bio-gas from

bullock dung fulfil the daily requirement of 54.78 lakh persons of the State if whole dung production

is utilized. At present, 1,91,467 bio-gas plants are in function in the State and about 3-4 lakhs

persons are using bio-gas in the State produced by these plants.

(v) The population of farmers in the State is 31.45 lakhs. Out of which 7.37 lakhs are small farmers, 8

lakhs are marginal farmers, 3.05 lakhs are agricultural labourers and 13.03 lakhs are other farmers.

The total land of Gujarat State is 196 lakh hectares and land under cultivation is 104.5 lakh hectares.

There are 47,800 tractors by which 19.12 lakh hectares land is cultivated and the remaining 85.38

lakh hectares land is cultivated by using bullocks. It may be mentioned here that all the agricultural

operations are not done using tractors. The bullocks are required for some of agricultural operations

along with tractors. There are about 7,28,300 bullock carts and there are about 18,35,000 ploughs

run by bullocks in the State.

(vi) The figure of slaughter of animals done in 38 recognised slaughter houses are as under:

Year Bullock/Bull Buffalo Sheep Goat

1990-91 9,558 41,088 1,82,269 2,22,507

1991-92 9,751 41,882 2,11,245 2,20,518

1992-93 8,324 40,034 1,13,868 1,72,791

The above figures show that the slaughter of bullocks above the age of 16 years is done in the State

in very small number. The animals other than bullocks are slaughtered in large number. Hence, the

ban on the slaughter of cow and cow progeny will not affect the business of meat production

significantly. Therefore, the persons engaged in this profession will not be affected adversely.

Thereafter two further affidavits were filed by Shri J.S. Parikh, abovesaid, on 17th March, 1998,

wherein the following facts are mentioned :

(i) there are about 31.45 lakhs land holders in Gujarat. The detailed classifications of the land holders

are as under:

Sl. Details of land No. of land

No. holders holders

1. 01 hectare 8.00 lakhs

2. 1-2 hectares 7.37 lakhs

3. 2 and above 16.08 lakhs

Page 1389

(ii) almost 50 per cent of the land holdings are less than 2 hectares; tractor keeping is not affordable

to small farmers. For economic maintenance of tractors, one should have large holding of land. Such

land holders are only around 10 per cent of the total land holders. Hence the farmers with small land

holdings require bullocks as motive power for their agricultural operations and transport;

(iii) the total cultivable land area of Gujarat State is about 124 lakh hectares. Considering that a pair

of bullocks is required for ploughing 10 acres of land the bullock requirement for ploughing purpose

alone is 5.481 million and approximately equal number is required for carting. According to the

livestock census 1988 of Gujarat State, the availability of indigenous bullocks is around 2.84 millions.

Thus the availability of bullocks as a whole on percentage of requirement works out to be about 25

per cent. In this situation, the State has to preserve each single bull and bullock that is available to it;

(iv) it is estimated that bull or bullock at every stage of life supplies 3,500 kgs of dung and 2,000 litres

of urine and whereas this quantity of dung can supply 5,000 cubic feet of biogas, 80 M.T. of organic

fertilizer, the urine can supply 2,000 litres of pesticides and the use of these products in farming

increases the yield very substantially. The value of above contribution can be placed at Rs. 20,000/-

per year to the owner;

(v) since production of various agricultural crops removes plant nutrients from the soil, they must be

replenished with manures to maintain and improve fertility of soil. There are two types of manures

which are (i) Organic manures, i.e. natural manures and (ii) Artificial or chemical fertilizer. Amongst

the organic manures, farm yard manures is the most valuable organic manure applied to soil. It is the

most commonly used organic manure in India. It consists of a mixture of cattle dung, the bedding

used in the stable. Its crop increasing value has been recognized from time immemorial (Ref. Hand

Book of Agriculture, 1987 by ICAR page 214);

(vi) the importance of organic manure as a source of humus and plant nutrients to increase the

fertility level of soils has been well recognised. The organic matter content of cultivated soils of the

tropics and sub-tropics is comparatively low due to high temperature and intense microbial activity.

The crops remove annually large quantity of plant nutrients from soil. Moreover, Indian soils are

poor in organic matter and in major plant nutrients. Therefore, soil humus has to be replenished

through periodic addition of organic manure for maintaining soil productivity;

(vii) animals are the source of free availability of farmyard manure, which has all the three elements,

i.e. Nitrogen, Phosphoric acid and Potash, needed in fertilizer and at the same time which preserve

and enrich the fertility of the soil. In paucity of dung availability, the farmers have to depend upon

chemical fertilizers. Investment in chemical fertilizers imposes heavy burden upon the economy. If

there is availability of alternate source of organic manure from animals, it is required to be

promoted;

(viii) the recent scenario of ultramodern technology of super ovulation, embryo transfer and cloning

technique will be of very much use to propagate Page 1390 further even from the incapable or even

old animals which are not capable of working or reproducing. These animals on a large scale can be

used for research programmes as well as for production of non-conventional energy sources such as

biogas and natural fertilizers. At present, there are 19,362 biogas plants installed in the State during

1995-97. On an average, each adult cattle produces 4.00 kg. of dung per day. Out of the total cattle

strength of (1992 Census) 67,85,865, the estimated dung produced is 99,07,363 tonnes;

(ix) India has 74% of rural population, and in Gujarat out of 4.13 crores of human population, there

are 1.40 crores of workers which comprises of 47,04,000 farmers and 32,31,000 workers are workers

related to livestock and forestry. In Gujarat, there are 9.24 lakhs marginal farmers and 9.15 lakhs of

small farmers, according to the 1991-92 census. Animals are reared in few numbers per family and

the feed is obtained from the supplementary crop on fodder/agricultural by-products or from

grazing in the gaucher land. In Gujarat 8.48 lakh hectares of land is available as permanent pasture

and grazing land. An individual cattle-owner does not consider one or two bullocks as an extra

burden for his family, even when it is incapable of work or production. Sometimes the unproductive

animals are sent to Panjarapoles and Gosadans. In Gujarat, there are 335 Gaushalas and 174

Panjarapoles which are run by non-governmental oranizations and trusts. Formerly farmers mostly

kept few animals and, in fact, they are treated as part of their family and maintained till death. It

cannot be treated to be a liability upon them or burden on the economy;

(x) butchers are doing their business since generations, but they are not doing only the slaughter of

cow class of animals. They slaughter and trade the meat of other animals like buffaloes, sheep,

goats, pig and even poultry. In Gujarat there are only 38 registered slaughter houses functioning

under various Municipalities/Nagar Panchayats. Beef (meat of cattle) contributes only 1.3% of the

total meat groups. Proportion of demand for beef is less in the context of demand for pig, mutton

and poultry meat. Slaughtering of bulls and bullocks for the period between 1990-91 and 1993-94

was on an average 9,000;

(xi) number of bullocks have decreased in a decade from 30,70,339 to 28,93,227 as in 1992. A

statement showing the amount of dung production for the year 1983-84 to 1996-97 and a statement

showing the nature of economy of the State of Gujarat is annexed. The number of bullocks

slaughtered per day is negligible compared to other animals, and the business and/or trade of

slaughtering bullocks would not affect the business of butchers. By prohibiting slaughter of bullocks

the economy is likely to be benefited.

The three affidavits are supported by documents, statements or tables setting out statistics which

we have no reason to disbelieve. Neither the High Court has expressed any doubt on the contents of

the affidavit nor has the veracity of the affidavits and correctness of the facts stated therein been

challenged by the learned Counsel for the respondents before us.

Page 1391

37. In this Court Shri D.P. Amin, Joint Director of Animal Husbandry, Gujarat State, has filed an

affidavit. The salient facts stated therein are set out hereunder:

(i) The details of various categories of animals slaughtered since 1997-1998 shows that slaughter of

various categories of animals in regulated slaughter houses of Gujarat State has shown a

tremendous decline. During the year way back in 1982-83 to 1996-97 the average number of animals

slaughtered in regulated slaughter houses was 4,39,141. As against that (previous figure) average

number of slaughter of animals in recent 8 years i.e. from 1997-98 to 2004-05 has come down to

only 2,88,084. This clearly indicates that there has been a vast change in the meat eating style of

people of Gujarat State. It is because of the awareness created among the public due to the threats

of dangerous diseases like Bovine Spongiform Encephalopathy commonly known as "Mad Cow

disease" B.S.E. which is a fatal disease of cattle meat origin not reported in India. Even at global level

people have stopped eating the beef which is known as meat of cattle class animals. This has even

affected the trade of meat particularly beef in the America & European countries since last 15 years.

Therefore, there is international ban on export-import of beef from England, America & European

countries;

(ii) there is reduction in slaughter of bulls & bullocks above the age of 16 years reported in the

regulated slaughter houses of Gujarat State. As reported in the years from 1982-83 to 1996-97, the

slaughter of bulls & bullocks above the age of 16 years was only 2.48% of the total animals of

different categories slaughtered in the State. This percentage has gone down to the level of only

1.10% during last 8 years i.e. 1997-98 to 2004-05 which is very less significant to cause or affect the

business of butcher communities;

(iii) India is predominantly agrarian society with nearly 3/4th of her population living in seven lakh

rural hamlets and villages, possesses small fragmentary holding (54.6% below 1 hectare 18% with 1-

2 hectares). Draft/pack animal contributes more than 5 crores horse power (H.P.) or 33,000

megawatt electric power and shares for/in 68% of agricultural operations, transport & other draft

operations. In addition to draft power, 100 million tonnes dung per year improves the soil health

and also used as raw material for biogas plant;

(iv) the cattle population in Gujarat in relation to human population has declined from 315 per 1000

humans in 1961 to 146 per 1,000 humans in 2001 indicating decline in real terms;

(v) in Gujarat 3.28 million draft animal (bullocks 85%) have multifaceted utilities viz. agricultural

operations like ploughing, sowing, hoeing, planking, carting, hauling, water lifting, grinding, etc.;

Gujarat State has a very rich cattle population of Kankrej & Gir breed, of which Kankrej bullocks are

very well known for its draft power called "Savai Chal";

(vi) considering the utility of aged bullocks above 16 years as draft power a detailed combined study

was carried out by Department of Animal Page 1392 Husbandry and Gujarat Agricultural University

(Veterinary Colleges S.K. Nagar & Anand). The experiments were carried out within the age group of

16 to 25 years. The study covered different age groups of 156 (78 pairs) bullocks above the age of 16

years. The aged bullocks i.e. above 16 years age generated 0.68 horse power draft output per

bullock while the prime bullock generated 0.83 horse power per bullock during carting/hauling draft

work in a summer with about more than 42�C temp. The study proves that 93% of aged bullock

above 16 years of age are still useful to farmers to perform light & medium draft works. The detailed

report is on record;

(vii) by the end of year 2004-05 under the Dept. of Animal Husbandry, there are 14 Veterinary

Polyclinics, 515 Vety. Dispensaries, 552 First Aid Vety. Centres and 795 Intensive Cattle Development

Project Sub Centers. In all, 1876 institutions were made functional to cater various health care

activities to livestock population of State of Gujarat. About two crores of livestock and poultry were

vaccinated against various diseases. As a result, the total reported out break of infectious diseases

was brought down to around 106 as against 222 in 1992-1993. This shows that State has created a

healthy livestock and specifically the longevity of animals has been increased. This has also resulted

into the increased milk production of the state, draft power and source of non-conventional energy

in terms of increased quantity of dung and urine;

(viii) the value of dung is much more than even the famous "Kohinoor" diamond. An old bullock

gives 5 tonnes of dung and 343 pounds of urine in a year which can help in the manufacture of 20

carts load of composed manure. This would be sufficient for manure need of 4 acres of land for crop

production. The right to life is a fundamental right and it can be basically protected only with proper

food and feeding and cheap and nutritious food grains required for feeding can be grown with the

help of dung. Thus the most fundamental thing to the fundamental right of living for the human

being is bovine dung. (Ref. Report of National Commission on Cattle, Vol.III, Page 1063-1064);

(ix) the dung cake as well as meat of bullock are both commercial commodities. If one bullock is

slaughtered for its meat (Slaughtering activity) can sustain the butchers trade for only a day. For the

next day's trade another bullock is to be slaughtered. But if the bullock is not slaughtered, about

5000-6000 dung cakes can be made out of its dung per year, and by the sale of such dung cake one

person can be sustained for the whole year. If a bullock survives even for five years after becoming

otherwise useless it can provide employment to a person for five years whereas to a butcher, bullock

can provide employment only for a day or two.

(x) Even utility of urine has a great role in the field of pharmaceuticals as well as in the

manufacturing of pesticides. The Goseva Ayog, Govt. of Gujarat had commissioned study for "Testing

insecticides properties of cow urine against various insect pests". The study was carried out by Dr.

G.M. Patel, Principal Investigator, Department of Entomology, C.P. College of Agriculture, S.D.

Agricultural University, Sardar Krishi Nagar, Gujarat. Page 1393 The study has established that

insecticides formulations prepared using cow urine emerged as the most reliable treatment for their

effectiveness against sucking pest of cotton. The conclusion of study is dung & urine of even aged

bullocks are also useful and have proved major effect of role in the Indian economy;

(xi) it is stated that availability of fodder is not a problem in the State or anywhere. During drought

period deficit is compensated by grass-bank, silo and purchase of fodder from other States as last

resources. The sugarcane tops, leaves of banana, baggase, wheat bhoosa and industrial byproducts

etc. are available in plenty. A copy of the letter dated 8.3.2004 indicting sufficient fodder for the year

2004, addressed to Deputy Commissioner, Animal Husbandry Government of India is annexed.

Report on draughtability of bullocks above 16 years of age

38. On 20th June, 2001 the State of Gujarat filed I.A. No. 2/2001 in Civil Appeal Nos. 4937-4940 of

1998, duly supported by an affidavit sworn by Shri D.U. Parmar, Deputy Secretary (Animal

Husbandry) Agriculture and Cooperation Department, Government of Gujarat, annexing therewith a

report on draughtability of aged bullocks above 16 years of age under field conditions. The study was

conducted by the Gujarat Agricultural University Veterinary College, Anand and the Department of

Animal Husbandry, Gujarat State, Ahmedabad. The study was planned with two objectives:

(i) To study the draughtability and utility of aged bullocks above 16 years of age; and

(ii) To compare the draughtability of aged bullocks with bullocks of prime age.

39. Empirical research was carried out under field conditions in North Gujarat Region (described as

Zone-I) and Saurashtra region (described as Zone-II). The average age of aged bullocks under the

study was 18.75 years. The number of bullocks/pair used under the study were sufficient to draw

sound conclusions from the study. The gist of the findings arrived at, is summed up as under:

1. Farmer's persuasion

The aged bullocks were utilized for different purposes like agricultural operations (ploughing,

planking, harrowing, hoeing, threshing) and transport-hauling of agricultural produce, feeds and

fodders of animals, drinking water, construction materials (bricks, stones, sand grits etc.) and for

sugarcane crushing/ khandsari making. On an average the bullocks were yoked for 3 to 6 hours per

working day and 100 to 150 working days per year. Under Indian conditions the reported values for

working days per year ranges from 50 to 100 bullock paired days by small, medium and large

farmers. Thus, the agricultural operations-draft output are still being taken up from the aged

bullocks by the farmers. The farmers feed concentrates, green fodders and dry fodders to these

aged bullocks and maintain the health of these animals considering them an important segment of

their families. Farmers love their bullocks.

Page 1394

2. Age, body measurement and body weight

The biometric and body weight of aged bullocks were within the normal range.

3. Horsepower generation/Work output

The aged bullocks on an average generated 0.68 hp/bullock, i.e. 18.1% less than the prime/young

bullocks (0.83 hp/bullock). The aged bullocks walked comfortably with an average stride length of

1.43 meter and at the average speed of 4.49 km/hr. showing little less than young bullocks.

However, these values were normal for the aged bullocks performing light/medium work of carting.

These values were slightly lower than those observed in case of prime or young bullocks. This clearly

indicates that the aged bullocks above 16 years of age proved their work efficiency for both light as

well as medium work in spite of the age bar. In addition to this, the experiment was conducted

during the months of May-June, 2000 - a stressful summer season. Therefore, these bullocks could

definitely generate more work output during winter, being a comfortable season. The aged bullock

above 16 years of age performed satisfactorily and disproved that they are unfit for any type of draft

output i.e. either agricultural operations, carting or other works.

4. Physiological responses and haemoglobin concentration

These aged bullocks are fit to work for 6 hours (morning 3 hours + afternoon 3 hrs.) per day. Average

Hb content (g%) at the start of work was observed to be 10.72 g% and after 3 hours of work

11.14g%, indicating the healthy state of bullocks. The increment in the haemoglobin content after 3

to 4 hours of work was also within the normal range and in accordance with prime bullocks under

study as well as the reported values for working bullocks.

5. Distress symptoms

In the initial one hour of work, 6 bullocks (3.8%) showed panting, while 32.7% after one hour of

work. After 2 hour of work, 28.2% of bullocks exhibited salivation. Only 6.4% of the bullocks sat

down/lied down and were reluctant to work after completing 2 hours of the work. The results are

indicative of the fact that majority of the aged bullocks (93%) worked normally. Summer being a

stressful season, the aged bullocks exhibited distress symptoms earlier than the prime/young

bullocks. However, they maintained their physiological responses within normal range and

generated satisfactory draft power.

The study report submitted its conclusions as under:

"1. The aged bullocks above 16 years of age generated 0.68 horse power draft output per bullock

while the prime bullocks generated 0.83 horsepower per bullock during carting-hauling draft work.

2. The aged bullocks worked satisfactorily for the light work for continuous 4 hours during morning

session and total 6 hours per day (morning 3 hours and afternoon 3 hours) for medium work.

Page 1395

3. The physiological responses (Rectal temperature, Respiration rate and Pulse rate) and

haemoglobin of aged bullocks were within the normal range and also maintained the incremental

range during work. However, they exhibited the distress symptoms earlier as compared to prime

bullocks.

4. Seven percent aged bullocks under study were reluctant to work and/or lied down after 2 hours of

work.

5. The aged bullocks were utilized by the farmers to perform agricultural operations (ploughing,

sowing, harrowing, planking, threshing), transport-hauling of agricultural product, feeds and fodders,

construction materials and drinking water.

40. Finally, it proves that majority (93%) of the aged bullocks above 16 years of age are still useful to

farmers to perform light and medium draft works."

41. With the report, the study group annexed album/photographs and cassettes prepared while

carrying out the study. Several tables and statements setting out relevant statistics formed part of

the report. A list of 16 authentic references originating from eminent authors on the subject under

study which were referred to by the study group was appended to the report.

This application (I.A. No. 2/2001) was allowed and the affidavit taken on record vide order dated

20.8.2001 passed by this Court. No response has been filed by any of the respondents controverting

the facts stated in the affidavit and the accompanying report. We have no reason to doubt the

correctness of the facts stated therein; more so, when it is supported by the affidavit of a

responsible officer of the State Government.

42. Tenth Five Year Plan (2002-2007) Documents

In the report of the Working Group on Animal Husbandry and Dairy Farming, the Tenth Five Year

Plan (2002-2007) dealing with 'the draught breed relevance and improvement', published by the

Government of India, Planning Commission in January, 2001, facts are stated in great detail pointing

out the relevance of draught breeds and setting out options for improvement from the point of view

of the Indian Economy. We extract and reproduce a few of the facts therefrom:

"3.6.12 Relevance of draught breeds and options for improvement

3.6.12.1 In India 83.4 million holdings (78%) are less than 2 ha. where tractors and tillers are

uneconomical and the use of animal power becomes inevitable since tractors and tillers are viable

only for holdings above 5 ha.. In slushy and water logged fields tractor tiller is not suitable. In narrow

terraced fields and hilly regions tractors cannot function. Animal drawn vehicle are suitable for rural

areas under certain circumstances/conditions viz., uneven terrain, small loads (less than 3 tons),

short distances and where time of loading and unloading is more than travel time or time is not a

critical factor and number of collection points/distribution points are large as in case of milk,

vegetable, water, oil, etc. In India the energy for ploughing two-thirds of the cultivated area comes

from animal power and animal drawn vehicles haul two-thirds of rural transport.

Page 1396

3.6.12.2 The role of cattle as the main source of motive power for agriculture and certain allied

operations would continue to remain as important as meeting the requirement of milk in the

country. It has been estimated that about 80 million bullocks will be needed. There is, therefore, a

need for improving the working efficiency of the bullocks through improved breeding and feeding

practices.

3.6.13 Development of Draught Breeds

Focused attention to draft breed will not be possible unless a new scheme is formulated for this

purpose.

3.6.13.2 In tracts where there are specialized draught breeds of cattle like Nagori in Rajasthan,

Amritmahal and Hallikar in Karnataka, Khillar in Maharashtra etc., selection for improvement in

draughtability should be undertaken on a large scale as the cattle breeders in these areas derive a

large income by sale of good quality bullocks. Planned efforts should be made for improving the

draught capacity and promoting greater uniformity in the type of the cattle population in the

breeding tracts. There is need to intensify investigations to develop yardsticks for objective

assessment of draught capacity of bullocks.

3.6.14 Supplementation of fund-flow for cattle and Buffalo development.

3.6.14.2 A number of organizations like NABARD, NDDB, NCDC etc. are also likely to be interested in

funding activities relating to cattle and buffalo development in the form of term as loan provided

timely return is ensured. Time has now come for exploring such avenues seriously at least on pilot

basis in selected areas, where better prospects of recovery of cost of breeding inputs and services

exists."

Recognising the fact that the cow and its progeny has a significant role to play in the agricultural and

rural economy of the country, the Government felt that it was necessary to formulate measures for

their development in all possible ways. In view of the persistent demands for action to be taken to

prevent their slaughter, the Government also felt and expressed the need to review the relevant

laws of the land relating to protection, preservation, development and well-being of cattle and to

take measures to secure the cattle wealth of India.

43. Yet another document to which we are inclined to make a reference is Mid-Term Appraisal of

10th Five Year Plan (2002-2007) released in June, 2005 by the Government of India (Planning

Commission). Vide para 5.80 the report recommends that efforts should be made to increase the

growth of bio-pesticides production from 2.5 to 5 per cent over the next five years.

According to the report, Organic farming is a way of farming which excludes the use of chemical

fertilizers, insecticides, etc. and is primarily based on the principles of use of natural organic inputs

and biological plant protection measures.

Properly managed organic farming reduces or eliminates water pollution and helps conserve water

and soil on the farm and thereby enhances sustainability and agro-biodiversity.

Page 1397

Organic farming has become popular in many western countries. There are two major driving forces

behind this phenomenon; growing global market for organic agricultural produce due to increased

health consciousness; and the premium price of organic produce fetched by the producers.

India has a comparative advantage over many other countries.

The Appraisal Report acknowledged the commencement of the biogas programme in India since

1981-82. Some 35,24,000 household plants have been installed against an assessed potential of

120,00,000 units.

44. Biogas has traditionally been produced in India from cow dung (gobar gas). However, dung is not

adequately and equitably available in villages. Technologies have now been developed for using

tree-based organic substrates such as leaf litter, seed starch, seed cakes, vegetable wastes, kitchen

wastes etc. for production of biogas. Besides cooking, biogas can also be used to produce electricity

in dual fired diesel engines or in hundred per cent gas engines. Ministry of Non-conventional Energy

Sources (MNES) is taking initiatives to integrate biogas programme in its Village Energy Security

Program (VESP).

Production of pesticides and biogas depend on the availability of cow-dung.

National Commission on Cattle

45. Vide its Resolution dated 2nd August, 2001, the Government of India established a National

Commission on Cattle, comprising of 17 members.

The Commission was given the follow terms of reference:

a. To review the relevant laws of the land(Centre as well as States) which relate to protection,

preservation, development and well being of cow and its progeny and suggest measures for their

effective implementation,

b. To study the existing provisions for the maintenance of Goshalas, Gosadans, Pinjarapoles and

other organisations working for protection and development of cattle and suggest measures for

making them economically viable,

c. To study the contribution of cattle towards the Indian economy and to suggest ways and means of

organising scientific research for maximum utilisation of cattle products and draught animal power

in the field of nutrition and health, agriculture and energy, and to submit a comprehensive scheme

in this regard to the Central Government,

d. To review and suggest measures to improve the availability of feed and fodder to support the

cattle population.

The Committee after extensive research has given a list of recommendations. A few of them relevant

in the present case are:

"1. The Prohibition for slaughter of cow and its progeny, which would include bull, bullocks, etc.,

should be included in Fundamental Rights or as a Constitutional Mandate anywhere else, as an

Article of Constitution. It should not be kept only in the Directive Principles or/Fundamental duties

as neither of these are enforceable by the courts.

Page 1398

2. The amendment of the Constitution should also be made for empowering the Parliament to make

a Central Law for the prohibition of slaughter of cow and its progeny and further for prohibition of

their transport from one State to another.

3. The Parliament should then make a Central law, applicable to all States, prohibiting slaughter of

cow and its progeny. Violation of the Law should be made a non-bailable and cognizable offence.

xxx�� xxx�� xxx

14. The use and production of chemical fertilizers and chemical pesticides should be discouraged,

subsidies on these items should be reduced or abolished altogether. The use of organic manure

should be subsidized and promoted."

Thus the Commission is of the view that there should be a complete prohibition on slaughter of cow

progeny.

46. Importance of Bovine Dung

The Report of the National Commission on Cattle, ibid, refers to an authority namely, Shri Vasu in

several sub-paragraphs of para 12. Shri Vasu has highlighted the unique and essential role of bovine

and bovine dung in our economy and has pleaded that slaughter of our precious animals should be

stopped. He has in extenso dealt with several uses of dung and its significance from the point of view

of Indian society. Dung is a cheap and harmless fertilizer in absence whereof the farmers are forced

to use costly and harmful chemical fertilizers. Dung also has medicinal value in Ayurved, the Indian

system of medicines.

Continuing Utility of Cattle : Even if the utility argument of the Quareshi's judgment is accepted, it

cannot be accepted that bulls and bullocks become useless after the age of 16. It has to be said that

bulls and bullocks are not useless to the society because till the end of their lives they yield excreta

in the form of urine and dung which are both extremely useful for production of bio-gas and

manure. Even after their death, they supply hide and other accessories. Therefore, to call them

'useless' is totally devoid of reality. If the expenditure on their maintenance is compared to the

return which they give, at the most, it can be said that they become 'less useful'. (Report of the

National Commission on Cattle, July 2002, Volume I, p. 279.)

47. The Report of the National Commission on Cattle has analyzed the economic viability of cows

after they stopped yielding milk and it also came to the conclusion that it shall not be correct to call

such cows 'useless cattle' as they still continue to have a great deal of utility. Similar is the case with

other cattle as well.

"37. Economic aspects:

37.1 The cows are slaughtered in India because the owner of the cow finds it difficult to maintain her

after she stops yielding milk. This is because it is generally believed that milk is the only commodity

obtained from cows, which is useful and can be sold in exchange of cash. This notion is totally wrong.

Cow yields products other than milk, which are valuable and Page 1399 saleable. Thus the dung as

well as the urine of cow can be put to use by owner himself or sold to persons or organizations to

process them. The Commission noticed that there are a good number of organizations (goshalas)

which keep the cows rescued while being carried to slaughter houses. Very few of such cows are

milk yielding. Such organizations use the urine and dung produced by these cows to prepare Vermi-

compost or any other form of bio manure and urine for preparing pest repellents. The money

collected by the sale of such products is normally sufficient to allow maintenance of the cows. In

some cases, the urine and dung is used to prepare the medical formulations also. The organizations,

which are engaged in such activities, are making profits also.

37.2 Commission examined the balance sheet of some such organizations. The expenditure and

income of one such organization is displayed here. In order to make accounts simple the amounts

are calculated as average per cow per day.

It is obvious that expenditure per cow is Rs. 15-25 cow/day.

While the income from sale is Rs. 25-35 cow-day.

37.3 These averages make it clear that the belief that cows which do not yield milk are unprofitable

and burden for the owner is totally false. In fact it can be said that products of cow are sufficient to

maintain them even without milk. The milk in such cases is only a by-product.

37.4 It is obvious that all cow owners do not engage in productions of fertilizers or insect repellents.

It can also be understood that such activity may not be feasible for owners of a single or a few cows.

In such cases, the cow's urine and dung may be supplied to such organizations, which utilize these

materials for producing finished products required for agricultural or medicinal purpose.

Commission has noticed that some organizations which are engaged in production of agricultural

and medical products from cow dung and urine do purchase raw materials from nearby cow owner

at a price which is sufficient to maintain the cow." (Report of National Commission on Cattle, July

2002, Vol. II, pp.68-69)

A host of other documents have been filed originating from different sources such as Governmental

or Semi-governmental, NGOs, individuals or group of individuals, who have carried out researches

and concluded that world-over there is an awareness in favour of organic farming for which cattle

are indispensable. However, we do not propose to refer to these documents as it would only add to

the length of the judgment. We have, apart from the affidavits, mainly referred to the reports

published by the Government of India, whose veracity cannot be doubted.

We do not find any material brought on record on behalf of the respondents which could rebut,

much less successfully, the correctness of the deductions flowing from the documented facts and

statistics stated hereinabove.

The utility of cow cannot be doubted at all. A total ban on cow slaughter has been upheld even in

Quareshi-I. The controversy in the present case is confined to cow progeny. The important role that

cow and her progeny play in the Indian Economy was acknowledged in Quareshi-I in the following

words:

Page 1400

"The discussion in the foregoing paragraphs clearly establishes the usefulness of the cow and her

progeny. They sustain the health of the nation by giving them the life giving milk which is so essential

an item in a scientifically balanced diet. The working bullocks are indispensable for our agriculture,

for they supply power more than any other animal. Good breeding bulls are necessary to improve

the breed so that the quality and stamina of the future cows and working bullocks may increase and

the production of food and milk may improve and be in abundance. The dung of the animal is

cheaper than the artificial manures and is extremely useful. In short, the back bone of Indian

agriculture is in a manner of speaking the cow and her progeny. Indeed Lord Linlithgow has truly said

-- "The cow and the working bullock have on their patient back the whole structure of Indian

agriculture." (Report on the Marketing of Cattle in India, p. 20). If, therefore, we are to attain

sufficiency in the production of food, if we are to maintain the nation's health, the efficiency and

breed of our cattle population must be considerably improved. To attain the above objectives, we

must devote greater attention to the preservation, protection and improvement of the stock and

organise our agriculture and animal husbandry on modern and scientific lines."

On the basis of the available material, we are fully satisfied to hold that the ban on slaughter of cow

progeny as imposed by the impugned enactment is in the interests of the general public within the

meaning of Clause (6) of Article 19 of the Constitution.

Part - III

Stare Decisis

48. We have dealt with all the submissions and counter submissions made on behalf of the parties.

What remains to be dealt with is the plea, forcefully urged, on behalf of the respondents that this

Court should have regard to the principle of stare decisis and should not upturn the view taken in

Quareshi-I which has held field ever since 1958 and has been followed in subsequent decisions,

which we have already dealt with hereinabove.

Stare decisis is a Latin phrase which means "to stand by decided cases; to uphold precedents; to

maintain former adjudication". This principle is expressed in the maxim "stare decisis et non quieta

movere" which means to stand by decisions and not to disturb what is settled. This was aptly put by

Lord Coke in his classic English version as "Those things which have been so often adjudged ought to

rest in peace". However, according to Justice Frankfurter, the doctrine of stare decisis is not "an

imprisonment of reason" (Advanced Law Lexicon, P. Ramanatha Aiyer, 3rd Edition 2005, Volume 4,

p. 4456). The underlying logic of the doctrine is to maintain consistency and avoid uncertainty. The

guiding philosophy is that a view which has held the field for a long time should not be disturbed

only because another view is possible.

The trend of judicial opinion, in our view, is that stare decisis is not a dogmatic rule allergic to logic

and reason; it is a flexible principle of law operating in the province of precedents providing room to

collaborate with the demands of Page 1401 changing times dictated by social needs, State policy and

judicial conscience.

49. According to Professor Lloyd concepts are good servants but bad masters. Rules, which are

originally designed to fit social needs, develop into concepts, which then proceed to take on a life of

their own to the detriment of legal development. The resulting "jurisprudence of concepts"

produces a slot-machine approach to law whereby new points posing questions of social policy are

decided, not by reference to the underlying social situation, but by reference to the meaning and

definition of the legal concepts involved. This formalistic a priori approach confines the law in a

strait-jacket instead of permitting it to expand to meet the new needs and requirements of changing

society (Salmond on Jurisprudence, Twelfth Edition, at p. 187). In such cases Courts should examine

not only the existing laws and legal concepts, but also the broader underlying issues of policy. In fact

presently, judges are seen to be paying increasing attention to the possible effects of their decision

one way or the other. Such an approach is to be welcomed, but it also warrants two comments.

First, judicial inquiry into the general effects of a proposed decision tends itself to be of a fairly

speculative nature. Secondly, too much regard for policy and too little for legal consistency may

result in a confusing and illogical complex of contrary decisions. In such a situation it would be

difficult to identify and respond to generalized and determinable social needs. While it is true that

"the life of the law has not been logic, it has been experience" and that we should not wish it

otherwise, nevertheless we should remember that "no system of law can be workable if it has not

got logic at the root of it" (Salmond, ibid, pp. 187-188).

Consequently, cases involving novel points of law, have to be decided by reference to several

factors. The judge must look at existing laws, the practical social results of any decision he makes,

and the requirements of fairness and justice. Sometimes these will all point to the same conclusion.

At other times each will pull in a different direction; and here the judge is required to weigh one

factor against another and decide between them. The rationality of the judicial process in such cases

consists of explicitly and consciously weighing the pros and cons in order to arrive at a conclusion.

(Salmond, ibid, pp. 188).

In case of modern economic issues which are posed for resolution in advancing society or developing

country, the court cannot afford to be static by simplistically taking shelter behind principles such as

stare decisis, and refuse to examine the issues in the light of present facts and circumstances and

thereby adopt the course of judicial "hands off". Novelty unsettles existing attitudes and

arrangements leading to conflict situations which require judicial resolution. If necessary

adjustments in social controls are not put in place then it could result in the collapse of social

systems. Such novelty and consequent conflict resolution and "patterning" is necessary for full

human development. (See -The Province and Function of Law, Julius Stone, at pp.588, 761and 762)

Stare decisis is not an inexorable command of the Constitution or jurisprudence. A careful study of

our legal system will discern that any deviation from the straight path of stare decisis in our past

history has Page 1402 occurred for articulable reasons, and only when the Supreme Court has felt

obliged to bring its opinions in line with new ascertained fact, circumstances and experiences.

(Precedent in Indian Law, A. Laxminath, Second Edition 2005, p. 8).

Given the progressive orientation of the Supreme Court, its creative role under Article 141 and the

creative elements implicit in the very process of determining ratio decidendi, it is not surprising that

judicial process has not been crippled in the discharge of its duty to keep the law abreast of the

times, by the traditionalist theory of stare decisis (ibid, p. 32). Times and conditions change with

changing society, and, "every age should be mistress of its own law" - and era should not be

hampered by outdated law. "It is revolting", wrote Mr. Justice Holmes in characteristically forthright

language, "to have no better reason for a rule of law than it was so laid down in the time of Henry IV.

It is still more revolting if the grounds upon which it was laid down have vanished long since, and the

rule simply persists from blind imitation of the past". It is the readiness of the judges to discard that

which does not serve the public, which has contributed to the growth and development of law. (ibid,

p. 68)

The doctrine of stare decisis is generally to be adhered to, because well settled principles of law

founded on a series of authoritative pronouncements ought to be followed. Yet, the demands of the

changed facts and circumstances dictated by forceful factors supported by logic, amply justify the

need for a fresh look.

Sir John Salmond, while dealing with precedents and illustrating instances of departure by the House

of Lords from its own previous decisions, states it to be desirable as 'it would permit the House (of

Lords) to abrogate previous decisions which were arrived at in different social conditions and which

are no longer adequate in present circumstances. (See - Salmond, ibid, at p.165). This view has been

succinctly advocated by Dr. Goodhart who said: "There is an obvious antithesis between rigidity and

growth, and if all the emphasis is placed on absolutely binding cases then the law looses the capacity

to adapt itself to the changing spirit of the times which has been described as the life of the law".

(ibid, p. 161) This very principle has been well stated by William O' Douglas in the context of

constitutional jurisprudence. He says: "So far as constitutional law is concerned, stare decisis must

give way before the dynamic component of history. Once it does, the cycle starts again". (See -

Essays on Jurisprudence from the Columbia Law Review, 1964, at p.20)

50. We have already indicated that in Quareshi-I, the challenge to the constitutional validity of the

legislation impugned therein, was turned down on several grounds though forcefully urged,

excepting for one ground of 'reasonableness'; which is no longer the position in the case before us in

the altered factual situation and circumstances. In Quareshi-I the reasonableness of the restriction

pitted against the fundamental right to carry on any occupation, trade or business determined the

final decision, having been influenced mainly by considerations of weighing the comparative

inconvenience to the butchers and the advancement of public interest. As the detailed discussion

contained in the judgment reveals, this determination Page 1403 is not purely one of law, rather, it is

a mixed finding of fact and law. Once the strength of the factual component is shaken, the legal

component of the finding in Quareshi-I loses much of its significance. Subsequent decisions have

merely followed Quareshi-I. In the case before us, we have material in abundance justifying the need

to alter the flow of judicial opinion.

Part - IV

Quareshi-I, re-visited :

51. Having dealt with each of the findings recorded in Quareshi-I, which formed the basis of the

ultimate decision therein, we revert to examine whether the view taken by the Constitution Bench in

Quareshi-I can be upheld.

We have already pointed out that having tested the various submissions made on behalf of the writ

petitioners on the constitutional anvil, the Constitution Bench in Quareshi-I upheld the constitutional

validity, as reasonable and valid, of a total ban on the slaughter of : (i) cows of all ages, (ii) calves of

cows and she-buffaloes, male or female, and (iii) she-buffaloes or breeding bulls or working bullocks

(cattle as well as buffaloes) as long as they are as milch or draught cattle. But the Constitution Bench

found it difficult to uphold a total ban on the slaughter of she-buffaloes, bulls or bullocks (cattle or

buffalo) after they cease to be capable of yielding milk or of breeding or working as draught animals,

on the material made available to them, the ban failed to satisfy the test of being reasonable and "in

the interests of the general public". It is clear that, in the opinion of the Constitution Bench, the test

provided by Clause (6) of Article 19 of the Constitution was not satisfied. The findings on which the

above-said conclusion is based are to be found summarized on pp.684-687. Para-phrased, the

findings are as follows:

(1) The country is in short supply of milch cattle, breeding bulls and working bullocks, essential to

maintain the health and nourishment of the nation. The cattle population fit for breeding and work

must be properly fed by making available to the useful cattle in presenti in futuro. The maintenance

of useless cattle involves a wasteful drain on the nation's cattle feed.

(2) Total ban on the slaughter of cattle would bring a serious dislocation, though not a complete

stoppage, of the business of a considerable section of the people who are by occupation Butchers

(Kasai), hide merchant and so on.

(3) Such a ban will deprive a large section of the people of what may be their staple food or protein

diet.

(4) Preservation of useful cattle by establishment of gosadan is not a practical proposition, as they

are like concentration camps where cattle are left to die a slow death.

(5) The breeding bulls and working bullocks (cattle and buffaloes) do not require as much protection

as cows and calves do.

These findings were recorded in the judgment delivered on 23rd April, 1958. Independent India,

having got rid of the shackles of foreign rule, was not even 11 years old then. Since then, the Indian

economy has made much headway and gained a foothold internationally. Constitutional

jurisprudence Page 1404 has indeed changed from what it was in 1958, as pointed out earlier. Our

socio-economic scenario has progressed from being gloomy to a shining one, full of hopes and

expectations and determinations for present and future. Our economy is steadily moving towards

prosperity in a planned way through five year plans, nine of which have been accomplished and

tenth is under way.

We deal with the findings in Quareshi-I seriatim.

Finding 1 :

52. We do not dispute that the country is in short supply of milch cattle, breeding bulls and working

bullocks and that they are essential to maintain the health and nourishment of the nation as held in

Quareshi-I. Rather we rely on the said finding which stands reinforced by the several documents

which we have referred to hereinbefore.

In the Quareshi-I era, there was a shortage of fodder in the country. Various plans were drawn up in

the direction of exploring potential fodder areas for the future. Although, the planning was there;

implementation was lacking. The Report of National Commission on Cattle, July 2002 (Vol. II) reveals

that the existing fodder resources of the country can sustain and meet 51.92% of the total

requirements to sustain its livestock population. But we have to take into consideration the fodder

potential of the country. We have vast culturable waste land which with some efforts can be

developed into good pasture land. Major part of the fallow land can be put under the plough for

having fodder crops such as Jowar, Bajra and smaller millets. The combined area of several

categories of land which can be developed as potential fodder area is 58.87 million hectares. If

managed properly, there are areas in the country which can be developed into a "Grass Reservoir of

India for use as pasture land". One very big potential area lies in Jaisaelmer District of Rajasthan

(spread over 22,16,527 hectares). The Commission has recommended 23 steps to be taken by the

State Government and the Central Government for development and conservation of food and

fodder (See paras 37-41 of the report at pages 130-135).

So far as the State of Gujarat is concerned, we have already noticed, while dealing with the

documentary evidence available on record, that fodder shortage is not a problem so far as this state

is concerned and cow progeny, the slaughtering whereof has already shown a downward trend

during the recent years, can very well be fed and maintained without causing any wasteful drain on

the feed requisite for active milch, breeding and draught cattle.

Finding 2 :

53. The finding suffers from two infirmities. First, Quareshi-I has not felt the necessity of finding

whether a 'total prohibition' is also included within 'restriction' as employed in Article 19(6). It is now

well-settled that 'restriction' includes 'prohibition'. Second and the real fallacy in Quareshi-I is that

the ban limited to slaughtering of cow progeny has been held at one place to be a 'total prohibition',

while in our opinion, is not so. At another place, the effect Page 1405 of ban has been described as

causing 'a serious dislocation, though not a complete stoppage of the business of a considerable

section of the people'. If that is so, it is not a 'total prohibition'. The documentary evidence available

on record shows that beef contributes only 1.3% of the total meat consumption pattern of the

Indian society. Butchers are not prohibited from slaughtering animals other than the cattle

belonging to cow progeny. Consequently, only a part of their activity has been prohibited. They can

continue with their activity of slaughtering other animals. Even if it results in slight inconvenience, it

is liable to be ignored if the prohibition is found to be in the interest of economy and social needs of

the country.

Finding 3 :

54. In the first and second Five Year Plans (Quareshi-I era), there was scarcity of food which reflected

India's panic. The concept of food security has since then undergone considerable change.

47 years since, it is futile to think that meat originating from cow progeny can be the only staple

food or protein diet for the poor population of the country. 'India Vision 2020' (ibid, Chapter 3) deals

with 'Food Security and Nutrition : Vision 2020'. We cull out a few relevant findings and observations

therefrom and set out in brief in the succeeding paragraphs. Food availability and stability were

considered good measures of food security till the Seventies and the achievement of self-sufficiency

was accorded high priority in the food policies. Though India was successful in achieving self-

sufficiency by increasing its food production, it could not solve the problem of chronic household

food insecurity. This necessitated a change in approach and as a result food energy intake at

household level is now given prominence in assessing food security. India is one of the few countries

which have experimented with a broad spectrum of programmes for improving food security. It has

already made substantial progress in terms of overcoming transient food insecurity by giving priority

to self-sufficiency in foodgrains, employment programmes, etc. The real problem, facing India, is not

the availability of food, staple food and protein rich diet; the real problem is its unequal distribution.

The real challenge comes from the slow growth of purchasing power of the people and lack of

adequate employment opportunities. Another reason for lack of food and nutrient intake through

cereal consumption is attributable to changes in consumer tastes and preferences towards superior

food items as the incomes of the household increases. Empirical evidence tends to suggest a positive

association between the calorie intake and nutritional status. The responsiveness is likely to be

affected by the factors relating to health and environment. It is unclear as to how much of the

malnutrition is due to an inadequate diet and how much due to the environment.

India achieved near self-sufficiency in the availability of foodgrains by the mid-Seventies. The trend

rate of foodgrain production improved 2.3 per cent during the 1960s and 1970s to 2.9 per cent in

the Eighties. The recent economic survey of 2005 has also pointed out that the per capita availability

of the milk has doubled since independence from 124 gms/day in the year 1950-51 to 229 gms/day

in the year 2001-02. (Report of National Commission on Cattle. Vol. II, p. 84.)

Page 1406

A complete reading of the research paper on Food Security and Nutrition (Chapter 3 in India Vision

2020) is a clear pointer to the fact that desirable diet and nutrition are not necessarily associated

with non-vegetarian diet and that too originating from slaughtering cow progeny. Beef contributes

only 1.3% of the total meat consumption pattern of the Indian society. Consequently a prohibition

on the slaughter of cattle would not substantially affect the food consumption of the people. To

quote (ibid. p.209) : "Even though the question of desirable diet from nutritional perspective is still

controversial, we can make certain policy options to overcome the nutritional deficiencies. The most

important problem to be attended is to increase the energy intake of the bottom 30 per cent of the

expenditure class. The deficiency of energy intake of the bottom 30 per cent can be rectified by

increasing agricultural productivity in rain fed areas, making available food at an affordable price

through the Public distribution system (PDS), and other poverty alleviation programmes. The micro-

nutrient deficiency can be cost-effectively rectified by supplementary nutritional programmes to the

children and the expectant and lactating mothers."

The main source of staple food which is consumed both by vegetarians and non-vegetarians is

supplied by vegetables. Synthetic staple food has also been made available by scientific researches.

It will, therefore, not be correct to say that poor will suffer in availing staple food and nutritional diet

only because slaughter of cow progeny was prohibited.

Finding 4 :

55. Quareshi-I itself reveals a very general opinion formed by the Court as to the failure of gosadans

and their inability to preserve cattle. The statistics made available before us are a positive indicator

to the contrary that gosadans and goshalas are being maintained and encouraged so as to take up

both useful and so-called useless cattle, if the owner is not willing to continue to maintain them.

Quareshi-I relied on a Report of an Expert Committee, which has certainly become an outdated

document by the lapse of 47 years since then. Moreover, independent of all the evidence, we have

in this judgment already noticed that cattle belonging to the category of cow progeny would not be

rendered without shelter and feed by the owner to whom it had served throughout its life. We find

support from the affidavits and reports filed on behalf of the State of Gujarat which state inter alia

"farmers love their cattle".

National Commission on Cattle in its Report (ibid) has incorporated as many as 17 recommendations

for strengthening of goshalas (para 20 at pages 120-122)

We have already noticed in the affidavits filed on behalf of the State of Gujarat that, in the State of

Gujarat adequate provisions have been made for the maintenance of gosadans and goshalas.

Adequate fodder is available for the entire cattle population. The interest exhibited by the NGOs

seeking intervention in the High Court and filing appeals in this Court also indicates that the NGOs

will be willing to take up the task of caring for aged bulls and bullocks.

Page 1407

Finding 5

56. In Quareshi-I, vide para 42, the Constitution Bench chose to draw a distinction between breeding

bulls and working bullocks, on the one hand and cows and calves, on the other hand, by holding that

the farmers would not easily part with the breeding bulls and working bullocks to the butchers as

they are useful to the farmers. It would suffice to observe that the protection is needed by the bulls

and bullocks at a point of time when their utility has been reduced or has become nil as they near

the end of their life. That is what Article 48, in fact, protects, as interpreted in this judgment.

India, as a nation and its population, its economy and its prosperity as of today are not suffering the

conditions as were prevalent in 50s and 60s. The country has achieved self-sufficiency in food

production. Some of the states such as State of Gujarat have achieved self-sufficiency in cattle-feed

and fodder as well. Amongst the people there is an increasing awareness of the need for protein rich

food and nutrient diet. Plenty of such food is available from sources other than cow/cow progeny

meat. Advancements in the field of Science, including Veterinary Science, have strengthened the

health and longetivity of cattle (including cow progeny). But the country's economy continues to be

based on agriculture. The majority of the agricultural holdings are small units. The country needs

bulls and bullocks.

For multiple reasons which we have stated in very many details while dealing with Question-6 in Part

II of the judgment, we have found that bulls and bullocks do not become useless merely by crossing

a particular age. The Statement of Objects and Reasons, apart from other evidence available, clearly

conveys that cow and her progeny constitute the backbone of Indian agriculture and economy. The

increasing adoption of non-conventional energy sources like Bio-gas plants justify the need for bulls

and bullocks to live their full life in spite of their having ceased to be useful for the purpose of

breeding and draught. This Statement of Objects and Reasons tilts the balance in favour of the

constitutional validity of the impugned enactment. In Quareshi-I the Constitution Bench chose to

bear it in mind, while upholding the constitutionality of the legislations impugned therein, insofar as

the challenge by reference to Article 14 was concerned, that "the legislature correctly appreciates

the needs of its own people". Times have changed; so have changed the social and economic needs.

The Legislature has correctly appreciated the needs of its own people and recorded the same in the

Preamble of the impugned enactment and the Statement of Objects and Reasons appended to it. In

the light of the material available in abundance before us, there is no escape from the conclusion

that the protection conferred by impugned enactment on cow progeny is needed in the interest of

Nation's economy. Merely because it may cause 'inconvenience' or some 'dislocation' to the

butchers, restriction imposed by the impugned enactment does not cease to be in the interest of the

general public. The former must yield to the latter.

57. According to Shri M.S. Swaminathan, the eminent Farm Scientist, neglect of the farm sector

would hit our economy hard. According to him "Today, global agriculture is witnessing two opposite

trends. In many Page 1408 South Asian countries, farm size is becoming smaller and smaller and

farmers suffer serious handicaps with reference to the cost-risk-return structure of agriculture. In

contrast, the average farm size in most industrialized countries is over several hundred hectares and

farmers are supported by heavy inputs of technology, capital and subsidy. The on-going Doha round

of negotiations of the World Trade Organisation in the field of agriculture reflects the polarization

that has taken place in the basic agrarian structure of industrialized and developing countries.

Farming as a way of life is disappearing and is giving way to agribusiness." (K.R. Narayanan Oration

delivered by Dr. Swaminathan at the Australian National University, Canberra, published in 'The

Hindu', October 17, 2005, p.10)

"In India, nearly 600 million individuals are engaged in farming and over 80 per cent of them belong

to the small and marginal farmer categories. Due to imperfect adaptation to local environments,

insufficient provision of nutrients and water, and incomplete control of pests, diseases and weeds,

the present average yields of major farming systems in India is just 40 per cent of what can be

achieved even with the technologies currently on the shelf. There is considerable scope for further

investment in land improvement through drainage, terracing, and control of acidification, in areas

where these have not already been introduced." (ibid)

58. Thus, the eminent scientist is very clear that excepting the advanced countries which have

resorted to large scale mechanized farming, most of the countries (India included) have average

farms of small size. Majority of the population is engaged in farming within which a substantial

proportion belong to small and marginal farmers category. Protection of cow progeny will help them

in carrying out their several agricultural operations and related activities smoothly and conveniently.

Organic manure would help in controlling pests and acidification of land apart from resuscitating and

stimulating the environment as a whole.

59. Having subjected the restrictions imposed by the impugned Gujarat enactment to the test laid

down in the case of N.M. Thomas (supra) we are unhesitatingly of the opinion that there is no

apparent inconsistency between the Directive Principles which persuaded the State to pass the law

and the Fundamental Rights canvassed before the High Court by the writ petitioners.

60. Before we part, let it be placed on record that Dr. L.M. Singhvi, the learned senior counsel for

one of the appellants, initially tried to build an argument by placing reliance on Article 31C of the

Constitution. But at the end he did not press this submission. Similarly, on behalf of the respondents,

the Judgment of the High Court has been supported only by placing reliance on Article 19(6) of the

Constitution. The legislative competence of the State Legislature to enact the law was not disputed

either in the High Court or before us.

Page 1409

Result

61. For the foregoing reasons, we cannot accept the view taken by the High Court. All the appeals

are allowed. The impugned judgment of the High Court is set aside. The Bombay Animal

Preservation (Gujarat Amendment) Act, 1994 (Gujarat Act No. 4 of 1994) is held to be intra vires the

Constitution. All the writ petitions filed in the High Court are directed to be dismissed.

DISSENTING OPINION

A.K. Mathur, J.

1. I have gone through the erudite judgment by Hon'ble Chief Justice. But I regret I cannot support

the view taken by Hon'ble Chief Justice.

2. Basic question that arises in these petitions are whether there is need to over-rule the earlier

decisions which held the field right from 1958-1996, is the ground realities have materially changed

so as to reverse the view held by successive Constitutional Benches of this Court or those decisions

ceased to have any relevance.

3. It is true that life is ever changing and the concept which was useful in 18th century may not be

useful in this millennium. We have gone from cartage to space age. New scientific temper is a

guiding factor in this millennium. But despite the changing pattern of life it cannot be said that the

decision delivered in the case of Mohd. Qureshi followed by subsequent decisions have outlived its

ratio. In my respectful view the material which has been placed for taking a contrary view does not

justify the reversal of earlier decisions.

4. The detailed history of the legislation and various decisions bearing on the subject has been dealt

with by Hon'ble Chief Justice in most exhaustive and pains-taking manner. Therefore, there is no

need to repeat those legislative as well as judicial history here. My endeavor in this opinion will be to

show that the situation which existed right from 1958 till this date there is no material change

warranting reversal of the judgments bearing on the subject from 1958-96.

5. The whole controversy arose in the writ petition filed in the Gujarat High Court challenging the

validity of the Bombay Animal Preservation (Gujarat Amendment) Act, 1994 (hereinafter referred to

Gujarat Act No. 4 of 1994). By this amendment the age of bulls and bullocks which was existed at

that time that is bull below the age of 16 years and bullocks below the age of 16 years can not be

slaughtered was deleted. By this amendment the age restriction was totally taken away and that

means that no bull and bullock irrespective of age shall be slaughtered. This amendment was

challenged before the Gujarat High Court. The Gujarat High Court after dealing with all aspects in

detail held that amendment is ultra vires. Hence, the present petition alongwith the other petitions

came up before this Court by Special Leave Petition.

6. The matter was listed before the three Judges' Bench. Thereafter, it was taken by the Constitution

Bench and the Constitution Bench realizing difficulty that there are already Constitution Bench

judgments holding the Page 1410 field, referred the matter to the seven Judges' Bench for

reconsideration of all the earlier decisions of the Constitution Benches. Hence these matters are

before seven Judges' Bench.

Hon'ble the Chief Justice has already reproduced the objects and reasons for amendment therefore

same need not be reproduced here. This amendment brought about to effect directive principles of

the State Policy under Articles 47, 48 of the clause (b) and (c) of Article 39 of the Constitution.

Thereafter, Hon'ble Chief Justice has also reviewed all the cases bearing on the subject which can be

enumerated as under:

1. (Mohd. Hanif Qureshi and Ors. v. State of Bihar)

2. (Abul Hakim v. State of Bihar)

3. (Mohd. Faruk v. State of M.P. and Ors.)

4. (Haji Usmanbhai Hasanbhai Qureshi v. State of Gujarat

5. (Hashmattullah v. State of M.P. and Ors.)

In these cases, this very question was agitated & by series of decisions it was answered in the

negative.

7. In Mohd. Hanif Qureshi's case this Court upheld a total prohibition of slaughter of the cows of all

ages and calf of buffalows (male and female) & she-buffaloes, breeding bulls and working bullocks,

without prescribing any test of requirement as to their age. But so far as bull & bullocks are

concerned when they ceased to have draughtability prohibition of their slaughter was not upheld in

public interest. Hon'ble S.R. Das, CJ speaking for the Court exhaustively dealt with all the aspects

which practically covers all the arguments which have been raised before us, especially, the utility of

the cow-dung for manure as well as the cow urine for its chemical qualities like Nitrogen Phosphates

and Potash. His Lordship recognized that this enactment was made in discharge of State's obligation

under Article 48 of the Constitution to preserve our livestock.

His Lordship has discussed the question of reasonable restriction under Article 19 (6) and after

considering all material placed before the Court, and adverting to social, religious, utility point of

view in most exhaustive manner finally concluded thus :

"After giving our most careful and anxious consideration to the pros and cons of the problem as

indicated and discussed above and keeping in view the presumption in favour of the validity of the

legislation and without any the least disrespect to the opinions of the legislatures concerned we feel

Page 1411 that in discharging the ultimate responsibility cast on us by the Constitution we must

approach and analyze the problem in an objective and realistic manner and then make our

pronouncement on the reasonableness of the restrictions imposed by the impugned enactments. So

approaching and analyzing the problem, we have reached the conclusion (i) that a total ban on the

slaughter of cows of all ages and calves of cows and calves of she-buffaloes, male and female, is

quite reasonable and valid and is in consonance with the directive principles laid down in Article 48;

(ii) that a total ban on the slaughter of she-buffaloes, or breeding bulls or working bullocks (cattle as

well as buffaloes) as long as they are as milch or draught cattle is also reasonable and valid and (iii)

that a total ban on the slaughter of she-buffaloes, bulls and bullocks (cattle or buffalo) after they

cease to be capable of yielding milk or of breeding or working as draught animals cannot be

supported as reasonable in the interest of the general public."

Therefore, their Lordships have summarized the whole concept of preservation of the cattle life in

India with reservation that those cattle head which have lost their utility can be slaughtered specially

with regard to draught cattle, bulls, bullocks & buffaloes so as to preserve the other milching cattle

for their better breed and their better produce.

8. Subsequently in another decision, in the case of Abdul Hakim v. State of Bihar reported in the ban

was imposed by the States of Bihar, Madhya Pradesh and U.P. which came up for consideration

before this Court and in this context it was observed as under:

"The test of reasonableness should be applied to each individual statute impugned and no abstract

standard, or general pattern, of reasonableness can be laid down as applicable to all cases. The

nature of the right alleged to have been infringed, the underlying purpose of the restrictions

imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the

imposition, the prevailing conditions at the time, should all enter into the judicial verdict."

Their Lordship also emphasized that the legislature is the best Judge of what is good for the

community, by whose suffrage it comes into existence, the ultimate responsibility for determining

the validity of the law must rest with the Court and the Court must not shirk that solemn duty cast

on it by the Constitution.

It was observed that the unanimous opinion of the experts is that after the age of 15, bulls, bullocks

and buffaloes are no longer useful for breeding, draught and other purpose and whatever little use

they may have then is greatly off-set by the economic disadvantage of feeding and maintaining

unserviceable cattle.

9. Section 3 of the Bihar Act in so far as it has increased the age limit to 25 in respect of bulls,

bullocks and she-buffaloes, for the purpose of their slaughter imposes an unreasonable restriction

on the fundamental right of Page 1412 the butchers to carry on their trade and profession.

Moreover the restriction cannot be said to be in the interests of the general public, and to that

extent it is void.

Then again in the case of Mohd. Faruk v. State of Madhya Pradesh and Ors. reported in Constitution

Bench was called upon to decide the validity of the notification issued by the Madhya Pradesh

Government under Municipal Corporation Act. Earlier, a notification was issued by the Jabalpur

Municipality permitting the slaughter of bulls and bullocks alongwith the other animals. Later on

State Government issued notification cancelling the notification permitting the slaughter of bulls and

bullocks. This came up for a challenge directly under Article 32 of the constitution before this Court,

that this restriction amounts to breach of Article 19(1)(g) of the constitution. In that context, their

Lordship observed:

"That the sentiments of a section of the people may be hurt by permitting slaughter of bulls and

bullocks in premises maintained by a local authority. But a prohibition imposed on the exercise of a

fundamental right to carry on an occupation, trade or business will not be regarded as reasonable if

it is imposed not in the interest of the general public but merely to respect the susceptibilities and

sentiments of a section of the people whose way of life belief or thought is not the same as that of

the claimant. The notification issued must, therefore, be declared ultra virus as infringing Article

19(1)(g) of the Constitution."

Then again in the case of Haji Usmanbhai Hasanbhai Qureshi and Ors. v. State of Gujarat reported in

the insertion of Section 5 (1-A) (c) and (d) was made under the Bombay Animal Preservation (Gujarat

amendment) act 1979) came up for consideration. By virtue of this insertion by the Gujarat State, it

was laid down that there will be ban of slaughter of bulls, bullocks below the age of 16 years. It was

contented that this prohibition is unreasonable and violative of Article 19(1)(g). Their Lordships

upheld the restriction under Article 19(6) with reference to Article 48 of the constitution. Their

Lordships upheld the contention of the State of Gujarat that with the improvement of scientific

methods cattle up to the age of 16 years are used for the purpose of breeding and other agricultural

operation. But by this Act of 1994 this age restriction has now been totally taken away by the Act of

1994 (which is subject matter of challenge in these petitions).

Then again the matter came up before this Court in the case of Hashmattullah v. State of M.P. and

Ors. reported in. This time the provisions of the M.P. Agricultural Cattle Preservation Act, 1959 came

up for consideration. This Act was amended by Amending Act of 1991 and a total ban on slaughter of

bulls and bullocks came to be imposed. And this was challenged being violative of Article 19 (1)(g) of

the constitution.

Page 1413

10. Their Lordships after reviewing all earlier cases on the subject and taking into consideration the

uselessness of these bulls and bullocks after they have attained a particular age for agriculture

operation like manure as well as bio-gas and ecology, observed in para 18 as under:

"We are pained to notice the successive attempts made by the State of Madhya Pradesh to nullify

the effect of this Court's decisions beginning with Mohd. Hanif's case and ending with Mohd. Faruk's

case, each time on flimsy grounds. In this last such attempt, the objects and reasons show how

insignificant and unsupportable the ground for bringing the legislation was. The main thrust of the

objects and reasons for the legislation seems to be that even animals which have ceased to be

capable of yielding milk or breeding or working as draught animals can be useful as they would

produce dung which could be used to generate non-conventional sources of energy like bio-gas

without so much as being aware of the cost of maintaining such animals for the mere purpose of

dung. Even the supportive articles relied upon do not bear on this point. It is obvious that successive

attempts are being made in the hope that some day it will succeed as indeed it did with the High

Court which got carried away by research papers published only two or three years before without

realizing that they dealt with the aspect of utility of dung but had nothing to do with the question of

the utility of animals which have ceased to be reproductive of capable of being used as draught

animals. Besides, they do not even reflect on the economical aspect of; maintaining such animals for

the sole purpose of dung. Prim facie it seems farfetched and yet the State Government thought it as

sufficient to amend the law."

And their Lordships declined to review the ratio laid down in Mohd. Hanif Qureshi's case &

reiterated the same.

11. This is a survey of the judicial determination on the subject. And in the last case their Lordships

frowned on unsuccessful attempt by the State to somehow nullify the ratio laid down in Mohd. Hanif

Qureshi's case and subsequent decisions following Qureshi's case. But this time, the State of Gujarat

has come up to seek the review of earlier decisions. Now I shall examine the material which has

been placed by the State of Gujarat to justify the total prohibition of slaughter of bulls and bullocks.

12. Learned counsel for the appellant has brought to our notice the affidavit filed by the State of

Gujarat which has been reproduced by the Hon'ble Chief Justice on page 56 in his opinion onwards.

Therefore, I need not reproduce the whole of the affidavit. Mr. J.S. Parikh, Deputy Secretary,

Agricultural Cooperative and Rural Development Department of the State of Gujarat has in his

affidavit stated that almost in 50% of the agricultural operation by tractor is not possible because of

small holdings in the State of Gujarat. Therefore, for such small holdings the draught animals are

best used for cultivation purposes. It was also stated that the total cultivated area of Gujarat State is

about 124 lakh hectares and a pair of bullocks is required for ploughing 10 hectares of land.

Therefore, 5.481million and approximately equal number is required for carting of whole land. In

accordance with livestock census, the Gujarat State has availability of indigenous bullocks around

2.84 millions Page 1414 that means that a State has only 25% of their requirement and it is also

stated that each bull is required for this purpose. He has also stated that bull or bullocks at every

stage of life supplies 3500 kg. of dung and 2000 ltrs. of urine and this quantity of dung can supply

5000 cubic feet of biogas, 80 M.T. of organic fertilizer and the urine can supply 2000 ltrs of pesticides

and the use of it in farming increases the yield very substantially. That in recent advancement of

technology use of biogas has become very useful source of energy and the biogas can be prepared

out of the cow dung and other inputs. It was pointed out that there are 19362 biogas plants installed

in the State during 1995-97.

13. Similarly, an additional affidavit was filed by Mr. D.P. Amin, Joint Director of Animal Husbandry,

Gujarat State. He has mentioned that the number of the slaughter houses have declined during the

year 1982-83 to 1996-97. The average number of animals slaughtered in regulated slaughter houses

was 4,39,141. It is also stated that there is a reduction in slaughter of the bull and bullocks above the

age of 16 years. Almost 50 per cent of the land holdings are less than 2 hectares; tractor operation is

not affordable to small farmers. For tractors operation one should have large holding of land. Such

land holders are only around 10 per cent of the total land holders. Hence the farmers with small land

holdings require bullocks for their agricultural operations and transport. There is reduction in

slaughter of bulls and bullocks above the age of 16 years reported in the regulated slaughter houses

of Gujarat State. As reported in the years from 1982-83 to 1996-97, the slaughter of bulls and

bullocks above the age of 16 years was only 2.48% of the total animals of different categories

slaughtered in the State. This percentage has gone down to the level of only 1.10% during last 8

years i.e. 1997-98 to 2004-05 which is very less significant to cause or affect the business of butcher

communities. He has also stated that the bullock above the age of 16 years can generate 0.68 horse

power draught output while the prime bullock generates 0.83 horse power per bullock during

carting/hauling draught work. Considering the utility of bullocks above 16 years of age as draught

power a detailed combined study was carried out by Department of Animal Husbandry and Gujarat

Agricultural University (Veterinary Colleges S.K. Nagar & Anand). The study covered different age

groups of 156 (78 pairs) bullocks above the age of 16 years age generated 0.68 horse power draught

output per bullock while the prime bullock generated 0.83 horse power per bullock during

carting/hauling draught work in a summer with about more than 42: F temp. The study proves that

93% of aged bullock above 16 years of age are still useful to farmers to perform light and medium

draught works. The importance of organic manure as a source of humus and plant nutrients to

increase the fertility level of soils has been well recognized. The organic matter content of cultivated

soils of the tropics and sub-tropics is comparatively low due to high temperature and intense

microbial activity. The crops remove annually large quantity of plant nutrients from soil. Moreover,

Indian soils are poor in organic matter and in major plant nutrients. Therefore, soil humus has to be

replenished through periodic addition of organic manure for maintaining soil productivity. It was

mentioned that there is number of bio-gas plants operating in the State of Gujarat.

Page 1415

14. Apart from these affidavits many more published documents have been placed on record which

has been reproduced by the Hon'ble Chief Justice of India in his opinion. But all these are general

datas which only provide the usefulness of cow dung for the purposes of manure as well as for

biogas and likewise the urine of the cows for pesticides and ayurvedic purposes. But all those datas

cannot change the reality that such an aged bull and bullocks produce huge quantity of the cow

dung manure and urine which can alter a situation materially so as to reverse the earlier decisions of

this court. Utility of the cow dung and urine was realized and appreciated in the earlier decision of

this Court in Mohd. Hanif Qureshi's and Ors. v. State of Bihar and Ors. The then Chief Justice has

quoted from various scriptures emphasizing the importance of the cattle life. Therefore it cannot be

said that the earlier decisions rendered by the Constitution Bench was oblivious of these facts.

However, so far as the affidavits filed on behalf of State of Gujarat about the use of biogas and the

usefulness of the draught animals has to be taken with pinch of salt, in both the affidavits it has been

admitted that urine and the cow dung of the aged bull and bullocks beyond 16 years is reduced

considerably and likewise their draughtability. Therefore, it is admitted that the bullocks which have

crossed the age of 16 years their output for the urine, cow dung and draughtability is substantially

reduced. Therefore it is explicit from their affidavits that the age of 16 years prescribed earlier was

on a very reasonable basis after proper scientific study but de hors those scientific study the State

Government brought this amendment removing the age limit for slaughtering of the bulls and

bullocks and totally prohibited slaughtering of the same. This decision of the State Government does

not advance the public interest.

Another significant disclosure in both these affidavits is that slaughtering of these bulls and bullocks

has considerably reduced in the year 1997-98 to 2004-2005. The slaughtering of bulls and bullocks

beyond the age of 16 years was only 2.48 % of the total animals of different categories slain in the

State prior to this period. This percentage has gone down to the level of only 1.10 % during the last 8

years i.e. 1997-98 to 2004-2005. These details reveal that in fact the slaughtering of these bulls and

bullocks beyond the age of 16 years constituted only 1.10% of the total slaughtering takes place in

the State. If this is the ratio of the slaughtering, I fail to understand how this legislation can advance

the cause of the public at the expense of the denial of Fundamental Right of this class of persons

(butchers). In view of facts disclosed in the affidavit filed by the two senior officer of the State of

Gujarat speaks volume that for small percentage of 1.10% can the fundamental right of this class of

persons should be sacrificed and earlier decisions be reversed. I fail to understand how it would

advance the cause of the public at large so as to deprive the handful of persons of their rights to

profession. On the basis of this material, I am of the opinion that the earlier decisions of this Court

have not become irrelevant in the present context. The tall claim made by State looks attractive in a

print but in reality it is not so. I fail to understand that how can an animal whose average age is said

to Page 1416 be 12-16 years can at the age of 16 years reproduce the cow-dung or urine which can

off set the requirement of the chemical fertilizer. In this connection reference be made to text book

where average age is 12 years. It is a common experience that the use of the chemical fertilizer has

increased all over the country and the first priority of the farmer is the chemical fertilizer, as a result

of which the production in food grain in the country has gone up and today the country has become

surplus. This is because of the use of the chemical fertilizer only and not the organic manure. It was

observed in Mohd. Hanif's case that India has a largest cattle head but a lower in the production of

milk. It is only because of the scientific methods employed by veterinarian which has increased the

milk production in the country not because of the poor breed of the bulls. It is common experience

that aged bulls are not used for purposes of covering the cows for better quality of the breed. Only

well-built young bulls are used for the purpose of improving the breeding and not the aged bulls. If

the aged and weak bulls are allowed for mating purposes, the offspring will be of poor health and

that will not be in the interest of the country. So far as the use of biogas is concerned, that has also

been substantially reduced after the advent of L.P.G.

16. Therefore in my opinion, in the background of this scenario, I do not think that it will be proper

to reverse the view which has been held good for a long spell of time from 1958 to 1996. There is no

material change in ground realities warranting reversal of earlier decisions.

17. One of the other reasons which has been advanced for reversal of earlier judgments was that at

the time when these earlier judgments were delivered Article 48(A) and 51(A) were not there and

impact of both these Articles were not considered. It is true that Article 48(A) which was introduced

by the 42nd Constitutional Amendment in 1976 with effect from 3.1.1977 and Article 51(A) i.e.

fundamental duties were also brought about by the same amendment. Though, these Articles were

not in existence at that time but the effect of those Articles were indirectly considered in the Mohd.

Hanif Qureshi's case in 1958. It was mentioned that cow dung can be used for the purposes of

manure as well as for the purpose of fuel that will be more echo-friendly. Similarly, in Mohd. Hanif

Qureshi's case their Lordships have quoted from the scriptures to show that we should have a

proper consideration for our cattle wealth and in that context their Lordships quoted in para 22

which reads as under:

"22. The avowed object of each of the impugned Acts is to ensure the preservation, protection, and

improvement of the cow and her progeny. This solicitude arises out of the appreciation of the

usefulness of cattle in a predominantly agricultural society. Early Aryans recognized its importance

as one of the most indispensable adjuncts of agriculture. It would appear that in Vedic times animal

flesh formed the staple food of the people. This is attributable to the fact that the climate in that

distant past was extremely cold and the Vedic Aryans had been a pastoral people before they settled

down as agriculturists. In Rg. Vedic times goats, sheep, cows, buffaloes and even horses were

slaughtered for food and for religious sacrifice and their flesh used to be offered to the Gods. Agni is

called the "eater of ox or cow" in Rg.Veda (VIII,43,11). The slaying of a great ox Page 1417 (Mahoksa)

or a "great Goat" (Mahaja) for the entertainment of a distinguished guest has been enjoined in the

Satapatha Brahmana (III.4. 1-2). Yagnavalkya also expresses a similar view (Vaj.1. 109). An interesting

account of those early days will be found in Rg.Vedic Culture by Dr. A.C. Das, Chapter 5, pages 203-5

and in the History of Dharamasastras (Vol.II, Part II) by P.V. Kane at pages 772-773. Though the

custom of slaughtering of cows and bulls prevailed during the vedic period, nevertheless, even in the

Rg. Vedic times there seems to have grown up a revulsion of feeling against the custom. The cow

gradually came to acquire a special sanctity and was called "Aghnya" (not to be slain). There was a

school of thinkers amongst the Risis, who set their face against the custom of killing such useful

animals as the cow and the bull. High praise was bestowed on the cow as will appear from the

following verses from Rg.Veda, Book VI, Hymn XXVIII (Cows) attributed to the authorship of Sage

Bhardavaja:

"1 . The kine have come and brought good fortune; let them rest in the cow-pen and be happy near

us.

Here let them stay prolific, many coloured, and yield through many morns their milk for Indra.

6. O Cows, ye fatten e'n the worn and wasted, and make the unlovely beautiful to look on.

Prosper my house, ye with auspicious voices, your power is glorified in our assemblies.

7. Crop goodly pasturages and be prolific; drink pure sweet water at good drinking places.

Never be thief or sinful man your master, and may the dart of Rudra still avoid you."

(Translation by Ralph Griffith). Verse 29 of hymn 1 in Book X of Atharva Veda forbids cow slaughter

in the following words:

"29. The slaughter of an innocent, O Kritya, is an awful deed, Slay not cow, horse, or man of ours."

Hyman 10 in the same book is a rapturous glorification of the cow:

"30. The cow is Heaven, the cow is Eath, the cow is Vishnu, Lord of life.

The Sadhyas and the Vasus have drunk the outpourings of the cow.

34. Both Gods and mortal men depend for life and being on the cow. She hath become this universe;

all that the sun surveys is she."

P.V. Kane argues that in the times of the Rg.Veda only barren cows, if at all, were killed for sacrifice

or meat and cows yielding milk were held to be not fit for being killed. It is only in this way,

according to him that one can explain and reconcile the apparent conflict between the custom of

killing cows for food and the high praise bestowed on the cow in Rg.Vedic times. It would appear

that the protest raised against the slaughter of cows greatly increased in volume till the custom was

totally abolished in a later age. The change of climate perhaps also make the use of beef as food

unnecessary and even injurious to health. Gradually cows became indicative of the wealth of the

owner. The Neolithic Aryans not having been acquainted with metals, there were no coins in current

use in the earlier stages of their civilization, but as they were eminently a pastoral people Page 1418

almost every family possessed a sufficient number of cattle and some of them exchanged them for

the necessaries of their life. The value of cattle (Pasu) was, therefore, very great with the early

Rg.Vedic Aryans. The ancient Romans also used the word pecus or pecu (pasu) in the sense of wealth

or money. The English words, "pecuniary" and "impecunious", are derived from the Latin root pecus

or pecu, originally meaning cattle. The possession of cattle in those days denoted wealth and a man

was considered rich or poor according to the large or small number of cattle that he owned. In the

Ramayana king Janaka's wealth was described by reference to the large number of herds that he

owned. It appears that the cow was gradually raised to the status of divinity. Kautilya's Arthasastra

has a special chapter (Ch.XXIX) dealing with the "superintendent of cows" and the duties of the

owner of cows are also referred to in Ch.XI of Hindu Law in its sources by Ganga Nath Jha. There can

be no gainsaying the fact that the Hindus in general hold the cow in great reverence and the idea of

the slaughter of cows for food is repugnant to their notions and this sentiment has in the past even

led to communal riots. It is also a fact that after the recent partition of the country this agitation

against the slaughter of cows has been further intensified. While we agree that the constitutional

question before us cannot be decided on grounds of mere sentiment, however passionate it may be,

we, nevertheless, think that it has to be taken into consideration, though only as one of many

elements, in arriving at a judicial verdict as to the reasonableness of the restrictions."

18. Therefore it cannot be said that the Judges were not conscious about the usefulness and the

sanctity with which the entire cow and its progeny has been held in our country. Though Article

48(A) and 51(A) were not there, but their Lordships were indirectly conscious of the implication.

Articles 48(A) and 51(A) do not substantially change the ground realities which can persuade to

change the views which have been held from 1958 to 1996. Reference was also made that for

protection of top soil, the cow dung will be useful. No doubt the utility of the cow dung for

protection of the top soil is necessary but one has to be pragmatic in its approach that whether the

small yield of the cow dung and urine from aged bulls and bullocks can substantially change the top

soil. In my opinion this argument was advanced only for the sake of argument but does not advance

the case of the petitioners/appellants to reverse the decision of the earlier Benches which had stood

the test of time.

19. In this connection, it will be relevant to refer the principle of stare decisis . The expression of

'stare decisis' is a Latin phrase which means "to stand by decided cases; to uphold precedents; to

maintain former adjudications". It is true that law is a dynamic concept and it should change with

the time. But at the same time it shall not be so fickle that it changes with change of guard. If the

ground realities have not changed and it has not become irrelevant with the time then it should not

be reviewed lightly. I have discussed above the reasons which have been given by the State of

Gujarat for reconsideration of the earlier decisions on the subject, in my humble opinion the

justification so pleaded is not sufficient to change or review the decision of the Constitution Bench

by the present Bench of seven Judges.

The principle of stare decisis is based on a public policy. This policy is based on the assumption that

certainty, predictability and stability in the law are Page 1419 the major objectives of the legal

system; i.e. that parties should be able to regulate their conduct and enter into relationships with

reasonable assurance of the governing rules of law. If the courts start changing their views

frequently then there will be a lack of certainty in the law and it is not good for the health of the

nation.

Craies on Statue Law, 7th Edition, it was observed that:

"The rule is also founded more logically on the axiom statre decisis, which was the ground of the

decision in Hanau v. Ehrlich. The case turned on the ambiguous words in the Statute of Frauds as to

agreements not to be performed within a year from the making thereof. The House of Lords in

12912 decided that though it may be well doubted whether an agreement for more than one year

determinable by notice within the year is within the statute, a long course of decisions going back to

1829 in the affirmative ought not to be disturbed. And in 1945 Scott L.J. refused to decide against a

decision of Malins v. C. in 1870 on the ground that the construction placed by the Vice- Chancellor

on certain sections of the Companies Act 1862 had been accepted for a long time. In 1958 Lord

Evershed M.R. said: "There is well-established authority for the view that a decision of long standing,

on the basis of which many persons will in the course of time have arranged their affairs, should not

lightly be disturbed by a superior court not strictly bound itself by the decision."

In 1919 Lord Buckmaster enunciated the principles on which the rule of stare decisis is based.

"Firstly, the construction of a statute of doubtful meaning once laid down and accepted for a long

period of time ought not to be altered unless your Lordships could say positively that it was wrong

and productive of inconvenience. Secondly, that the decisions upon which title to property depends

or which by establishing principles of construction otherwise form the basis of contracts ought to

receive the same protection. Thirdly, decisions affecting the general conduct of affairs, so that their

alteration would mean that taxes had been unlawfully imposed or exemption unlawfully obtained,

payments needlessly made or the position of the public materially affected, ought in the same way

to continue."

Earlier, Lord Westbury had thus stated the rule, "We must bow to the uniform interpretation which

has been put upon the statute of Elizabeth and must not attempt to disturb the exposition it has

received _. If we find a uniform interpretation of a statue upon a question materially affecting

property, and perpetually recurring, and which has been adhered to without interruption, it would

be impossible for us to introduce the precedent of disregarding that interpretation. Disagreeing with

it would thereby be shaking rights and titles which have been founded through so many years upon

the conviction that that interpretation is the legal and proper one and is one which will not be

departed from."

The rule of stare decisis was followed in Associated Newspapers Ltd. v. City of London Corporation,

where the House of Lords declined to overrule two old cases which established the non-ratability of

certain property in the City of London on the construction of an Act of 1767, and in Morgan v. Fear,

where the House of Lords refused to disturb a construction of the Prescription Act 1832, which had

been settled and acted on for forty-six years. In Cohen v. Bayley- Worthington Page 1420 which

turned on the construction of the Fines and Recoveries Act, 1833, the House of Lords refused to put

on that Act a new construction, as property had been settled or otherwise dealt with for a long

period of time on the faith of the older cases, and in Close v. Steel Co. of Wales Ltd. Lord Morton of

Henryton said: "I have always understood that when this House clearly expresses a view upon the

construction of an Act of Parliament and bases its decision on that view, the Act must bear that

construction unless and until Parliament alters the Act."

20. Therefore one of the hallmarks of the law is certainty predictability and stability unless the

ground realty has completely changed. In the present case, as discussed above, in my opinion the

ground reality has not changed and the law laid down by this court holds good and relevant. Some

advancement in technology and more and more use of the cow dung and urine is not such a

substantial factor to change the ground realities so as to totally done away with the slaughtering of

the aged bulls and bullocks. It is true my Lord the Chief Justice has rightly observed that principle of

stare decisis is not a dogmatic rule allergic to logic and reason; it is a flexible principle of law

operating in the province of precedents providing room to collaborate with the demands of

changing times dictated by social needs, State policy and judicial conscience. There is no quarrel to

this proposition, but the only question is whether the earlier decisions are not logical or they have

become unreasonable with the passage of time. In my humble opinion, those decisions still hold

good in the present context also. Therefore, I do not think that there are compelling reasons for

reversal of the earlier decisions either on the basis of advancement of technology or reason, or logic,

or economic consideration. Therefore, in my humble opinion, there is no need to reverse the earlier

decisions.

21. An argument was raised with regard to role of objects and reasons preceding the enactment.

There is no two opinion that they are useful and for purposes of interpretation of the provisions

whenever its validity is challenged. This aspect has been dealt with by the Hon'ble Chief Justice and I

do not wish to add anything more to it.

22. Likewise, the Hon'ble Chief Justice has dealt in detail the relation of Fundamental Rights with

Directive Principles. His Lordship has very exhaustively dealt with all the cases bearing on the subject

prior and after decision in Keshwanand Bharti's case. The court should guard zealously Fundamental

Rights guaranteed to the citizens of the society, but at the same time strike a balance between the

Fundamental Rights and the larger interests of the society. But when such right clashes with the

larger interest of the country it must yield to the latter. Therefore, wherever any enactment is made

for advancement of Directive Principles and it runs counter to the Fundamental Rights an attempt

should be made to harmonise the same if it promotes larger public interest.

23. Therefore, as a result of above discussion, I am of the view that the view taken by the Division

Bench of the Gujarat High Court is correct and there is no justification for reversing the view taken

by the earlier Constitution Bench decision of this Court. All appeals are dismissed. No order as to

costs.


IA No. 826 in IA No. 566 in Writ Petition (C) 202 of 1995 with IA Nso. 932 in 819-821, 955, 958, 985,

1001-1001a, 1013-1014, 1016-1018, 1019, 1046, 1047, 1135-1136, 1137, 1164, 1180-1181, 1182-

1183, 1196, 1208-1209, 1222-1223, 1224-1225, 1229, 1233, 1248-1249, 1253, 1301-1302, 1303-

1304, 1312, 1313, 1314, 1315-1316, 1318 and 1319 in Writ Petition (C) 202 of 1995

Appellants: T.N. Godavarman Thirumulpad Vs. Respondent: Union of India (UOI) and Ors.Decided

On: 26.09.2005

Hon'ble Judges:

Y.K. Sabharwal, Arijit Pasayat and S.H. Kapadia, JJ.


Catch Words

Acts/Rules/Orders:

Forest (Conservation) Act, 1980 - Section 2; Environment (Protection) Act, 1986 - Section 3, 3(2),

3(3), 4 and 5; Water (Prevention and Control of Pollution) Act, 1974; Air (Prevention and Control of

Pollution) Act, 1981; Wild Life (Protection) Act, 1972 - Sections 18, 26A and 35; Comptroller and

Auditor-General (Duties, Powers and Conditions of Service) Act, 1971 - Sections 10, 11, 12, 13, 14,

15, 16, 17, 18, 19 and 20; Bombay Public Trust Act, 1950 - Sections 57, 58 and 66; Indian Forest Act,

1878 - Sections 11, 20, 23, 25, 29, 30, 35 and 39; Indian Forest Act, 1927; Constitution of India -

Articles 14, 21, 48A, 51A, 110, 110(1), 195, 199, 199(1), 266, 266(1), 266(2), 283, 284, 294 and 295;

Environmental Law

Cases Referred:

Ratilal Panachand Gandhi v. State of Bombay and Ors., 1954 SCR 1055; M.C. Mehta v. Kamal Nath

and Ors., Hindustan Motors Ltd. and Anr. v. N. Siva Kumar and Anr., (2000) 10 SCC 664

JUDGMENT

Y.K. Sabharwal, J.

Natural resources are the assets of entire nation. It is the obligation of all concerned including Union

Government and State Governments to conserve and not waste these resources. Article 48A of the

Constitution of India requires the State shall endeavour to protect and improve the environment and

to safeguard the forest and wild life of the country. Under Article 51A, it is the duty of every citizen

to protect and improve the natural environment including forest, lakes, rivers and wild-life and to

have compassion for living creatures.

In the present case, the question is about conservation, preservation and protection of forests and

the ecology. When forest land is used for non-forest purposes, what measures are required to be

taken to compensate for loss of forest land and to compensate effect on the ecology, is the main

question under consideration.

Forests are a vital component to sustain the life support system on the earth. Forests in India have

been dwindling over the years for a number of reasons, one of it being the need to use forest area

for development activities including economic development. Undoubtedly, in any nation

development is also necessary but it has to be consistent with protection of environments and not at

the cost of degradation of environments. Any programme, policy or vision for overall development

has to evolve a systemic approach so as to balance economic development and environmental

protection. Both have to go hand in hand. In ultimate analysis, economic development at the cost of

degradation of environments and depletion of forest cover would not be long lasting. Such

development would be counter productive. Therefore, there is an absolute need to take all

precautionary measures when forest lands are sought to be directed for non forest use.

The point in issue is whether before diversion of forest land for non- forest purposes and

consequential loss of benefits accruing from the forests should not the user agency of such land be

required to compensate for the diversion. If so, should not the user Agency be required to make

payment of Net Present Value (NPV) of such diverted land so as to utilize the amounts so received

for getting back in long run the benefits which are lost by such diversion? What guidelines should be

issued for determination of NPV? Should guidelines apply uniformly to all? How to calculate NPV?

Should some projects be exempted from payment of NPV? These are the main aspects which require

examination and determination in the backdrop of various legislations which we would presently

notice.

The legislature to provide for conservation of forest and for matters connected therewith or ancillary

or incidental thereto enacted the Forest (Conservation) Act, 1980 (for short, the 'FC Act'). It

postulates that no State Government or other authority shall make, except with the prior approval

of the Central Government, any order directing that any forest land or any portion thereof may be

used for any non-forest purpose. The Central Government under the FC Act has been empowered to

constitute a Committee to advice it with regard to grant of approval. Under Section 2 of the Act the

question of use of any forest land for non-forest purposes and any other matter connected with the

conservation of forest may be referred to such a committee by the Central Government under the

FC Act. The contravention of any of the provisions of Section 2 has been made an offence.

Noticing the decline in environment quality due to increasing pollution, loss of vegetal cover and

biological diversity, excessive concentrations of harmful chemicals in the ambient atmosphere and in

food chains, growing risks of environmental accidents and threats to life support system, the

Environment (Protection) Act, 1986 (for short, the 'EP Act') has been enacted. It has been noted in

the Statement of Objects and Reasons that although there are existing laws dealing directly or

indirectly with several environmental matters, it is necessary to have a general legislation for

environmental protection. Existing laws generally focus on specific types of pollution or on specific

categories of hazardous substances. Some major areas of environmental hazards are not covered.

There also exist uncovered gaps in areas of major environmental hazards. There are inadequate

linkages in handling matters of industrial and environmental safety. Control mechanisms to guard

against slow, insidious build up of hazardous substances, especially new chemicals, in the

environment are weak. Because of a multiplicity of regulatory agencies, there is need for an

authority which can assume the lead role for studying, planning and implementing long-term

requirements of environmental safety and to give direction to, and co-ordinate a system of speedy

and adequate response to emergency situations threatening the environment. The EP Act was,

therefore, enacted to provide for protection and improvement of environment and for matters

connected therewith. The Central Government has been given wide powers to take measures to

protect and improve the environment as provided under Section 3 including the power to constitute

an authority or authorities 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

the Act and for taking measures with respect to such of the matters referred to in sub-section (2) of

Section 3 as may be mentioned in the order and subject to the prejudice and control of the Central

Government. Section 5 of the EP Act empowers the Central Government, in exercise of its powers

and performance of its function under the Act, to issue directions in writing to any person, officer or

any authority and such person, officer or authority shall be bound to comply with such directions.

The Central Government has the power to direct the closure, prohibition or regulation of any

industry, operation or process or stoppage of regulation of the supply of electricity or water or any

other service.

Parliament has also enacted enactments to prevent and control water pollution and air pollution

[The Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of

Pollution) Act, 1981].

A statement was placed before this Court by the Central Government showing the position as on

20th March, 2000 of the cases approved for diverting forest lands, stipulation for compensatory

afforestation under the FC Act and the compensatory afforestation done, funds to be utilized and

actually utilized. The Court noted the dismal situation as there was a shortfall to the extent of 36% of

total afforestation compensatory or otherwise afforestation. It further noted that though funds had

been realized by all the States in connection with such afforestation, a very large number of States

had spent 50% or less amount on afforestation. In this background, taking suo moto action, notices

were directed to be issued to the States mentioned in the Order dated 17th April, 2000 to explain as

to why moneys realized have not been spent on carrying out afforestation.

On 23rd November, 2001, after considering the affidavits that had been filed, it was noted that large

sums of money had been realized by various States from the user-agency to whom permits were

granted to use forest land for non-forest purposes. The moneys were paid by user agencies to the

State Governments for compensatory afforestation but the utilization was only about 83% of the

funds actually realized by the State Governments, the shortfall being of nearly Rs.200 crores.

The Ministry of Environment and Forests (MOEF) was directed to formulate a scheme providing that

whenever any permission is granted for change of use of forest land for non-forest purposes and one

of the conditions of the permission is that there should be compensatory afforestation, then the

responsibility of the same should be that of user- agency and it should be required to set apart a

sum of money for doing the needful. In such a case the State Government will have to provide or

make available land on which reforestation can take place and this land may have to be made

available either at the expense of the user-agency or of the State Government, as the State

Government may decide. It was decided that the scheme shall ensure that afforestation takes place

as per the permissions which are granted and there should be no shortfall.

The scheme was submitted by MOEF alongwith an affidavit dated 22nd March, 2002.

The Central Empowered Committee (CEC) on consideration of relevant material including the

scheme submitted by MOEF made its report (IA 826) containing recommendations dated 9th August,

2002. The report, taking note of the present system of compensatory afforestation as per guidelines

issued by MOEF from time to time under the FC Act, the procedure for receipt and utilization of

funds for compensatory afforestation, activities permissible under compensatory afforestation,

adequate compensation for loss of forest land - recovery of Net Present Value, funds for catchment

area, treatment plant and involvement of user- agency for compensatory afforestation, made the

following recommendations :

(a) in addition to the funds realized for compensatory afforestation, net present value of the forest

land diverted for non- forestry purposes shall also be recovered from the user agencies, while

according approval under the Forest (Conservation) Act, 1980;

(b) a 'Compensatory Afforestation Fund' shall be created in which all the monies received from the

user-agencies towards compensatory afforestation, additional compensatory afforestation, penal

compensatory afforestation, net present value of forest land, Catchment Area Treatment Plan funds,

etc., shall be deposited. The rules, procedure and composition of the body for management of the

Compensatory Afforestation Fund shall be finalized by the Ministry of Environment & Forests with

the concurrence of Central Empowered Committee within one month;

(c) the funds received from the user-agencies in cases where forest land diverted falls within

Protected Areas i.e. area notified under Section 18, 26A or 35 of the Wild Life (Protection) Act, 1972,

for undertaking activities related to protection of biodiversity, wildlife, etc., shall also be deposited

in this Fund. Such monies shall be used exclusively for undertaking protection and conservation

activities in protected areas of the respective State/UT;

(d) the amount received on account of compensatory afforestation but not spent or any balance

amount lying with the State/UT or any amount that is yet to be recovered from the user agency shall

also be deposited in this Fund;

(e) besides artificial regeneration (plantations), the funds shall also be utilized for undertaking

assisted natural regeneration, protection of forests and other related activities. For this purpose, site

specific plans should be prepared and implemented in a time bound manner;

(f) the user agencies especially the large public sector undertakings such as Power Grid Corporation,

NTPC, etc., which frequently require forest land for their projects should also be involved in

undertaking compensatory afforestation by establishing Special Purpose Vehicle. Whereas the

private sector user-agencies may be involved in monitoring and most importantly, in protection of

compensatory afforestation. Necessary procedure for this purpose would be laid down by the MOEF

with the concurrence of the Central Empowered Committee.

(g) Plantations must use local and indigenous species since exotics have long term negative impacts

on the environment; and

(h) an independent system of concurrent monitoring and evaluation shall be evolved and

implemented through the Compensatory Afforestation Fund to ensure effective and proper

utilization of funds.

The aforesaid report, inter alia, notes that there was general consensus amongst the States/Union

Territories that the present practice of concentrating only on artificial regeneration through

plantations should be dispensed with as it does not adequately compensates the loss of natural

forest and that a part of the fund should also be used for assisted natural regeneration wherein the

natural forests are allowed to regenerate and grow by undertaking silvicultural and cultural

operations such as fire tracing, singalling of seedlings, protection, etc. These activities help in

regenerating the rootstock which may exists in the degraded forests. Besides, this helps in restoring

the natural forests, which is not possible through plantations. It also noted that to compensate for

the loss of tangible as well as intangible benefits flowing from the forest lands which has been

diverted for non-forest use, the NPV of such land is being recovered from the user agency in the

States of Madhya Pradesh, Chhattisgarh and Bihar. In the states of Madhya Pradesh and

Chhattisgarh, the NPV is being recovered at the rate of Rs.5.80 lac per hectare to Rs.9.20 lac per

hectare of the forest land depending upon the quality and density of the forest land diverted for

non-forestry use. The underlying principle for recovery of NPV was that the plantations raised under

the compensatory afforestation scheme could never adequately compensate for the loss of natural

forests as the plantations require more time to mature and even then they are a poor substitute to

natural forest. It noted that States/Union Territories as well as MOEF are of the view that in addition

to the funds realized for compensatory afforestation, the NPV of the forest land being directed for

non-forestry purposes should also be recovered from the user-agencies.

The MOEF, in principle, accepted the aforesaid recommendations of CEC. The order dated 29th

October, 2002 notices this fact. Further noticing that no other State had filed any response to the

report of CEC, the Court presumed that the State Governments were also not opposed to the said

report and have accepted the same in the same manner as Union of India. On detailed examination

of the report, the recommendations of CEC were accepted and Union of India was directed to frame

comprehensive rules with regard to the constitution of a body and management of the

compensatory afforestation funds in concurrence with the CEC. It was directed that the

compensatory afforestation funds which had not yet been realized by the States shall be transferred

to the aforesaid body by respective States and the user agencies within six months of its

constitution. In addition, while according approval under the FC Act for change in user, the user-

agency shall also pay into the said fund, the NPV of forest land diverted for non-forest purposes at

the rate of Rs.5.80 lac per hectare to Rs.9.20 lac per hectare of forest land depending upon the

quality and density of the land in question converted for non- forest use. The amount was subject to

upward revision by the MOEF in consultation with CEC as and when necessary. The aforesaid

recommendations of CEC were accepted.

An application (I.A.No.1046) was filed by the MOEF, inter alia, seeking directions that the NPV

calculation shall be part of the detailed project report submitted to it for a forestry clearance under

the FC Act. During the course of hearing, learned Solicitor General informed this Court that the

Government was agreeable to the suggestions of CEC that money received from user-agencies for

compensatory afforestation fund should be kept in an interest bearing account, though initially it

had some reservations about it. Reference has also been made in the application about exemption

being granted to some projects from payment of NPV, an aspect which we would consider later at an

appropriate stage so also the basis of the calculation of the NPV. We may, however, note that

although in the application it was stated that the format issued by the World Bank for calculation for

NPV for the projects shall be the basis of its calculation, the learned Solicitor General stated that he

was not relying upon the said format. Regarding the mining projects, the application mentions that

there has to be difference in approach for mineral of high volume and low volume and low value and

minerals of high value and low volume. It is stated that levying of flat rates of NPV per hectare basis

will, therefore, not be rational. The application states that in case of mining, NPV should be

calculated at the rate of 10% for the major minerals and 5% for the minor minerals to be levied on

the annual royalty. An application (IA 1047) has also been filed by the Ministry of Mines,

Government of India taking similar pleas as are taken in IA 1046 seeking directions that in mining

NPV may be calculated at the rate of 10% and 5% as above noted.

Now, we may refer to Notification dated 23rd April, 2004 issued by MOEF in exercise of the powers

conferred by sub-section (3) of Section 3 of the EP Act constituting an authority known as

Compensatory Afforestation Fund management and Planning Authority (hereinafter referred to as

'CAMPA') for the purpose of management of money towards compensatory afforestation, NPV and

any other money recoverable in pursuance of this Court's order and in compliance of the conditions

stipulated by the Central Government while according approval under the FC Act for non-forestry

uses of the forest land. The Executive Body of the Authority comprises of the following:

"(i)��

Director General of Forests and��

��Special Secretary, Ministry of

�� Environment and Forests, Government

�� of India

-- Chairperson

(ii)��

Addl.Director General of Forests��

��(Forests) Ministry of Environment and

��Forests, Government of India

-- Member

(iii)��

Addl.Director General of Forests��

��(Wildlife)

-- Member

(iv)��

Inspector General of Forests (Forest��

��Conservation), Ministry of Environment�

��And Forests, Government of India

-- Member

(v)��

Joint Secretary and Financial Advisor,��

��Ministry of Environment and Forests,

�� Government of India

-- Member

(vi)��

Chief Executive Officer (CEO)

-- Member

(vii)��

A professional ecologist, not being from��

��The Central and State Government, for

�� A period of two years at a time, for up

��Two consecutive terms."

-- Member

��

The powers and functions of the Executive Body are:

"(a) deployment of staff on contractual basis or on deputation;

(b) financial procedure;

(c) delegation of financial or administrative powers;

(d) other day-to-day working in respect of receipts of funds;

(e) investment of funds;

(f) expenditure on establishment and other overheads including office accommodation subject to

the approval of the annual budget by the Governing Body."

The management of the fund is provided in clause 6.3 and the disbursement of the fund in clause 6.4

of the Notification. These clauses read as under:

"6.3 Management of the Fund:

(i) The amount collected by the CAMPA shall be invested in Reserve Bank of India, Nationalized

Banks, Post Office, Government Securities, Government Bonds and deposits.

(ii) The non-recurring as well as recurring cost for the management of CAMPA including the salary

and allowances payable to its officers and staff shall be met by utilizing a part of the income by way

of accused interest on the funds invested by the CAMPA excluding income from funds received as

per para 6.2(ii).

(iii) The expenditure incurred on independent monitoring and evaluation shall be borne by the

CAMPA out of the income by way of interest on the funds invested by the CAMPA excluding income

from funds received as para 6.2(iii).

(iv) The CAMPA shall get the annual accounts audited internally as well as externally through

chartered accountant(s) who are on the panel of the Comptroller and Auditor-General of India and

the auditor(s) shall be selected on the approval of the Governing Body.

6.4 Disbursement of Funds:

(i) The money received for compensatory afforestation, additional compensatory afforestation may

be used as per the site specific schemes received from the States and Union Territories along with

the proposals for diversion of forest land under the Forest (Conservation) Act, 1980.

(ii) The money received towards Net Present Value (NPV) shall be used for natural assisted

regeneration, forest management, protection, infrastructure dev elopement, wildlife protection and

management, supply of wood and other forest produce saving devices and other allied activities.

(iii) Monies realized from the user agencies in pursuance of the Hon'ble Supreme Court's order or

decision taken by the National Board for Wildlife involving cases of diversion of forest land in

protected areas shall form the corpus and the income therefrom shall be used exclusively for

undertaking protection and conservation activities in protected areas of the States and the Union

Territories and in exceptional circumstances, a part of the corpus may also be used subject to prior

approval of the CAMPA.

(iv) CAMPA shall release monies to concerned State and Union Territory in predetermined

installments through the State Level Management Committee as per the Annual Plan of Operation

(APO) finalized by the concerned State and the Union Territory.

(v) The monies received in CAMPA from a State or the Union Territory as per para 6.2 and the

income thereon after deducting expenditure incurred by the CAMPA on its establishment cost,

monitoring and evaluation on a prorate basis shall be used only in that particular State or the union

Territory."

Clause 6.6 provides for other functions and reads thus:

"(i) The CAMPA may establish Special Purpose Vehicles (SPV) for undertaking compensatory

afforestation particularly by involving large public sector undertakings which frequently require

forests and for their projects, in consultation and as far as possible with the concurrence of the CEC.

(ii) The CAMPA may also consider evolving new mechanism to generate additional sources of fund

for forest conservation works and to create capacity and data base for better conceptualization and

management of fund."

Having regard to the nature of the functions of the Executive Body of the CAMPA, we find substance

in the suggestion of learned Amicus Curiae that there should be more involvement of NGOs by

including in the Executive Body, the conservationists, environmentalists, economists and experts in

forestry. We are of the view that the Executive Body deserves to be expanded as, presently, only one

professional ecologist is its member, remaining all being officers of the Government. We may note

here that a forthright and fair stand was taken by the learned Solicitor General not only in regard to

the constitution of CAMPA but on other aspects also, keeping in view the non-adversarial nature of

the litigation. Learned Solicitor General submitted that the Government is committed to conserve

the forest and protect the environments, and would implement, in letter and spirit, the directions

issued by this Court.

In view of above, we direct that clause 2.2 shall be suitably amended so as to include two more

environmentalists, one of whom may be expert in the field of forest and the other in the field of

forest economy development. These members shall be included in the Executive Body in

consultation with the Chairperson of the CEC.

Regarding clause 6.3(iv), it was suggested that there should be corporate accounting based on

double entry system and auditing should be conducted by the Comptroller and Auditor-General

(CAG). We see substance in this suggestion as well.

Clause (v) in 6.4 provides that the monies received in CAMPA shall be used only in that particular

State or Union Territory. The clause seems to be too rigid. Many a times, the effect of degradation of

environment or depletion of forest can be felt more in the adjoining area which may be in a different

State or Union Territory. The effect of environmental degradation cannot be restricted to a

particular area. The impact cannot be limited to the place of origin. Therefore, we direct that a

suitable modification of the clause shall be made so as to provide that ordinarily expenditure shall be

incurred in the particular State or Union Territory but leaving it to the discretion of the CAMPA to

also incur expenditure in the State or Union Territory other than the one mentioned in clause 6.2 if it

considers it necessary.

Clause 6.6 which by use of the word 'may' leaves it to the discretion of the CAMPA to establish

Special Performance Vehicle (SPV) for undertaking compensatory afforestation deserves to be

amended so as to substitute the word 'may' by the word 'shall' so that the regeneration is done by

some SPV in specified areas.

Now, we come to the question of the guiding principle to be laid for determining the NPV. Reference

was made to opinions of various experts laying down as to what is the concept of NPV and how it is

to be calculated. The question is also about the legal and jurisdictional basis to levy NPV. Most of the

States did not object to the recovery of the NPV from the user-agency but strenuously urged that

since the land under the forest belongs to the State, the amount deposited by the user-agency as

NPV shall be paid to them. It was also contended on behalf of the States that there should be no

NPV on degraded forest. The further submission was that all public utility projects shall be exempted

from payment of NPV. On the other hand, relying upon the principles of inter-generational equity

and sustainable development, Mr. Harish Salve, learned senior counsel and Amicus Curiae

contended that forest is a part of eco-system and, therefore, the value to be put and calculated is

not only on trees and leaves but the basis has to be the preservation of bio-diversity. It is submitted

that NPV is to be levied and collected not because property rights of the States are affected but on

account of effect on ecology by conversion of forest land for non-forest purpose. Further, Mr. Salve

submits that the basis for calculation of NPV should be the economic value, spread over a period of

50 years, which would be regenerational value for forest regeneration to be taken into account as

opposed to restoration value, i.e., financial value. Regarding legal and jurisdictional basis to levy

NPV, Mr. Salve contended that there are various legal principles which act as source of power to levy

NPV. In this regard, reference has been made to provision of the FC Act, EP Act and Forest Policy of

1988. It is contended that these enactments and the policy are the measures taken by the legislature

and the Government to discharge the constitutional obligation to protect the environments.

Reliance is also placed upon the doctrine of public trust, which learned counsel submits is a

constitutional doctrine.

First, we may consider the meaning of NPV and determine what is NPV.

The NPV is the present value (PV) of net cash flow from a project, discounted by the cost of capital.

Forestry is a public project. It is important to bear in mind that a benefit received today is worth

more than that received later. The benefit received today is in fact 'cost incurred' today. Time value

of the cash inflow/outflow is important in investment appraisal. NPV is a method by which future

expenditures (costs) and benefit are levelised in order to account for the time value of money. The

object behind NPV is to levelise costs. What is the value of Rupee today would not be the value of

Rupee say 50 years later. For example, let us have the starting point of value of Rupee in India in the

year 2005 and analyse it with the value of Rupee that may be in the year 2050. Cost incurred or to

be incurred in 2050 have to be discounted by using appropriate parameters like rate of discount,

gestation period, ratio of deflators to GDP. Therefore, expenses incurred in each year between say

2005 and 2050 have to be brought down to their present values by using appropriate discount rate

in the NPV.

The project like forestry has long gestation period of 40-50 years. It goes through cost cycles each

year depending upon inflation, rate of interest, internal rate of return etc. Therefore, costs for the

year 2005 will differ from the cost of 2006 and cost of 2006 will differ from that of the year 2007 and

so on and so forth. However, this constitutes what is called as conventional method of accounting

cost which does not take into account social and economic cost of diversion of forest.

Cost is a function of the discount rate (a measure of the value of capital) used. Under NPV, all costs

are discounted to some reference date which we have taken as 2005 for illustration. The total cost

reckoned at this reference date is the sum of present value or future value of costs discounted to the

year 2005. Similarly, one can calculate the present value of the revenues from the expected benefits

of forest regeneration.

The question then is why charge NPV. In the case of a conventional project like Hydro-electric

Project, the accounting procedure is normally based on Return On Investment (ROI) in which the

unit cost of energy includes return on capital, investment, depreciation of capital, annual fuel cost

and operational and maintenance costs. However, ROI excludes the time value of money. It also

excludes the gestation period of the project. Therefore, we have the NPV method which discounts

future costs and future benefits by use of appropriate discount rate and brings down such costs and

benefits to the reference date which in the present case has been assumed to be the year 2005.

The question, which we have to answer, is concerning the relevance of fixing appropriate discount

rate in valuation of the costs and benefits arising from forestry as a project.

The value of any asset is discounted by present value of the economic benefits it will generate in

future years. For example, timber asset value is the discounted future stumpage price for mature

timber after deducting costs of bringing the timber to maturity. NPV is one of the methods for

valuation of standing timber. The general expression V for the value of an asset, in the base year O,

is simply the sum of the net economic benefits it yields in each year over the life time, T, of the

Asset, discounted to the present value by the discounted rate.

The current method of valuing public sector projects, like forestry, has become contentious as public

sector undertakings agrees for lower discount rate on account of long gestation period. However,

the flaw with this argument is that the low rate of return is computed without including the

intangible or environmental impacts/benefits emanating from forest.

How does one value the intangibles? There are several methods, viz, opportunity cost, replacement

cost, travel cost, contingent value method (CVM) and social benefit cost analysis (SBCA).

SBCA can be applied to the evaluation of environmental impacts of forestry projects. Here, one must

appreciate that the environmental outputs from forests appear as public goods for which there is no

market. Various environmental outputs can be classified into this category, namely,

Flood Control Benefits

Water Production

Soil Conservation

Outdoor Recreation

Biodiversity & Conservation

Habitat

Air Purification

The problem in valuation of the above outputs is: allocation of fixed costs according to the

contribution of each product in total revenue. This is because except contribution of timber product,

contribution of the other above-noted outputs is not known, especially intangible outputs. However,

under SBCA, benefits from each of the above environmental outputs are identifiable. For example,

flood control benefits arise because of the role of forests as stream regulator. Similarly, valuation

method for each of the above outputs differs. In valuing biodiversity, CVM is useful. SBCA is helpful

in placing monetary value on carbon storage on air purification.

The point is that for each of the above functions of the forests, different methods of valuation have

to be applied. Various methods have been used to estimate the value of environment like CVM,

Opportunity Cost Method, Travel Cost Method, SBCA etc. It would be appropriate if body of experts

examine the aspect and report to this Court suggesting the best method depending on factors like

gestation period, rate of discount (interest), density of the forest, social benefits of the project

undertaken by PSU etc. They will take into account economic values associated with forests, viz.,

direct use values, indirect use values such as value of environmental benefits from the forest, option

values and existence value.

The above discussion shows that NPV helps levelising the costs of public projects like forestry. It is an

important tool of SBCA. Under SBCA, benefits from each of the above environmental outputs are

identifiable. Hence, applying NPV, one can allocate levelised costs according to the contribution of

each product in the total revenue. It is important to bear in mind that a benefit or cost received or

incurred now is worth more than that received or incurred later. Therefore, using the appropriate

discount rate helps to aggregate marginal benefits and costs. The choice of interest rate depends

upon time preference. For public project, such as forestry, a social discount rate, which indicates

time preference of the society, should be used.

Forest sustainability is an integral part of forest management and policy that also has a unique

dominating feature and calls for forest owners and society to make a long-term (50 years or longer)

commitment to manage the forest for future generation. One of the viewpoints for sustaining forest

is a naturally functioning forest ecosystem. This view point takes a man and nature relationship to

the point of endorsing to, the extent possible, the notion of letting forest develop and process

without significant human intervention. A strong adoption of the naturalistic value system that

whatever nature does is better than what humans do, this is almost the "nature dominates man"

perspective. Parks and natural reserve creations; non-intervention in insect, disease and fire process;

and reduction of human activities are typical policy situation. This viewpoint has been endorsed by

1988 Forest Policy of Government of India.

Yet another viewpoint recognizes the pragmatic reality faced by the governments and the

administrative, namely, trees don't vote while people do. Some of the criteria reflecting key

elements of ecological, economic and social sustainability are:

1. Conservation of biological diversity.

2. Maintenance of productive capacity of forest ecosystems.

3. Maintenance of forest ecosystem health and vitality.

4. Conservation and maintenance of soil and water resources.

5. Maintenance of forest contribution to global carbon cycles.

6. Maintenance and enhancement of long-term multiple socioeconomic benefits to meet the needs

of societies.

7. Legal, institutional and economic framework for forest conservation and sustainable

management.

An expert dealing with principles and applications of forest valuation, on the aspect of value of

inputs and outcomes and conditions, says :

"Decision making in forest management requires that we understand the relative values of inputs,

outcomes, and conditions. Cost values for inputs such as labour, capital, interest, supplies, legal

advice, trades, and other management activities as well as the market value of existing timber

stands are relatively easy to obtain. Outcomes or resulting condition values are more difficult, but

we need measures of the values of timberland, recreation, water, wildlife, visual amenities,

biodiversity, environmental services, and ecological process to help guide management decisions. By

understanding market, social and other values of forests, we can better allocate our scarce and

valuable resources to attain the desired mix of outcomes and conditions."

The emphasis is on ecosystem, management philosophy that has greater emphasis on integration,

biological diversity and ecological processes.

In respect of working economic values of the outcome, it is said:

"In real world forest management situations, decision makers are faced with several alternatives and

potentially large sets of criteria related to the ecological, economic and social impacts of these

alternatives. It would be very easy to generate a nearly incomprehensible table that documented

every physical, biological, economic, and social outcome and condition resulting from each

management alternative. Such information could include outcome levels for water yield, sediment

production, and timber growth; population trends for important wildlife species; and recreation use

for backcountry and developed recreation sites. Similarly, information on the economic value of

these outcomes can be estimated by means of the methods discussed in chapter 8 and added to our

impact table. To this avalanche of information, we could add the impacts on the social well-being of

local and regional communities. The forest management analyst can easily overwhelm the decision

makers and stakeholders with information."

Dealing with fundamental of decision analyses to achieve ecological, economic and social goals, it is

said that what is to be broadly kept in view is:

"Ecological and environmental goals are important to forest managers, landowners, and their

stakeholders, we need information about how decision alternatives affect such goals. These goals

can be broadly stated as

1. Maintaining and enhancing forest productivity

2. Conservation of biological diversity

3. Protecting and enhancing environmental conditions."

The aforesaid also shows that NPV as a tool of SBCA is required to be based on Total Economic Value

(TEV). It indicates the components of TEV. It further shows what are the type of agency or experts

which are required to examine these issues.

Dealing with co-relation between economics and environmental management, in 'Environmental

Economics in practice' edited by Mr. Gopal K. Kadekodi in his write up through case studies, answers

the question as to what has economics got to do with environmental management. The author says

that economics is the science of explaining the behaviour of different agents who take part in

production, consumption and distribution activities in the economy and make decisions regarding

the use of resources. That, environmental economics focuses on market and non-market behaviour

of different agents in the society regarding natural and environmental resources, viewed from

intergenerational, inter- temporal and different institutional frameworks. (Emphasis supplied by us)

It is further stated that one of the major branches of economic theory is the 'theory of value'.

Economic theory always makes a distinction between value and price. Answering the question as to

why value natural resources specifically, it is stated that one reason is that there is no market for

ecosystem services such as nutritional cycle, carbon sequestration, watershed functions,

temperature control, soil conservation etc. It is also stated that assuming there are markets, they do

not do their job well. This market may be regulated one. There may be restrictions on entry as a

result of licensing or rationing introduced by the Government. For the above reasons, it is concluded

that valuation beyond the present is necessary and for natural resource Accounting NPV method is a

must.

Mr. Salve advocates for Total Economic Value (TEV) on the ground that TEV expresses the full range

of value or benefits - both tangible and intangible. Basically, it is understood that natural and

environmental resources provide several 'use values' and 'non-use values' to enhance human

welfare and provide sustainability to all lives (often termed as anthropogenic values). Conceptually,

it is the sum of use values (UV) and non-use value (NUV) which constitutes the TEV. Further

elaborations UV, option value (OV) non-use value (NUV) etc. have been given. The UV, it is stated,

can be further broadly classified into three groups� direct, indirect and option values. Direct Use

Values (DUV) refer to the current use (consumption) of the resources and services provided directly

by natural and environmental resources. Examples are the use of timber and non- timber forest

products. Recreation (tourism to wildlife sanctuaries or Himalayan Glaciers, mountains), education,

research etc., are examples of direct non-consumptive use values. Indirect Use Values (IUV)

generally are referred to the ecological functions that natural resource environments provide. It can

be broadly classified into three groups - watershed values, ecosystem services and evolutionary

processes. The Optional Value (OV) is associated with the benefits received by retaining the option

of using a resource (say a river basin) in the future by protecting or preserving it today, when its

future demand and supply is uncertain. Take the example of the Narmada river basin.

It is not necessary to delve further in this matter since ultimately it would be for the experts to

examine and assist this Court as to the Model to be adopted for valuation, namely, TEV, CVM, SBCA

etc. It is for the experts to tell us as to what NPV should be applied in case of mines and different

types of forests. We may only note that basis of these valuations is the theory of sustainable

development, i.e., development that meets the needs of the present without compromising with the

ability of future generations to meet their own needs. Despite various elaborations, definition of

sustainable development, though very old, still is widely accepted world over and has been

reiterated by this Court in catena of cases.

Regarding the parameters for valuation of loss of forest, we may only note as to what is stated by

Ministry of Environment and Forests, Government in its handbook laying down guidelines and

clarifications upto June 2004 while considering the grant of approval under Section 2 of the FC Act.

Dealing with environmental losses (soil erosion, effect on hydrological cycle, wildlife habitat,

microclimate upsetting of ecological balance), the guidelines provide that though technical judgment

would be primarily applied in determining the losses, as a thumb rule, the environmental value of

one hectare of fully stocked forest (density 1.0) would be taken as Rs.126.74 lakhs to accrue over a

period of 50 years. The value will reduce with density, for example, if density is 0.4, the value will

work out at Rs.50.696 lakhs. So, if a project which requires deforestation of 1 hectare of forest of

density 0.4 gives monetary returns worth over Rs.50.696 lakhs over a period of 50 years, may be

considered to give a positive cost benefit ratio. The figure of assumed environmental value will

change if there is an increase in bank rate; the change will be proportional to percentage increase in

the bank rate. Ms. Kanchan Chopra, while conducting the case study of Keoladeo National Park in

respect of economic valuation of biodiversity at the institute of economic growth, Delhi as a part of

the Capacity 21 project sponsored by the UNDP and MOEF, Government of India examined the

question as to what kind of values are to be taken into consideration. As per the study, different

components of biodiversity system possess different kinds of value (1) a commodity value (as for

instance the value of grass in a park), (2) an amenity value (the recreation value of the park) and/or

(3) a moral value (the right of the flora and fauna of the park to exist). It is recognized that it is

difficult to value ecosystem, since it possesses a large number of characteristic, more than just

market oriented ones. It also leads to the need to carry out bio-diversity valuation both in terms of

its market linkage and the existence value outside the market as considered relevant by a set of pre-

identified stakeholders. It is, however, evident that while working out bio-diversity valuation, it is

not trees and the leaves but is much more. Various techniques for valuing biodiversity that have

been developed to assess the value of living resources and habitats rich in such resources have been

considered by the author for her case study while considering the aspect of value, their nature and

stakeholders interest. In so far as the value of ecology function in which the stakeholders or

scientists, tourists, village residents, non-users, the nature of value is - regulation of water, nutrient

cycle, flood control. These instances have been noted to highlight the importance of the biodiversity

valuation to protect the environments. The conclusions and the policy recommendations of the

author are:

"Biodiversity valuation has important implications for decision making with respect to alternative

uses of land, water and biological resources. Since all value does not get reflected in markets, its

valuation also raises methodological problems regarding the kinds of value that are being captured

by the particular technique being used. Simultaneously, in the context of a developing country, it is

important to evolve methods of management that enable self-financing mechanisms of

conservation. This implies that biodiversity value for which a market exists must be taken note of,

while simultaneously making sure that the natural capital inherent in biodiversity rich areas is

preserved and values which are crucial for some stakeholders but cannot be expressed in the market

are reflected in societal decision making.

A focus on both the above aspects is necessary. It is important to take note of the nature of market

demand for aspects of biodiversity that stakeholders, such as tourists, express a revealed preference

for by way of paying a price for it. Simultaneously, it is important to examine the extent to which a

convergence or divergence exists between value perceptions of this and other categories of

stakeholders. It is in this spirit that two alternative methodologies are used here to arrive at an

economic valuation of biodiversity in Keoladeo National Park. The travel-cost methodology captures

the market-linked values of tourism and recreation. It throws up the following policy implications :

1. Keeping in mind the location of the park and the consequent joint product nature of its services,

cost incurred locally is a better index of the price paid by tourists. It is found that demand for

tourism services is fairly insensitive to price. A redistribution of the benefits and costs of the park

through an increase in entry fee would not affect the demand for its services.

2. Cross-substitution between different categories of stakeholders can improve the financial

management of the wetland. A part of the proceeds can go to the local management. Also, high-

income tourists, scientists and even non-users with a stake in preservation can pay for or

compensate low-income stakeholders for possible loss in welfare due to limits on extraction and use.

3. However, the limit to such a policy is determined by the number of visitors and their possible

impact on the health of the wetland. Such a constraint did not appear to be operational in the

context of the present park.

Identification and ranking of values of different aspects of biodiversity resources as perceived and

expressed by different categories of stakeholders namely scientists, tourists, local villagers and non-

users is an important object in the process of valuation. In the KNP study, a fair degree of

congruence with respect of ecological function value and livelihood value is discovered to exist in the

perceptions of diverse groups. Stakeholders as diverse as scientists, tourists, local villagers and non-

users give high rankings to these uses."

Next question is to which expert reference shall be made. Counsel for parties agree that Institute of

Medical Economic Growth is an institute of eminence having been set up about half a century

earlier. It has also been pointed out that this Institute is getting regular maintenance and

development grant from Indian Council of Social Sciences research (ICSSR). Further, it appears that

the Institute is also receiving research and training grants from Ministry of Finance, Ministry of

Health and Family Welfare and Ministry of Agriculture, besides National Bank for Agriculture and

Rural Development. We have been informed that eminent faculty members in the institute are

engaged in the field of research and Ms.Kanchan Chopra, (Ph.D. Economics, University of Delhi) is

one such faculty member and her field of specialization is resources and environmental economics,

agriculture and rural development and project evaluation. The matter deserves to be referred to a

committee of experts in respect whereof we will in latter part of the judgment issue appropriate

directions.

Next, we will deal with the contention of Mr. Venugopal who, appearing for State of Kerala,

submitted that the State has no objection to the levy of NPV but the amount so received should

come to the State. Referring to Notification dated 23rd April, 2004 constituting CAMPA, learned

counsel contended that clause 6.4 of the said Notification, which deals with disbursement of the

funds, does not envisage the amount being disbursed to the State Government. Learned senior

counsel also challenged the constitutional validity of the Notification. The contention put forth is

that the Notification does not have any Parliamentary or Legislative control. Referring to various

clauses of the notification, it was contended that fund sought to be created under CAMPA lacks

accountability and puts aside financial control. There is a total lack of financial discipline which,

learned counsel contends, is against the constitutional framework. It was further contended that the

forests vest in the Government; the same are State properties and, therefore, all amounts received

shall go to Consolidated Fund of India or Consolidated Fund of the State or to Public Funds, as the

case may be. Reference has also been made to the provisions of the Comptroller and Auditor-

General (Duties, Powers and Conditions of Service) Act, 1971 (for short, the 'CAG Act') and the

submission is that no provision under the Notification shows that the account can be subjected to

audit under the CAG Act. The contention, in short, is that constitutionally it is not permissible to any

person or authority to hold funds collect on behalf of the Government. This is basis for urging that

the Notification dated 23rd April, 2004 is unconstitutional.

For examining the nature of the fund sought to be regulated by CAMPA, brief reference is necessary

to be made to some of constitutional provisions.

Article 110 in so far as the Parliament is concerned and Article 199 in so far as the State is

concerned, while defining Money Bills make a deeming provision for certain contingencies. Article

110 and Article 199 read as under:

"110. Definition of "Money Bills". -- (1) For the purposes of this Chapter, a Bill shall be deemed to be

a Money Bill if it contains only provisions dealing with all or any of the following matters, namely :--

(a) to (d) ...

(f) the receipt of money on account of the Consolidated Fund of India or the public account of India

or the custody or issue of such money or the audit of the accounts of the Union or of a State; or

�XXX��

XXX�� XXX

199. definition of "Money Bills". --(1) For the purposes of this Chapter, a Bill shall be deemed to be a

Money Bill if it contains only provisions dealing with all or any of the following matters, namely :

(a) to (d) ...

(f) the receipt of money on account of the Consolidated Fund of the State or the public account of

the State or the custody or issue of such money; or"

The contention is that Notification constituting CAMPA shall be deemed to be a Money Bill.

Articles 294 and 295 deal with succession to property, assets, rights, liabilities and obligations in

certain cases as from the commencement of the Constitution of India, providing for vesting of the

properties and assets in the Union and in the States. These articles were referred to contend that

forest is the property and asset of the State.

Article 266 deals with Consolidated Fund of India and of the States. Article 283 deals with custody of

the consolidated funds, contingency funds and the moneys credited to the public accounts. Article

284 deals with other monies received by public servants in courts and postulates the same shall be

paid into the public account of India or the public account of the State, as the case may be.

Article 266 deals with all revenues received by the Government of India, all loans raised by that

Government by the issue of treasury bills, loans or ways and means advances and all moneys

received by that Government in repayment of loans shall form one consolidated fund to be entitled

"the Consolidated Fund of India", and likewise the sum received by Government of State shall form

one consolidated fund to be entitled "the Consolidated Fund of the State". Article 266 stipulates that

all other public moneys received by or on behalf of the Government of India or the Government of a

State shall be credited to the public account of India or the public account of the State, as the case

may be.

Third category of receipt is in terms of Article 284 which is required to be paid into the public

account of India or the public account of the State, as the case may be.

Chapter III of CAG Act deals with duties and powers of the Comptroller and Auditor-General. Section

10 thereof deals with compilation of accounts of Union and the States by CAG. Under Section 11, the

CAG is required to prepare and submit accounts to the President, Governors of State and

Administrators of Union Territories having Legislative Assemblies. Under Section 12, CAG is required

to give information and render assistance to the Union Government and the State Governments.

Section 13 sets out general provisions relating to audit. Under this provision, it shall be the duty of

the CAG to audit all expenditure from the Consolidated Fund of India and of each State and of each

Union Territory having a Legislative Assembly and to ascertain whether the moneys shown in the

accounts as having been disbursed were legally available for and applicable to the service or purpose

to which they have been applied or charged and whether the expenditure conforms to the authority

which governs it; to audit all transactions of the Union and of the State relating to contingency funds

and public account; to audit all trading, manufacturing, profit and loss accounts and balance sheet

and other subsidiary accounts kept in any department of the union or of a State; and in each case to

report on the expenditure, transactions or accounts so audited by him. Section 14 of CAG Act deals

with audit of receipts and expenditure of bodies and authorities substantially financed from Union

or State revenues. Section 15 provides for the functions of CAG in the case of the grants or loans

given to other authorities or bodies. Section 16 deals with audit of receipts of Union or of States and

Section 17 with audit of accounts of stores and stock. Section 18 provides for the powers of CAG in

connection with audit and accounts. The audit of Government companies and corporations by CAG

is dealt with under Section 19. Section 20 is in the nature of a residuary provision providing that

CAG, if requested by the President of India or the Governor of the State or the Administrator of

Union of Territory having a Legislative Assembly to undertake the audit of the accounts of such other

body or authority of which audit has been entrusted to CAG, the CAG shall undertake such audit.

Chapter III shows the responsibility of CAG to conduct audit in the manner provided in the law or on

request made for the audit in the manner provided under Section 20.

Relying on aforesaid constitutional provisions and also of CAG Act, it was contended that the

notification constituting CAMPA is unconstitutional as it does not stipulate that the amounts

collected on behalf of Government shall go to the relevant consolidation fund or to public fund.

Further, no provision has been made for audit under the CAT Act. To examine this contention, it is

necessary to determine the nature of Fund dealt with by CAMPA.

The background under which the fund came to be created has already been noted. Noticing fast

depletion of forests, the fund was ordered to be utilized for protection of forests and environments.

The environments are not the State property and are national asset. It is the obligation of all to

conserve the environments and for its utilization, it is necessary to have regard to the principles of

sustainable development and inter-generational equity.

Reverting now specifically to forests, if it becomes necessary for economic development to use the

same for non-forest purpose, then before grant of permission for diversion of forest land, there

should be some scheme whereunder loss occurring due to such diversion can be made up by

adopting both short term measures as well as long term measures one of it being a regeneration

programme. Natural regeneration is a long process. It requires huge amounts. It requires a policy

and direction. It requires proper use of funds for regeneration of depleted forest and ecology. The

natural resources like forests are in trust with the present generation. In this light, various statutes

noted above have been enacted by the Parliament. Keeping in view the letter and spirit of those

statutes and constitutional provisions, the legality of CAMPA and the power to issue directions for

natural regeneration and utilization of funds is required to be appreciated. The body set up or fund

generated to protect ecology and provide for regeneration cannot in constitutional scheme of things

be considered and treated as a fund under Article 266 or Article 283 or Article 284 of the

Constitution of India. When seen in this light, neither Article 110 nor Article 199 and/or Article 294

or 195

�would have any application. There is an additional reason for the view that NPV will not fall under

Article 110 or 199 or 195 of the Constitution. Our constitution draws a distinct line between a "TAX"

and a "FEE". In case of Ratilal Panachand Gandhi v. State of Bombay and Ors. [1954 SCR 1055], one

of the questions which arose for determination was regarding constitutional validity of Section 58 of

Bombay Public Trust Act, 1950. That section makes it obligatory on every Public Trust to pay to the

Administration Fund a contribution at such time and in such manner as may be prescribed. Under

the rules, the contribution was fixed at the rate of 2% per annum upon the gross annual income of

every Public Trust. Failure to pay such contribution was made liable to penalty under Section 66 of

the Act. It was contended on behalf of the Trustees that the levy of contribution under Section 58

was in substance the levy of a tax, it was beyond the competence of the State legislature to enact

such a provision. This argument was rejected by this Court by holding that the Administration Fund

constituted under Section 57 of Bombay Public Trust Act was a Special Fund which was to be applied

exclusively for payment of charges for expenses incidental to the regulation of Public Trusts and in

carrying into effect the provisions of the Act. Under Section 57 Special Fund vested in the Charity

Commissioner. That Fund was set up from the charges levied on various Trusts in the State. The Fund

was to be managed by the Charity Commissioner. All investments were to be made by the Charity

Commissioner. All disbursements were to be made by him in the manner prescribed by the rules.

The collections of these charges, deployed in the Special Fund, were not merged in the general

revenue, but these collections were earmarked and set apart for the purposes of the Act. This Court

further noticed that the Charity Commissioner and the servants appointed under the Act drew their

salary from the Consolidated Fund of the State. However, this Court observed that Section 57 was

enacted to facilitate the Administration and not with a view to mix up the Fund with the general

revenue collected for government purposes. Therefore, this Court held that Public Trusts

Administration Fund was set up to meet all expenses of the administration of Trust property within

the scheme of the Act and it is to meet such expenses that they levy was made and collections were

effected. Therefore, this Court held that such payments were levied for rendering service which the

State considers beneficial in public interest. In the circumstances, it was held that Section 57 and

Section 58 of the 1950 Act were not ultra vires the State legislature because they did not levy a tax

but they levied a fee which came within Entry 47 of List III of Seventh Schedule to the Constitution,

which reads as under:

"47. Fees in respect of any of the matters in this List, but not including fees taken in any court."

Thus reading Entry 47 with Entry 20 of the same List, the imposition of NPV is a charge or a fee which

falls within Entry 47 read with Entry 20 of List III of Seventh Schedule to the Constitution. The Fund

set up is a part "of economic and social planning" which comes within Entry 20 of List III and the

charge which is levied for that purpose would come under Entry 47 of List III and, therefore, Article

110 is not attracted.

To sustain ecological, economic and social values, in so far as forests are concerned, primarily, it is a

question of Forest Management. In the introduction chapter of Forest Management, Fourth Edition,

co- authored by Lawrence S. Davis, Professor Emeritus, University of California-Brakeley, K. Norman

Johnson, Orgeon State University, Peter S. Bettinger, Orgeon State University and Theodore E.

Howard, University of New Hampshire, authors have said that "forest management remains the

attempt to guide forests toward a society's goals. A forest manager is the catalyst of this effort. As

such, the manager needs an earthy understanding of biological process; a knowledge of animals and

their habitats; an appreciation of streams and their environments; the long- range viewpoint of a

planner; the patience of a labour negotiator, the skills of an administrator; and the alertness,

flexibility and all-round resourcefulness of a successful business executive. Above all, the forest

manager requires a genuine sense and feeling for the forest as an entity." This objective is to be

borne in mind while considering the question of ecology as opposed to mere compensatory

afforestation. Compensatory afforestation is only a small portion in the long range efforts in the field

of regeneration. It has been said that recognizing the aforesaid uniqueness while applying the

principles of management is the heart of forest management.

Forest Management planning involves a blend of ecological, economic and social systems with the

economic and social sides of planning often just as complex as the ecological sides. Table 1.1 gives

examples of decisions needed in the management of forest as under :

"Table 1.1

Examples of decisions needed in the management of forests

Type of decision��

Example

Extent and distribution

of Wilderness reserves

Management emphases for��

areas where active management��

will occur��

Big game emphasis, high- intensity timber production, scenic areas

Types of activities allowed��

Timber harvest, prescribed�� fire

Aggregate harvest level over�� time

Evenflow, nondeclining yield

Silvicultural system��

Age structure of forest��

Even-aged, uneven-aged Areas by 10-year age classes

Size and shape of treatment��

units��

Small units versus large units

Spatial pattern of treatment units� ��

Concentrated or dispersed cutting blocks

Protection strategy��

Vertical and horizontal��

diversity/stand density��

Regeneration harvest timing��

Wildfire suppression policy Approach to partial cutting and prescribed burning Rotation age (even-

aged), cutting cycle (uneven-aged)

Regeneration method��

Clearcutting,

clearcutting�� with leave

trees,�� shelterwood,

selection,��

prescribed fire,

natural��

disturbance."

When permission is granted by the Government of India to use the forest land for non-forest

purposes, it is not unconditional. Conditions are attached mainly with a view to protect the

environments and to make good the loss likely to occur by grant of such permission. The payment

into such a fund or imposition of conditions are for the protection of natural resources. The

Notification dated 23rd April, 2004 sets up a body to which payment is made so that the said body

can carry out the statutory and constitutional obligations. Since the amount does not go to the

accounts postulated by Article 283, the said provision shall have no application. Similarly, the

provisions of the CAG Act would also have no application. At the same time, it may be noted that

clause 6.3 stipulates the audit through Chartered Accountants on the panel of CAG. In order to

provide for financial discipline, transparency and accountability, it would be appropriate to provide

for corporate accounting on the principles of double entry system. We are further of the view that

the accounts of the Fund shall be subjected to internal Statutory Audit, the Statutory Auditors to be

taken from the panel of CAG. The internal audit shall be conducted every six months.

The duty to preserve natural resources in pristine purity has been highlighted in M.C. Mehta v.

Kamal Nath and Ors. MANU/SC/1007/1997. After considering the opinion of various renowned

authors and decisions rendered by other countries as well on environment and ecology, this Court

held that the notion that the public has a right to expect certain lands and natural areas to retain

their natural characteristics is finding its way into the law of the land. The Court accepted the

applicability of public trust doctrine and held that it was founded on the ideas that certain common

properties such as rivers, sea-shore, forests and the air were held by the Government in trusteeship

for the free and unimpeded use of the general public. These natural resources have a great

importance to the people as a whole that it would wholly unjustified to make them subject to

private ownership. These resources being a gift of nature, should be made freely available to

everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the

resources for the enjoyment of the general public rather than to permit their use for private

ownership or commercial purposes. It was held that our legal system - based on English common law

- includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural

resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary

of these resources. The State as a trustee is under a legal duty to protect these natural resources.

Summing up the Court said :

"We are fully aware that the issues presented in this case illustrate the classic struggle between

those members of the public who would preserve our rivers, forests, parks and open lands in their

pristine purity and those charged with administrative responsibilities who, under the pressures of

the changing needs of an increasingly complex society, find it necessary to encroach to some extent

upon open lands heretofore considered inviolate to change. The resolution of this conflict in any

given case is for the legislature and not the courts. If there is a law made by Parliament or the State

Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of

its powers of judicial review under the Constitution. But in the absence of any legislation, the

executive acting under the doctrine of public trust cannot abdicate the natural resources and

convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory

of the natural resources, the environment and the ecosystems of our country cannot be permitted

to be eroded for private, commercial or any other use unless the courts find it necessary, in good

faith, for the public good and in public interest to encroach upon the said resources."

In view of above, we hold that the natural resources are not ownership of any one State or

individual, public at large is its beneficiary and, therefore, the contention of Mr. Venugopal that the

amount of NPV shall be made over to the State Government cannot be accepted.

The Indian Forest Act was enacted to consolidate the law relating to forests, the transit of forest-

produce and the duty leviable on timber and other forest-produce. The focus of this Act is on the

proprietary rights. Section 3 empowers the State Government to constitute any forest land or waste

land which is the property of the Government or over which the Government has proprietary rights,

or to the whole or any part of the forest produce of which the Government is entitled in a reserved

forest in the manner provided in the Act. As provided in Section 5, no right can be acquired over the

land in respect whereof notification has been issued under Section 4. In the manner provided in

Section 11, the Forest Settlement Officer is empowered to acquire the land. Section 20 provides for

declaration of reserved forest. No right in or over a reserved forest can be acquired, as provided in

Section 23. Acts prohibited in respect of forests have been incorporated in Section 25. Section 29

deals with declaration of protect forest and Section 30 empowers the State Government to issue

notification reserving trees etc. in a protected forest. The power of the State Government for

protection of forest has been provided in Section 35. The power to impose duty on timber and other

forest produce is contained in Section 39 of the Act.

From the above, it can be seen that scheme of 1927 Act is a State management and regulation of the

forest. On the assumption that local communities were incapable of scientific management of forest,

the British Government introduced Forest Policy and Management by setting up a forest department

and enacting the Indian Forest Act, 1878 which was amended from time to time. By passage of time,

it was found that the provisions of the said Act were not adequate and, thus, in order to consolidate

the law relating to forest, the transit of forest produce and the duty leviable for timber and other

forest produce, the Indian Forest Act, 1927 was enacted. To further tighten the management and

regulation, the FC Act of 1980 was enacted. It became necessary for conservation of forest on

realizing that there has been large scale of deforestation which is causing ecological imbalance

leading to environmental deterioration. This led to enactment of the FC Act providing for prohibition

for use of forest land for non-forest purpose by anyone including the State Government or other

authorities except with the prior approval of the Central Government. This legislature was enacted,

as already noted, after Forest and Wildlife were taken out from the State list and placed in the

Concurrent list. At the same time, Article 48A was inserted in the Constitution of India for protection

and improvement of environments and safeguarding forest and wildlife in the year 1977.

The basis objectives leading to the laying down of the National Forest Policy, 1988 may also be noted

and also the need and requirement for its enforcement. This policy was framed on realizing that

1952 Forest Policy for the management of State forest in the country had not halted the depletion of

forests. It was, therefore, considered necessary to evolve a fresh policy for future to lay down new

strategies of forest conservation which had become imperative. Conservation includes preservation,

maintenance, sustainable utilization, restoration and enhancement of the natural environment. The

principal aim of the forest policy is to ensure environmental stability and maintenance of ecological

balance including atmospheric equilibrium which are vital for sustenance of all life forms, human,

animal and plant. The derivation of direct economic benefit must be subordinated to this principal

aim.

The forest policy has a statutory flavour. The non-fulfillment of aforesaid principle aim would be

violative of Articles 14 and 21 of the Constitution. The basic objectives of the Forest Policy, 1988 are:

"2.1 The basic objectives that should govern the National Forest Policy are the following:

-- Maintenance of environmental stability through preservation and, where necessary, restoration of

the ecological balance that has been adversely disturbed by serious depletion of the forests of the

country.

-- Conserving the natural heritage of the country by preserving the remaining natural forests with

the vast variety of flora and fauna, which represent the remarkable biological diversity and genetic

resources of the country.

-- Checking soil erosion and denudation in the catchment areas of rivers, lakes reservoirs in the

interest of soil and water conservation, for mitigating floods and droughts and for the retardation of

silation of reservoirs.

-- Checking the extension of sand-dunes in the desert areas of Rajasthan and along the coastal tracts.

-- Increasing substantially the forest/tree cover in the country through massive afforestation and

social forestry programmes, especially on all denuded, degraded and unproductive lands.

-- Meeting the requirements of fuelwood, fodder, minor forest produce and small timber of the rural

and tribal populations.

-- Increasing the productivity of forests to meet essential national needs.

-- Encouraging efficient utilization of forest produce and maximum substitution of wood.

-- Creating a massive people's movement with the involvement of women, for achieving these

objectives and to minimize pressure on existing forests.

2.2 The principal aim of Forest Policy must be to ensure environmental stability and maintenance of

ecological balance including atmospheric equilibrium which are vital for sustenance of all life forms,

human, animal and plant. The derivation of direct economic benefit must be subordinated to this

principal aim."

It has been recognized that one of the essentials for forest management is the conservation of total

biological diversity, the network of national parks, sanctuaries, biosphere reserves and other

protected areas to be strengthened and extended adequately.

The strategy under the Forest Policy is to have a minimum of one- third of the total land area of the

country under forest or tree-cover. In the hills and in mountainous regions, the aim should be to

maintain two-third of the area under such cover in order to prevent erosion and land degradation

and to ensure the stability of the fragile ecosystem. Clause 4.3 lays down the aspects of

management of State forests. It would be instructive to reproduce hereunder certain parts of the

Policy with a view to have clarity of the aim to be achieved.

"4.3.1. Schemes and projects which interfere with forest that clothe steep slopes, catchments of

rivers, lakes, and reservoirs, geologically unstable terrain an d such other ecologically sensitive areas

should be severely restricted. Tropical rain/moist forest, particularly in areas like Arunachal Pradesh,

Kerala, Andaman and Nicobar Islands should be totally safeguarded. 4.3.2. No forest should be

permitted to be worked without the Government having approved the management plan, which

should be in a prescribed format and in keeping with the National Forest Policy. The Central

Government should issue necessary guidelines to the State Government in this regard and monitor

compliance.

�XXX�� XXX�� XXX

4.4.1. forest land or land with tree cover should not be treated merely as a resource readily available

to be utilized for various projects and programmes, but as a national asset which requires to be

properly safeguarded for providing sustained benefits to the entire community. Diversion of forest

land for any non-forest purpose should be subject to the most careful examinations by specialists

from the standpoint of social and environmental costs and benefits. Construction of dams and

reservoirs, mining and industrial development and expansion of agriculture should be consistent

with the needs for conservation of trees and forests. Projects which involve such diversion should be

least provide in their investment budget, funds for regeneration/ compensatory afforestation.

4.4.2. Beneficiaries who are allowed mining and quarrying in forest land and in land covered by trees

should be required to repair and re-vegetate the area in accordance with established forestry

practice. No mining lease should be granted to any party, private or public, without a proper mine

management plan appraised from the environmental angle and enforced by adequate machinery.


4.6 Having regard to the symbiotic relationship between the tribal people and forests, a primary task

of all agencies responsible for forest management, including the forest development corporations

should be to associate the tribal people closely in the protection, regeneration and development of

forests as well as to provide gainful employment to people living in and around the forest. While

safeguarding the customary rights and interests of such people, forestry programmes should pay

special attention to the following

-- One of the major cause for degradation of forest is illegal cutting and removal by contractors and

their labour. In order to put an end to this practice, contractors should be replaced by institutions

such as tribal cooperatives, labour cooperatives, government corporations, etc. as early as possible;

-- Protection, regeneration and optimum collection of minor forest produce along with institutional

arrangements for the marketing of such produce;

-- Development of forest villages on par with revenue villages;

-- Family-oriented schemes for improving the status of the tribal beneficiaries; and,

-- Undertaking integrated area development programmes to meet the needs of the tribal economy

in the around the forest areas, including the provision of alternative sources of domestic energy on a

subsidized basis, to reduce pressure on the existing forest areas.


4.8.1. Encroachment on forest lands has been on the increase. This trend has to be arrested and

effective action taken to prevent its continuance. There should be no regularization of existing

encroachments.


4.9. The main considerations governing the establishment of forest-based industries and supply of

raw material to them should be as follows :

-- As far as possible, a forest-based industry should raise the raw material needed for meeting its

own requirements, preferably by establishment of direct relationship between the factory and the

individuals who can grow the raw material by support the individuals with inputs including credit,

constant technical advice and finally harvesting and transport services.

-- No forest-based enterprise, except that at the village or cottage level, should be permitted in the

future unless it has been first cleared after a careful scrutiny with regard to assured availability of

raw material. In any case, the fuel, fodder and timber requirements of local population should not

be sacrificed for this purpose.

-- Forest-based industries must not only provide employment to local people on priority but also

involve them fully in raising trees and raw-material.

-- Natural forests serve as a gene pool resources and help to maintain ecological balance. Such

forests will not, therefore, be made available to industries for undertaking plantation and for any

other activities.

-- Framers, particularly small and marginal farmers would be encouraged to grow, on

marginal/degraded lands available with them, wood species required for industries. These may also

be grown along with fuel and fodder species on community lands not required for pasture purposes,

and by forest department/corporations on degraded forests, not earmarked for natural

regeneration.

-- The practice of supply of forest produce to industry at concessional prices should cease. Industry

should be encouraged to use alternative law materials. Import of wood and wood products should

be liberalized.

-- The above considerations will, however, be subject to the current policy relating to land ceiling

and land-laws.


4.16. The objective of this revised Policy cannot be achieved without the investment of financial and

other resources on a substantial scale. Such investment is indeed fully justified considering the

contribution of forests in maintaining essential ecological processes and life- support systems and in

preserving genetic diversity. Forest should not be looked upon as a source of revenue. Forests are a

renewable natural resource. They are a national asset to be protected and enhanced for the well

being of the people and the Nation."

It is clearly a constitutional imperative to preserve and enhance forest cover as a natural gene pool

reserve.

As opposed to the above, the ground reality has been depletion of forest.

The shift in the approach of the legislation is evident from the FC Act of 1980 when compared with

the scheme underlying the Indian Forest Act, 1927 which was State oriented for conserving the

Forest Policy of 1952. Further, in 1977, Forest and Wildlife were taken out from the State list and

incorporated in Concurrent list. Considering compulsions of States and large depletion of forest,

these legislative measures have shifted the responsibility from States to Centre. Moreover, any

threat to the ecology can lead to violation of right of enjoyment of healthy life guaranteed under

Article 21 which is required to be protected. The Constitution of India enjoins upon this Court a duty

to protect environments.

The aforesaid background has been given to demonstrate that the object of amount of NPV is to

utilize the fund to conserve the ecology without in any manner affecting proprietary rights of the

State Government over the land, timber or the minerals. The Notification dated 23rd April, 2004

does not deprive any State of any land timber or mineral and, therefore, there is no question of

disbursement of any amount to the State. The damage to environment is a damage to the country's

assets as a whole. Ecology knows no boundaries. It can have impact on the climate. The principles

and parameters for valuation of the damage have to be evolved also keeping in view the likely

impact of activities on future generation.

We have already noted that this matter came to be examined on Central Government filing

statement showing the dismal state of affairs of the forest in the country. It is evident that despite

the FC Act and the forest policy the forests have been rapidly depleting. The forest policy recognizes

this fact and, in fact, was involved to check the menace of fast eroding of forest in the country.

Despite constitutional amendments made effective from the beginning of 1977 and despite various

environmental laws enacted between 1974-1986 depletion of forest has not halted.

The State of Forest Report 1995 published by Forest Survey of India when compared with the State

of Forest Report 1997 also shows that there has been considerable depletion of forest cover. It also

shows the limited regeneration. A comparison of the two reveals that total forest cover of the

country decreased from 638,879 sq.km. to 633,397 sq.km., thus showing a net loss of 5,482 sq.km.

Further it reveals that there has been a net decrease of 17,777 sq.km. of dense forest cover of the

country while open forests and mangroves have increased by 12,001 sq.km. and 294 sq.km

respectively. The redeeming feature, however, is an improvement which can be seen from the State

of Forest Report 2001. Learned Amicus Curiae submits that improvement is a result of strict vigil on

account of various orders passed by this Court from time to time. It cannot be doubted that it is

necessary to continue the efforts for regeneration of forest.

It would also be useful to make a mention of the order dated 22nd September, 2000 passed by this

Court which led to grant of sanction of rupees 1,000 crores for maintenance of forest under the 12th

Finance Commission (2005-2010). The said order took note of the fact that felling of the trees is far

in excess of what would be justified with reference to regeneration, and the main cause is non-

availability of sufficient funds. It also notices that even with regard to the felling of trees as per

working plans in the last three years, the corresponding prescription for regeneration has not been

implemented. It further notices that there cannot be any felling without regeneration because that

will, over a period of time, only result in forest vanishing. Further, the order says that the shortfall of

regeneration which has resulted in depletion of forest cover has to be made up. The court took note

of the suggestion that for regeneration there should be a joint venture between State of Madhya

Pradesh� a State having a large forest area, and the Central Government whereby the working

capital, in whole or substantially the whole, can be provided by the Central Government and the

regeneration of degraded forests carried out. Taking an overall view, it is important for the nation

that in certain areas where natural forest exists, the same should be preserved and at the same time

the Central Government should consider whether the deficient States should not be asked to

contribute towards the preservation of the existing forest cover and the compensation/incentive

given to the forest rich States to preserve and regenerate forests. In a sense, there should be a

partnership of all the States to ensure the maintenance and improvement of forest cover. It was

observed that this suggestion should be considered by a Committee of Secretary (MOF) and the

Secretary (MOEF) in consultation with the Chief Secretaries of all the States.

Para 14.25 of the 12th Finance Commission Report deals with maintenance of forest. Noticing that

several States have represented that subsequent to the restrictions placed by this Court on

exploitation of forest wealth, the forests have become a net liability for the States rather than a

source of revenue and maintenance of forest has become a problem due to financial constraints,

these States pleaded that separate grant should be provided for maintenance of forest. Recognising

that forest are a national wealth and the country as a whole has the responsibility in preserving the

said national wealth, the Commission decided to recommend a grant of rupees 1000 crores spread

over the award period 2005-2010 for maintenance of forest. This would be over and above what the

States have been spending through their forest departments. The amount was distributed among

the States based on their forest area, to be spent for preservation of forest wealth. In this light, it is

not open to the State Government to contend that the amount of NPV paid by the user agency shall

be handed over to them.

Reference may also be made to report of the Planning Commission (Chapter IX) relating to forest

environments in Tenth Five Year Plan (2002- 2007) which has taken note of the fact that

sustainability is not an option but imperative since without it environmental deterioration and

economic decline will be feeding each other leading to poverty, pollution, poor health, political

upheaval and unrest. Environment cuts across all sectors of development. The rapid increase in

green house gases in the atmosphere, land degradation, deteriorating conditions of fragile eco

systems, deforestation, loss of biodiversity and environmental pollution have become subjects of

serious global concern. The overall impact of these phenomena is likely to result in depletion of

ozone layer, change of climate, rise in sea-level loss of natural resources, reduction in their

productivity ultimately leading to an ecological crisis affecting livelihood options for development

and over all deterioration in quality of life.

From the above report, it follows that the deterioration and consequently preservation of eco-

systems cannot be area or state specific and that utmost attention is required to be accorded to

conservation of natural resources and for improvement of the status of our environments. The

report notices the need to tackle the environmental degradation in a holistic manner in order to

ensure both economic and environmental sustainability. Forests play an important role in

environmental and economic sustainability. It takes note of the forests being consistently and

seriously undervalued in economic and social terms. It recognizes that the economic value of the

eco-system services of the forests is vast though it is extremely difficult to quantify. It takes note of

the fact that generally much of the land-use decision that presently drives forest change takes

relatively little account of these values. The country's forest resource is under tremendous pressure.

Note has been taken of the fact that India's biological diversity is reflected in the heterogeneity of its

forest cover. It is one of the 12 'mega-diversity' countries of the world. India is also at the meeting

zone of three major zone of three major bio-geographic realms, namely, the Indo-Malayan (the

richest in the world), the Eurasian and Afro- tropical. India also has the two richest bio-diversity

areas, one in the northeast and the other in the Western Ghats. The biological diversity is being

conserved through a network of biosphere reserves, national parks and sanctuaries, however, the

challenges for conservation emanate from population pressures, adverse impacts of industrialization

and intensifying threat from illegal trade.

The importance of conserving and managing existing natural forest and forest soils, which are very

large stores of carbon, has been emphasized as it will significantly reduce greenhouse gas emissions.

To develop and protect forest, a scientific management is necessary so as to enhance productivity,

density and health. Forestry projects have to lay emphasis on management and rejuvenation of

natural forests. The fragile eco-systems should be properly managed in order to safeguard the

livelihood of millions of people.

The national development agenda must recognize the necessity of protecting the long-term

ecological security. The problem area is the growing population, high degree of mechanism and

steep rise in energy use which has led to activities that directly or indirectly affect the sustainability

of the environment.

It is recognized that the sustainable use of bio-diversity is fundamental to ecological sustainable. The

loss of bio-diversity stems from destruction of the habitat, extension of agriculture, filling up of wet

lands, conversion of rich bio-diversity sites for human settlement and industrial development,

destruction of coastal areas and uncontrolled commercial exploitation. It is thus evident that the

preservation of ecosystems, bio-diversity and environment whether examined on common law

principle or statutory principle or constitutional principle eying from any angle it is clearly a national

issue to be tackled at the national level. All initiatives are required to seriously pursue.

Dealing with inter-generational justice, it has been rightly observed that posterity shall not be

treated like dirt. In an article published in 2003 Columbia Journal of Environmental Law (28

Colum.J.Envtl.L.185), the author says that the way in which a society cares or does not care for its

dirt - its land - reflects the degree to which it cares or does not care for its own long-term future.

We may also briefly refer to Public Trust doctrine and its applicability to the matters under

consideration. The Public Trust Doctrine looks beyond the need of the present generation and also

suggests that certain resources are invested with a special nature. It would be instructive to make a

note of a story given in by Timothy Patrick Brady in Boston College Environmental Affairs Law

Review, Spring 1990 under the title 'But most of it belongs to those yet to be born'. The story relates

to digging of well at the time of drought. When a Frenchman told villagers of a prudent African

solution of digging well, many villagers agreed but others argued that it will bring people from other

villages and they would bring their cattle and that would increase the pressure on the already

precious water. The Frenchman told the villagers that why not explain to them that the well is only

for your own village and they can dig their own. It was then said that 'water is not only ours, but is

gift of nature from God and must be shared.' Ultimately, they concluded that it was wiser not to dig

the well at all. The moral of the story is that we are trustees of natural resources which belong to all

including future generation as well. The public trust doctrine has to be used to protect the right of

this as also future generation.

Having regard to the above, amounts under CAMPA have to be used for regeneration of eco-system

and the same cannot be handed over to any State Government on the premise that ecology is not

property of any State but belongs to all being a gift of nature for entire nation. The object of the FC

Act and EP Act is protection of environments. These Acts do not deal with any propriety rights of

anyone.

As already stated the question as to what amount of NPV is required to be paid to achieve these

object is a matter to be gone into by the experts. However, the amounts shall have to be updated

from time to time after every three years. For grant of approval under Section 2 of the FC Act

besides payment of NPV as being presently calculated by MOEF, the user agencies shall have to give

undertakings to pay the remaining amount, if any, pending finalization of determination by the

experts.

Turning now to the grant of exemption to certain projects, learned Solicitor General submitted that

Government hospitals, dispensaries, non- commercial government ventures like schools, rain water

harvesting tanks, sever lines, village roads etc. are the projects meant for public welfare and have no

adverse impact on environment as such and, therefore, these cases deserve to be granted

exemption. Learned Amicus Curiae has no objection to non-commercial and non-revenue earning

Government public welfare projects being treated differently and granted exemption from the

purview of the payment of NPV. Submission was also made by learned counsel appearing for some

of the parties that other projects like irrigation, hydro electricity or other similar projects engaged in

public welfare and public utility activities too deserve to be similarly treated and granted exemption.

On behalf of the National Hydro Project Corporation Ltd. (NHPC), it was submitted that dams/hydro

electric projects and other similar projects are undertaken in public interest and these will also not

create environmental pollution and mere fact of these are revenue earning projects should not be

taken as a ground to treat them differently. Reliance has been placed on observations made in

Hindustan Motors Ltd. and Anr. v. N. Siva Kumar and Anr. [(2000) 10 SCC 664] to contend that such a

project is not a pollution industry. This decision is not relevant for determining the question about

levy and payment of NPV. The question is not only about these and projects referred by the Solicitor

General not creating pollution but is about diversion of forest land for non-forest purpose, thereby

depleting forest so as to utilize land area in setting up these projects. A distinction has to be

maintained between a project set up for providing public utility but which is revenue earning, the

category to which the project of NHPC falls and the government projects of the nature above

referred like hospitals, schools etc., non-revenue earning projects. A balance is required to be

maintained in the development and protection of environments. As already noted, the development

has to be based on sustainability. If NHPC uses the forest land for non forest purposes, the payment

of NPV is to protect the ecological and bio-diversity having regard to the doctrines above referred.

Generally speaking, projects like NHPC are commercial ventures.

What we have stated above is also applicable to submissions made on behalf of Grid Corporation of

Orissa (GRIDCO), State of Uttranchal and State of Madhya Pradesh. We are unable to accept the

submission that wherever the government is the user agency in notified forest area, protected

forest/reserved forest etc., NPV should not be charged. Such a submission cannot be accepted in the

teeth of Section 2 of the FC Act and other environmental laws noticed hereinbefore.

The submission made on behalf of the Federation of Indian Mineral Industries about calculation of

NPV at the rate of 10 per cent for major mineral and 5 per cent for minor mineral as already noted

cannot be accepted. The question is not of the value of the mineral or it being high value and low

volume and mineral of high volume and low value, the question is about use of the forest areas and

need to protect the environments in the manner above stated. A larger public interest has to be the

guiding principle and not the present interest of user agency only.

We are of the view that the question as to which class of projects deserve to be exempted can first

be examined by experts having regard to principles laid in this judgment and in receipt of the report

from them, this Court would further examine the matter and issue appropriate directions. However,

prima facie we feel that revenue earning projects do not deserve similar treatment as non-revenue

earning public welfare projects.

We are clear that if let loose, the benefits achieved as indicated in the State Forest Report of 2001

would be lost and we may be again where we were in 1990's or 1980's and earlier period during

which there was immense depletion of forest and insignificant regeneration.

The work of regeneration and also of compulsory afforestation requires special, specific and expert

attention and we see no illegality in establishment of Special Purpose Vehicle (SPV) in terms of

clause 6.6 above quoted except that for present till further orders it would be necessary to monitor

the establishment of SPV. Thus, in respect of clause 6.6 in relation to establishment of SPV, we hold

that before establishing SPV, its format shall be filed in Court and SPV shall not be established

without permission of the Court. Further in our view the constitution of authority (CAMPA) is

necessary to fully and effectively implement recommendation dated 9th August, 2002 made by CEC

for protection of environment

In view of the aforesaid discussion, our conclusions are:

1. Except for government projects like hospitals, dispensaries and schools referred to in the body of

the judgment, all other projects shall be required to pay NPV though final decision on this matter will

be taken after receipt of Expert Committee Report.

2. The payment to CAMPA under notification dated 23rd April, 2004 is constitutional and valid.

3. The amounts are required to be used for achieving ecological plans and for protecting the

environment and for the regeneration of forest and maintenance of ecological balance and eco-

systems. The payment of NPV is for protection of environment and not in relation to any propriety

rights.

4. Fund has been created having regard to the principles of intergenerational justice and to

undertake short term and long-term measures.

5. The NPV has to be worked out on economic principles.

In view of the above, we issue following directions:

A. An expert committee comprising of three experts including Ms.Kanchan to be appointed within a

period of one month by the Institution of Economic Growth (North Campus).

B. The committee of experts would examine the following issues:

(i) To identify and define parameters (scientific, bio-metric and social) on the basis of which each of

the categories of values of forest land should be estimated.

(ii) To formulate a practical methodology applicable to different bio-geographical zones of India for

estimation of the values in monetary terms in respect of each of the above categories of forest

values.

(iii) To illustratively apply this methodology to obtain actual numerical values for different forest

types for each bio-geographical zone in the country.

(iv) To determine on the basis of established principles of public finance, who should pay the costs of

restoration and/or compensation with respect to each category of values of forests.

(v) Which projects deserve to be exempted from Payment of NPV.

C. The user agencies shall give undertakings for the further payment, if any, as may be determined

on receipt of report from the expert body.

D. The Special Purpose Vehicle shall be established with the permission of the Court.

E. The Institute shall send report of Committee of Experts within a period of four months.

F. The various clauses of CAMPA shall be suitably modified in terms of this judgment within a period

of one month.

List after four months.


Civil Appeal No. 3735 of 2005


Vs. Respondent: Union of India (UOI) and Anr.: Decided On: 28.10.2005

Hon'ble Judges:

R.C. Lahoti, C.J. and Ashok Bhan, J.

Counsels:

For appearing parties: G.E. Vahanvati, Solicitor General, Jitendra Sharma (AC), Mukul Rohtagi, U.U.

Lalit and Shyam Divan, Sr. Advs., M.K.S. Menon, M.K. Michael, Sandeep Narain (AC), Anil Kumar

Mittal, Anjali Jha, Makarand D. Adkar, Vijay Kumar, B.K. Mishra, Aparna Jha, V. Madhukar, H. Wahi,

Indra Sawhney, Deeksha Mishra, P. Parmeswaran, K.R. Saisprabhu, Ravindra K. Adsure,

Bhavanishankar V. Gadnis, Sunita B. Rao, S. Wasim A. Qadri, Anil Katiyar, Chandra Prakash, Vijay

Panjwani, R. Ayyam Perumal, Sewa Ram, V. Madhukar, A. Francis A. Julian, A. Mariarputham, Jagit

Singh Chhabra, V.K. Sidharthan, P.V. Yogeswaran, S. Ravi Shankar, Hemanandini Deori, M.A.

Chinnasamy, Braj Kishore Mishra, R. Nedumaran, Mamrata Chopra and S. Beno Bencigar, Advs.


Acts/Rules/Orders:

Constitution of India - Articles 14 and 21; Environment (Protection) Act, 1986 - Sections 3(2), 6(2)

and 25; Environment (Protection) Rules, 1986 - Rule 5; Noise Pollution (Regulation and Control)

Rules, 2000 - Rule 5, 5(2) and 5(3); Noise Pollution (Regulation and Control) (Amendment) Rules,

2002

Cases Referred:

In Re: Noise Pollution (V), MANU/SC/0415/2005

Prior History:

From the Judgment and Order dated 14.3.2003 of the Kerala High Court in O.P. No. 38066 of 2002

(S)

JUDGMENT

R.C. Lahoti, C.J.

1. In exercise of the powers conferred by clause (ii) of Sub- section (2) of Section 3, Sub-section (i)

and clause (b) of Sub- section (2) of Sections 6 and 25 of the Environment (Protection) Act, 1986

(29/1986), read with Rule 5 of the Environment (Protection) Rules, 1986 the Central Government

made the Noise Pollution (Regulation and Control) Rules, 2000 (hereinafter referred to as 'the Noise

Rules') which have come into force w.e.f. 14th February, 2000.

Rule 5 of the Noise Rules reads as under:

"5. Restrictions on the use of loud speakers/public address system:-

(1) A loudspeaker or a public address system shall not be used except after obtaining written

permission from the authority.

(2) A loudspeaker or a public address system shall not be used at night (between 10.00 p.m. to 6.00

a.m.) except in closed premises for communication within, e.g. auditoria, conference rooms,

community halls and banquet halls.

(3) Notwithstanding anything contained in Sub- rule (2), the State Government may, subject to such

terms and conditions as are necessary to reduce noise pollution, permit use of loud speakers or

public address systems during night hours (between 10.00 p.m. to 12.00 midnight) on or during any

cultural or religious festive occasion of a limited duration not exceeding fifteen days in all during a

calendar year."

Sub-rule (3) has been inserted in the present form by the Noise Pollution (Regulation and Control)

(Amendment) Rules, 2002 with effect from 11th October, 2002. The constitutional validity of Sub-

rule (3) was put in issue by the appellant herein by filing a writ petition in the High Court of Kerala.

By its Judgment dated 14th March, 2003, the High Court has directed the petition to be dismissed

and the sub-rule has been held to be intra vires. The aggrieved petitioner has filed this petition by

special leave.

2. On behalf of the appellant, it has been submitted that this Court in its Judgment dated July 18,

2005 Noise Pollution (V), in Re., has held that freedom from noise pollution is a part of the right to

life under Article 21 of the Constitution. Noise interferes with the fundamental right of the citizens

to live in peace and to protect themselves against forced audience. This Court has also held that as

between 10 p.m. and 6 a.m. which is the time for the people to sleep and have peace, no noise

pollution can be permitted. The appellant also submits that the impugned sub-rule (3) which permits

the State Government to relax the applicability of sub-rule (2) and grant exemption therefrom

between 10 p.m. and 12 midnight, is violative of Article 21 of the Constitution and runs counter to

the law laid down by this Court in Noise Pollution (V), in Re. (supra).

The learned Solicitor General has defended the vires of the said sub-rule (3) and also the Judgment

of the High Court. In his submission, the power to grant exemption is a reasonable restriction placed

in public interest. The relaxation is for a period of 2 hours only and that too for a maximum of 15

days in all during a calendar year confined to cultural or religious occasions. Since the power has

been conferred on the State Government by the Central Government it cannot further be delegated.

The power would be exercised by the State Government by keeping in view the interest of the entire

State population.

3. Our attention was invited to Government of Goa Order No. 7/4/98/STE/DIR/Part-I/1116 published

in the Official Gazette, Government of Goa, Extraordinary No. 5, dated 5th February, 2005, wherein

exercising the powers conferred by the said Sub- rule (3) of Rule 5, the Government of Goa has

specified nine days, in advance, on which the exemption granted by Sub-rule (3) of Rule 5 would be

available. The Government has reserved the power to notify six more days for cultural/religious

festive occasions. Similarly, our attention was invited to Notification No. NP 200/24/3 (Part 3) dated

7th April, 2003 whereby the Maharashtra Government exercising the power under Sub-rule (3) of

Rule 5 has notified 12 specific days, in advance, on which such relaxation shall be permissible and

remaining 3 days have been reserved to be notified, on demand from the local people for religious

festivals and cultural programmes.

4. A query was raised that once the power to grant exemption is allowed, often the exemption

becomes the rule. Exemptions tend to be granted as a matter of course and are thus often misused.

Another query raised during the course of hearing was that in the event of the vires of the said sub-

rule (3) being upheld, nothing prevents the Government from amending the Noise Rules and

enhancing the number of days on which the power to grant exemption would be available or

increasing the permissible hours of relaxation and that would again defeat the very object of

preventing noise pollution. The learned Solicitor General responded by submitting that the

impugned sub-rule has very limited operation which is reasonable and may not be interfered with by

the Court, subject to certain further restrictions. The learned Solicitor General submitted that the

Government does not propose to widen the scope of the exemption either by increasing the number

of days or by enhancing the duration of hours of exemption. In spite of the exemption being

granted, the Government would take care to see that the noise level does not exceed prescribed

decibel limits.

5. Certain intervention applications were also filed. One application is by nine organizations/bodies

situated in Pune, seeking impleadment at the hearing in the appeal, so as to support the impugned

judgment of the High Court. There were other prayers for interventions seeking directions for

widening the scope of exemption under Sub-rule (3) of Rule 5. We make it clear at the very outset,

as we did in Noise Pollution (V), in Re. (supra) that we are not concerned with any religion or

religious practices; we are concerned only with the fundamental right of the citizens and the people

to protect themselves against noise pollution and forced audiences. We are inclined to quote the

following passage from Times of India (The Speaking Tree) dated 7.10.2005:

"Those who favour the use of loudspeakers plead that it is a devotee's religious duty enjoined by the

shastras to make others listen and enjoy the singing of bhajans. Azaan too is necessary to inform

others that it is time for namaz, a job assigned to the muezzin of the mosque.

Wait a minute. There were no loudspeakers in the old days. When different civilisations developed

or adopted different faiths or when holy books were written to guide devotees, they did not

mention the use of loudspeakers as being vital to spread religious devotion. So the use of

loudspeakers cannot be a must for performing any religious act. Some argue that every religion asks

its followers to spread its teachings and the loudspeaker is a modern instrument that helps to do this

more effectively. They cannot be more wrong. No religion ever says to force the unwilling to listen to

expressions of religious beliefs. In the Bhagavad Gita, Krishna says to Arjuna:

"This secret gospel of the Gita should never be imparted to a man who lacks penance, nor to him

who is wanting in devotion, nor even to him who lends not a willing ear; and in no case to him who

finds fault with Me.... He who, offering the highest love to Me, preaches the most profound gospel

of the Gita among My devotees, shall come to Me alone; there is no doubt about it" (18.67-68).

The gospel should be delivered to only those who enjoy listening to it and who have the patience to

do so. It shall never be forced upon those who do not want it. The holy Qur'an says, "Lakum

Deenokum Walia Deen" - your religion and belief is for you and my religion and belief is for me. Each

stay happy with her own religion and belief. It never says, make others listen to the gospel of your

faith by using loudspeakers.

A similar instance is found in Biblical literature. The Gospel according to Saint Luke says: "When

Jesus had called the Twelve together, he gave them power and authority to drive out all demons and

to cure diseases, and he sent them out to preach the kingdom of God and to heal the sick.

He told them: 'Take nothing for the journey - no staff, no bag, no bread, no money, no extra tunic.

Whatever house you enter, stay there until you leave that town. If people do not welcome you,

shake the dust off your feet when you leave their town, as a testimony against them'. So they set out

and went from village to village, preaching the gospel and healing people everywhere" (9.1-10).

The earlier Supreme Court judgment banning the un-solicited use of loudspeakers at inconvenient

times is in conformity with religious tenets."

The above-said passage appeals to us and in our opinion very correctly states the factual position as

to the objective of several religions and their underlying logic.

6. Looking at the diversity of cultures and religions in India, we think that a limited power of

exemption from the operation of the Noise Rules granted by the Central Government in exercise of

its statutory power cannot be held to be unreasonable. The power to grant exemption is conferred

on the State Government. It cannot be further delegated. The power shall be exercised by reference

to the State as a unit and not by reference to districts, so as to specify different dates for different

districts. It can be reasonably expected that the State Government would exercise the power with

due care and caution and in public interest.

7. However, we make it clear that the scope of the exemption cannot be widened either by

increasing the number of days or by increasing the duration beyond two hours. If that is attempted

to be done, then the said Sub-rule (3) conferring power to grant exemption may be liable to be

struck down as violative of Articles 14 and 21 of the Constitution. We also make it clear that the

State Government should generally specify in advance, the number and particulars of the days on

which such exemption will be operative. Such specification would exclude arbitrariness in the

exercise of power. The exemption, when granted, shall not apply to silence zone areas. This is only

as a clarification as, this even otherwise, is the position of law.

8. Before parting, we would like to clarify further that we may not be understood as diluting in any

manner our holding in Noise Pollution (V), in Re. (supra). We are also not granting any exemption or

relaxation in favour of anyone by our verdict. We are only upholding the constitutional validity of the

Noise Rule framed by the Central Government in exercise of its statutory powers.

9. Subject to the observations made hereinabove, the appeal is dismissed and the Judgment of the

Hivarmangh Court is affirmed.

10. All the intervention applications be treated as disposed of.

IN THE HIGH COURT OF JHARKHAND

L.P.A. No. 560 of 2004

Appellants: Hindalco Industries Ltd. Vs. Respondent: State of Jharkhand and Ors.:Decided On:

09.05.2005

Hon'ble Judges:

Altamas Kabir, C.J. and R.K. Merathia, J.

Counsels:

For Appellant/Petitioner/Plaintiff: S. Pal, Sr. Adv. and Ananda Sen, Adv.

For Respondents/Defendant: A.K. Sinha, AG, I. Sen Choudhuri, S.C. III, P.K. Sinha, J.C. to S.C. III and

Saurav Arun, J.C. to AG

Subject: Commercial


Catch Words:

Environmental Impact Assessment, Mining Lease, Mining Operation

Acts/Rules/Orders:

Forest Conservation Act, 1980

ORDER

1. This appeal is directed against the judgment and order dated 21st June, 2004 passed by the

learned single Judge in Writ Petition (C) No. 1032 of 2004 by which the writ petition filed by the

appellant-Company M/s. Hindalco Industries Limited has been dismissed.

2. As will appear from the judgment under appeal, the writ petitioner-Company has challenged two

orders contained in Letter No. 1494 dated 21st November, 2003 and Letter dated 17th January,

2004, whereby the Divisional Forest Officer, South Forest Division, Daltonganj, Medninagar, Palamau

directed the writ petitioner-Company not to carry on mining operations without prior approval of

the Central Government under the Forest Conservation Act, 1980 and also not to use and undertake

the repair work of the road known as 'Hami-Orsa Road'.

3. The case as made out in the writ petition is that the appellant Company had applied for two

mining leases for extraction of Bauxite in the districts of Latehar, Palamau, Lohardaga and Gumla

within the State of Jharkhand. While the first lease was executed on 29th January, 1985 in respect of

411.85 acres of land for a period of 20 years, the other lease was granted on 17th July, 1986 in

respect of 764 acres of land in Village Orsa in the district of Palamau also for a period of 20 years.

The area was surveyed and demarcated and the possession of the land was handed over to the

petitioner-Company. It is also the case of the writ petitioner that there is only one road, namely,

Hami-Orsa Road through which Bauxite can be transported from the leasehold area. It is also the

case of the writ petitioner that the writ petitioner-Company could not start mining activity on

account of the letter written by the Deputy Commissioner, Daltonganj stopping mining activities.

4. The learned single Judge, upon considering the provision of the Forest Conservation Act, 1980,

came to a finding that the State Government or any other authority cannot direct that any forest

land or even a portion of the forest land be used for any non-forest purposes without the prior

approval of the Central Government in other words, whenever any forest land is required to be put

to non-forest use, the State Government or other authority is required to obtain the approval of the

Central Government and only thereafter, any order can be given or direction can be issued by the

Government for using the forest land for non-forest purposes. It is on the basis of this finding that

the learned single Judge was of the view that the petitioner-Company was not entitled to carry on

mining activities by using the forest land or any portion thereof for non-forest purposes.

5. As far as the road in question is concerned, the learned single Judge was of the view that repair or

construction of Hami-Orsa Road also amounts to mining activities and the same could not be

undertaken without prior approval of the Central Government. On the basis of the said findings, the

learned single Judge dismissed the writ petition as being without any merit.

6. Appearing in support of the appeal, Mr. S. Pal, learned Senior Counsel, on instructions, submitted

that the appellant-Company had no quarrel with the findings regarding the use of the forest land

which had formed part of the two leases and that the appellant-Company was willing to have the

said lands which had been identified by the State Government as 'Forest Land' to be excluded from

the two leases. It may not be out of place to mention here that one lease is still subsisting and the

other lease has expired and thus the appellant-Company would have to be granted a fresh lease in

respect of the lease which has already expired.

7. Having regard to the suggestion made on behalf of the appellant, the learned Advocate General

has no objection in the event the appeal is disposed of with a direction that the portions of the

subsisting lease which have been identified to be forest land will be deemed to have been excluded

from the lease for the purpose of mining operations by the appellant-Company. The learned

Advocate General also agrees that the State Government would consider the case of the appellant-

Company for grant of a fresh lease in respect of the second lease which has expired, by excluding the

areas which have been identified as 'Forest Land' in respect of which objection has been taken.

8. Apart from the above, Mr. Pal also submits that the mining operations could not be commenced

on either of the leasehold areas in absence of the Environmental Impact Assessment Clearance in

terms of the notification published in 1994 by the Central Government. According to Mr. Pal, such

clearance has been applied for from the Central Government and the same is awaited. Mr. Pal also

submits that the appellant-Company would commence mining operations as and when such

clearance is obtained from the Central Government.

9. Having regard to the above, we dispose of the appeal with a direction upon the State Government

to allow the appellant-Company to start mining activities after obtaining clearance under the 1994

Notification in respect of the areas to which no objection has been raised in the subsisting lease,

indicated at page 445 of the counter affidavit affirmed by the State and such other notification as

may be in existence. The State Government is also directed to consider the grant of fresh lease in

respect of the lease which has expired, after excluding the areas in respect of which objection has

been taken on behalf of the State Government that the land in question is comprised of 'Forest

Land'. The appellant-Company also undertakes to commence mining activities in the demised land as

and when Environmental Impact Assessment Clearance is obtained from the Central Government.

10. There is one more issue which was under challenge before the learned single Judge, namely,

repair and construction of Hami-Orsa Road. Mr. Pal submits that he has instructions not to press the

said issue and, accordingly, no further observation is made in respect of the same.

11. The appeal is disposed of with the aforesaid observations and directions. There will be no order

as to costs. Liberty to apply.


I.A. No. 1347 of 2005 in W.A. No. 2125 of 2003

Appellants: Hindustan Coca-Cola Beverages (P) Ltd. Vs. Respondent: Perumatty Grama

Panchayat:Decided On: 01.06.2005

Hon'ble Judges:

M. Ramachandran and K.P. Balachandran, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: C.S. Vaidyanathan, Sr. Adv. and A.M. Shaffique, Adv.

For Respondents/Defendant: Rajan Joseph, Addl. Adv. General, K. Ramakumar, V. Chitambaresh, T.C.

Suresh Menon and Babu Joseph Kuruvathazha, Advs.

Subject: Commercial


Catch Words:

Communication, Condition, Consent, Illegal, Licensing, Pollution Control, Statutory Authority

Acts/Rules/Orders:

High Court Act - Section 5; Pollution Control Law; Factories Act; Kerala Panchayat Raj Act - Section

276; Air (Prevention and Control of Pollution) Act; Water (Prevention and Control of Pollution) Act;

Contempt of Courts Act; Kerala Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades

and Factories) Rules, 1996; Civil Procedure Code (CPC) - Section 151; Constitution of India - Articles

12 and 226

Cases Referred:

State of Kerala v. Govindan Nair, 1980 KLT 186; Fr. Antony v. State of Kerala, 1980 KLT 633;

Corporation of Cochin v. Janardhanan, 1982 KLT 386; T. Mohammed v. Secretary, R.T.A.

Malappuram, 1993 (1) KLJ 750; Secretary to Government Tamil Nadu v. K. Vinayagamurthy, (2002) 7

SCC 104; State of West Bengal v. Kesoram Industries Ltd., (2004) 10 SCC 201; Kapildeo Prasad Sah v.

State of Bihar, (1999) 7 SCC 569; Union of India v. Oswal Woollen Mills Ltd., (1984) 2 SCC 646; Union

of India v. Paliwal Electricals (P) Ltd. (1996) 3 SCC 407; Tirupati Balaji Developers (P) Ltd. v. State of

Bihar, 2004 (5) SCC 1

ORDER

M. Ramachandran, J.

1. This is an application, filed under Section 151 of the Code of Civil Procedure read with Section 5 of

the High Court Act, supported by an affidavit. It is prayed that the first respondent-Perumatty Grama

Panchayat is to be issued with a direction to forthwith renew the licence of the petitioner-company.

Further prayer is to take necessary action against the respondents, as may be deemed fit and

proper, in the facts and circumstances of the case.

2. By judgment dt. 7.4.2005, in Writ Appeal No. 2125 of 2003 and connected cases, we had found

that the first respondent--Panchayat was not justified in resorting to steps, whereby renewal of

licence of the petitioner-company was rejected before a scientific assessment was made. It had also

been found that the Panchayat had no legal authority to cancel the licence for functioning of the unit

for any of the reasons pointed out by them from time to time. Consequently, we had directed the

Panchayat to consider the application for renewal of the licence for the coming year or block years.

3. Conditions had been prescribed that the application as above is to be filed within two weeks from

the date of the judgment. It had also been indicated that the petitioner will have the obligation to

apprise (typed as appraise) the Panchayat that they possess licences under the Factories Act and

clearance received from the Pollution Control Board. If the above two conditions were satisfied, the

Licensing Authority was to grant the licence. After the grant of licence, it would have been

permissible for the Panchayat to make inspections as would have been relevant.

4. We had further directed that the appeal filed by the petitioner-company before the statutory

authority, under Section 276 of the Kerala Panchayat Raj Act, was therefore not essential to be

proceeded with, since this Court had opportunity to examine all relevant facts and come to a

decision by itself.

5. The present petition has been filed by the petitioner--company pointing out that notwithstanding

the directions a negative approach had been shown. They refer to the application dated 13.4.2005

and covering letter, which had been filed by them consequent to the directions in the judgment. A

copy thereof is marked as Annexure-B. Renewal of the licence was sought for, for a period of five

years from 1st April, 2005. The duly filled in application, in the prescribed format, was filed along

with the licence fee. In paragraph 4 of the covering letter, the Panchayat has been informed that the

company had all the necessary approval and licences under the Factory Act and Environmental laws.

The approval and licences were current and valid till 31st of December, 2005.

6. The grievance highlighted in the affidavit is that by an order dated 26.4.2005 the Secretary of the

Panchayat had informed them that the Panchayat in its meeting held on 26.4.2005 had considered

all the aspects in detail and were convinced that the company has not submitted the application for

renewal of the licence fulfilling the conditions stipulated by the High Court. According to the

Panchayat, in the absence of clearance received from the Pollution Control Board and without the

appraisal by the company that it possess licence issued under the Factories Act, the functioning of

the company would be illegal.

7. The affidavit also refers to the letter next submitted by the petitioner, dt. 29.4.2005. Copies of

clearance certificates and licences issued by the Pollution Control laws and Factories Act were

enclosed and thereby a request was made that at least thereafter necessary steps may be taken to

comply with the order of the High Court, in a manner as appropriate and just. The enclosures were

the licences issued by the Director of Factories & Boilers; copy of contest letter dated 14.2.2004

issued under the Air (Prevention & Control of Pollution) Act, consent letter under the Water

(Prevention & Control of Pollution) Act, a copy of the application for renewal concerned, and Pay

Order No. 472067 dt. 11.4.05 intended towards licence fee. However, no further orders had come, it

is submitted.

8. Senior counsel Mr. Vaidyanathan, appeared on behalf of the petitioner. Being a factory which was

functioning in the Panchayat, what was understood as required on the part of the petitioner, was to

intimate the Panchayat about their credentials. A Local Authority, which is a State coming under

Article 12 of the Constitution, it was not expected of them to resort to technicalities, with a closed

mind. By serving a rejection order, the petitioner-- company is subjected to prejudice and

discrimination. The benefit of an adjudication, at the behest of this Court, is thereby denied to them,

and it disclosed a sorry state of affairs. It was also a case where a Special Leave Petition in the

Supreme Court had been filed, but the Court had refused to grant the Panchayat the benefit of a

stay.

9. Mr. K. Ramakumar, appearing for the first respondent--Panchayat, had shaped his arguments so

as to establish that the petition as such is not in order, and it is also not maintainable. Advertence

had been made by the counsel to decisions in State of Kerala v. Govindan Nair, 1980 KLT 186, Fr.

Antony v. State of Kerala, 1980 KLT 633, as also Corporation of Cochin v. Janardhanan, 1982 KLT 386,

pointing out that this Court had been taking a consistent stand that in a matter where final

judgments had been pronounced, interlocutory applications thereafter are not to be entertained. In

case of a fresh cause of action arising from the rejection, perhaps a fresh Writ Petition was to be

filed. On the other hand, if the allegation was that there was disobedience of the orders, the normal

remedy would have been to move this Court under the Contempt of Courts Act. The counsel had

also submitted that this Court definitely would not have arrogated to itself the power of the

Panchayat, or even that of the appellate authorities, and no orders were therefore to be expected by

the petitioner, whereby there would be a direction to the Panchayat to issue the licence. As an

authority for the proposition, counsel had invited our attention to a Division Bench judgment of this

Court in T. Mohammed v. Secretary, R.T.A. Malappuram, 1993 (1) KLJ 750. Counsel also had cited the

decisions of the Supreme Court in Secretary to Government Tamil Nadu v. K. Vinayagamurthy,

(2002) 7 SCC 104 and State of West Bengal v. Kesoram Industries Ltd., (2004) 10 SCC 201.

10. Mr. Ramakumar had also adverted to a circumstance that invocation of Section 151 of the CPC

may not be appropriate in proceedings under Article 226 of the Constitution of India, and the

petition was therefore one filed without legal authority. But, this is countered by the petitioner

submitted that since the petition was filed in connection with an appellate judgment in W.A.No.

2125 of 2003, the argument was misconceived, as it is well known that in such proceedings

invocation of CPC was always permissible.

11. Mr. Vaidyanathan referred to the later decisions of the Supreme Court in Kapildeo Prasad Sah v.

State of Bihar, (1999) 7 SCC 569, Union of India v. Oswal Woollen Mills Ltd., (1984) 2 SCC 646 and

Union of India v. Paliwal Electricals (P) Ltd. (1996) 3 SCC 407. It would have been possible, in

appropriate cases, according to the counsel, for the Court to take notice of the follow up action

without driving the party to de novo proceedings. Especially in the present case, the rejection order

was no order at all, as the Panchayat proceeds as if no valid application in compliance with the

directions in the judgment had been passed.

12. Mr. Ramakumar also adverted to a communication issued by the Pollution Control Board,

addressed to the petitioner dt. 23.8.2004 [marked as Ext.R1(b)] pointing out that there was a

direction consequent to the orders of the Supreme Court for closing down the industry and it was

highly relevant and went on to show that the industry deserved to be shut down. However, we feel

that reference to such details in these proceedings might be inappropriate, especially since the

petitioner on his part has made a submission that every draw back and difficulty pointed out by the

Pollution Control Board had already been set right and an objection on that score would not have

been sustainable at all.

13. We feel that the only question was as to whether there was relevance for a petition of the

present nature. Normally, the Courts seldom chase their orders, as they are meant to discharge their

obligations with a total sense of detachment. (See Tirupati Balaji Developers (P) Ltd. v. State of Bihar,

2004 (5) SCC 1). But, at the same time, an attempt to sidetrack its order cannot be countenanced.

The direction in the judgment was to consider the application, since this Court felt that the

Panchayat was relying on extraneous factors so as to deny renewal of licence to a running

establishment. We had found that the objections raised were without substance. Direction was

given to the petitioner to inform the Panchayat about their possession of licences, since we hope

that thereby a collision course could be avoided. In the application filed on 13.4.2005, vide

paragraph 4, the petitioner had informed the Panchayat that they possessed licences as were

prescribed, and referred to in the judgment.

14. Even after these, if the Panchayat had any doubt about the claim, it would have been prudent,

and expected of them to require the further details to be furnished. However, after sitting over an

application for a considerable period, what had been done was rejection of the application alleging

that "In the absence of the clearance received from the Pollution Control Board and without the

appraisal by the company that it possess licence issued under the Factories Act, the functioning of

the company will be illegal". This was highly improper and per se shows a closed mind; the orders of

the Court had been trifled with, and we restrain ourselves from using stronger words.

15. We find that they have been ill advised in the course followed, and if further directions are not

issued, it may tantamount to shriking of responsibility, and we have to ensure that lawful orders are

obeyed. A Panchayat is entitled to hold an opinion, but when the Courts have pronounced upon

rights and liabilities, they have to gracefully accept the verdict. This is the rule of law, as we

understand it.

16. In the light of the above, we direct the Licensing Authority of the first respondent--Panchayat

(President of the Panchayat), as could be gatherable from the Kerala Panchayat Raj (Issue of Licence

to Dangerous and Offensive Trades and Factories) Rules, 1996 to renew the licence, as has been

requested for by the petitioner, in the application referred to in the petition, for an appropriate

duration, within one week from today. The Panchayat will be entitled to demand the licence fee as

might be payable in accordance with the Rules.

17. Taking notice of the contentions, that had been raised by the parties in these proceedings, we

also direct that the authorities under the Pollution Control Board should make an inspection of the

premises of the factory, after it commences functioning and within three months thereof for

ensuring that all precautionary measures for safety are observed. They will be free to take measures

that may be necessary in their discretion and issue directions, in areas of shortfall if any found.

18. If a formal licence is not issued by the first respondent--Panchayat within the time prescribed as

above, it should be deemed that the petitioner possesses such licence as renewed and it will be

within their rights to carry on the functioning of the company, effective from 10.6.2004, for a block

of two years, subject of course to the restrictions that have already been laid down in the judgment.

Immediately after pronouncement of the orders, Mr. Ramkumar, counsel submits that the order

may be kept in abeyance for a period of ten days, so that appellate remedy could be invoked. We

are afraid such a course may not be warranted on the facts and circumstances of the case, and the

directions issued.


Writ Petition Nos. 19969 and 21769 of 2003

Appellants: Federation of Pammal and Nagalkeni Welfare Association, rep. by its General Secretary,

S.P. Narayanaswami Vs. Respondent: The District Collector, Executive Engineer, Agricultural

Engineering Department and The Executive Officer, Pammal Town Panchayat: Decided On:

21.06.2005

AND

Appellants: K.S.V. Devanathan

Vs.

Respondent: The Secretary to Government, Rural Development and Local Administration

Department, The Member Secretary, Tamil Nadu Pollution Control Board, The District Collector and

The Executive Officer, Pammal Town Panchayat

Hon'ble Judges:

M. Karpagavinayagam and C. Nagappan, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: T.S. Ramaswamy, Adv. in W.P. No. 19969 of 2003 and K.V.

Ananthakrushnan, Adv. in W.P. No. 21769 of 2003

For Respondents/Defendant: K. Mahendran, Spl. Govt. Pleader for respondents 1 and 2 in W.P. No.

19969 of 2003 and respondents 1 and 3 in W.P. No. 21769 of 2003, Rita Chandrasekar, Adv. for

respondent 2 in W.P. No. 21769 of 2003, G. Sankaran, Adv. for respondent 3 in W.P. No. 19969 of

2003 and P.P. Shanmugasundaram, Adv. for respondent 4 in W.P. No. 21769 of 2003


Catch Words:

Damage, Deposit, Drinking Water, Injunction, Mandamus, Pollution Control

Cases Referred:

M.C. Mehta v. Kamal Nath and Ors., 1997 (1) Supreme Court Cases 388

Disposition:

Petition allowed

ORDER

M. Karpagavinayagam, J.

1. Federation of Pammal and Nagalkeni Welfare Association has filed W.P.No.19969 of 2003, seeking

for issuance of a writ of mandamus, directing the first respondent District Collector, Kancheepuram;

the second respondent Executive Engineer, Agricultural Engineering Department, Chennai; and the

third respondent Executive Officer, Pammal Town Panchayat, not to dig up or damage any part of

Pammal Thirupananthal Lake, its bunds and walls for the purpose of the proposed drainage work.

2. K.S.V.Devanathan filed W.P.No.21769 of 2003 for issuance of a writ of mandamus, forbearing the

District Collector, Kancheepuram, third respondent, from proceeding with the construction of open

sewerage drain water line on the bunds of Thirupananthal Lake and demolishing the bunds and

inlets for the purpose of drainage work and to direct the second respondent Tamil Nadu Pollution

Control Board to investigate into the matter regarding the same.

3. Since the issue involved in both the Writ Petitions would relate to the same lake, both the Writ

Petitions are being disposed of by this common order.

4. According to the association, petitioner in W.P.No.19969 of 2003, it is a welfare association, which

was started and has been carrying on social service activities in and around Pammal and Nagalkeni

villages. In April, 2002, the association approached the District Collector, first respondent, requesting

for renovation and desilting of Pammal-Thirupananthal Lake and implementation of the rain water

harvesting work. The then District Collector, after inspection of the lake, decided to carry out the

said work and directed the petitioner to collect and contribute Rs. 45,000/- for the said work.

Accordingly, the petitioner association deposited the said amount of Rs. 45,000/- with the Collector's

office. On the basis of the direction issued by the first respondent, after deposit, the Executive

Engineer, Agricultural Engineering Department, on 02.07.2002, submitted an estimate of Rs.

9,80,000/- for renovation and implementation of rain water harvesting work. On 15.07.2002, the

then District Collector passed an order granting sanction for the execution of the work at the cost of

Rs. 7,95,000/-. On the basis of the said order, rain water harvesting work was started and continued.

On 25.11.2002, the then District Collector passed an order, entrusting the maintenance of the above

lake to the petitioner association. For the purpose of safety of the lake, the petitioner built two

compound walls around the lake in order to prevent the public and cattle from misusing the lake. In

the meantime, the Executive Officer, Pammal Town Panchayat, third respondent, requested

permission of the District Collector to construct open drainage, by demolishing the lake bunds to

take sewerage water from Pammal village across the lake. The new District Collector, who took the

charge later, ordered for the same. This was objected to by the public, since there was every

probability of drainage water mixing up with the drinking water in the lake. The association also

suggested alternate route for constructing drainage without affecting the lake. However, there was

no response. Hence, this Writ Petition for a direction, forbearing the respondents from digging up or

damaging any part of the lake bunds and walls.

5. According to K.S.V.Devanathan, petitioner in W.P.No.21769 of 2003, the District Collector, after

proper consideration, implemented the Rain Water Harvesting Scheme at the cost of Rs. 8,00,000/-,

by providing five inlets for Rain Water Harvesting, desilting, cleaning the lake and raising bunds.

However, in August, 2003, the District Collector decided to demolish the bunds of the lake and a

portion of the bunds was also demolished. Therefore, the association filed the Writ Petition for a

mandamus and interim injunction was granted. Despite that, the bunds were demolished.

Ultimately, in the Contempt Application, a Division Bench of this Court directed to restore the bunds

to their original position.

6. The Executive Officer, Pammal Town Panchayat, while opposing both the Writ Petitions, would

submit that the apprehension of the association and the private individuals that the bunds

surrounding the lake would be damaged under the guise of construction of drainage channel is

unfounded, as the concrete based drainage is going to be constructed around the bunds and thereby

stagnation of drainage water around the bunds causing pollution to the entire area could be

avoided. The construction of drainage channel was ordered after inspection only to channelise the

drainage water. In this regard, the Tamil Nadu Pollution Control Board was called upon to inspect

the place and submit a report. Accordingly, after inspection, the report was filed. In the report, it is

stated that the Pammal Municipality has to make arrangements for proper collection and disposal of

sewerage/drainage water in the said area to avoid entry of drainage water into the Thiruppananthal

Lake to preserve its quality. Therefore, only for the purpose of proper collection and disposal of

drainage water, it is proposed to construct the drainage channel with cement concrete base around

the lake so that the drainage water can be drained to be taken to the outlet which is located on the

northern side of the lake and ultimately it would be connected to the disposal point at airport signal

office. So, under those circumstances, the Writ Petitions are not sustainable both on facts and law.

7. We have heard the learned counsel for the parties and also perused the report filed by the Tamil

Nadu Pollution Control Board.

8. On a perusal of the report and the counter filed by the Tamil Nadu Pollution Control Board, it is

clear that since there was no adequate drainage facility, sewerage along the road side may find its

way into lake through the inlets and, therefore, the Board suggested that the Pammal Municipality

has to provide proper sewerage facility to avoid entry of drainage water into the lake.

9. As a matter of fact, the Government implemented the Rain Water Harvesting Scheme under

G.O.No.158, dated 11.11.2002. The respondents, having implemented the Rain Water Harvesting

Scheme and after having directed the residents not to drain the pollutant or effluent water into the

lake, cannot allow the construction of open sewerage or closed sewerage line on the bunds of the

lake to drain the sewerage water. As such, the act of Pammal Panchayat in putting up the sewerage

line on the bunds of the lake is against the scheme of Rain Water Harvesting. Indeed, a perusal of

the letters written by the Executive Engineers of the Government dated 23.09.2002, 03.10.2002 and

07.10.2002 would show that insistence was made on the Municipality to take the sewerage line in

the alternate route to avoid mixing of sewerage water into the tank. Admittedly, permission was

granted by the District Collector to the Municipality to construct the drainage even without hearing

the petitioner association, which was entrusted with the lake maintenance work.

10. In this context, it would be worthwhile to refer to para 25 of the judgment of the Supreme Court,

reported in 1997 (1) Supreme Court Cases 388 (M.C. Mehta v. Kamal Nath and Ors.), which reads as

follows:

"The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters

and the forests have such a great importance to the people as a whole that it would be wholly

unjustified to make them a subject of private ownership. The said resources being a gift of nature,

they should be made freely available to everyone irrespective of the status in life. The doctrine

enjoins upon the Government to protect the resources for the enjoyment of the general public

rather than to permit their use for private ownership or commercial purposes. According to

Professor Sax, the Public Trust Doctrine imposes the following restrictions on governmental

authority :

Three types of restrictions on governmental authority are often thought to be imposed by the public

trust: first, the property subject to the trust must not only be used for a public purpose, but it must

be held available for use by the general public; second, the property may not be sold, even for a fair

cash equivalent; and third the property must be maintained for particular types of uses."

11. In view of the factual situation and also the principle laid down by the Supreme Court, we are of

the view that the prayer sought for in these Writ Petitions has to be granted in favour of the

petitioners. Accordingly, Writ Petitions are allowed. No costs. Consequently, the connected

W.P.M.P. Nos. 24958 and 26986 of 2003,402,403 and 8333 of 2005 and W.V.M.P. No. 2001 of 2003

are closed.


W.P. No. 21532 of 2005 and W.P.M.P. Nos. 23473 to 23475 of 2005

Appellants: O. Fernandes, Co-convener, Coastal Action Network

Vs.

Respondent: Union of India (UOI), rep. by its Secretary to Government, Ministry of Environment and

Forests and Ors.:Decided On: 30.06.2005

Hon'ble Judges:

N. Dhinakar and M. Chockalingam, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: V. Prakash, Senior Counsel for P. Chandrasekaran, Adv.

For Respondents/Defendant: V.T. Gopalan, Additional Solicitor General assisted by P. Wilson, Adv.

for Respondents No. 1, 2, 3, 5 and 6 and Rita Chandrasekaran, Adv. for Respondent No.4


Catch Words:

Environmental Impact Assessment, Pollution Control

Acts/Rules/Orders:

National Environment Appellate Authority Act, 1997 - Sections 3, 5, 6 and 11

Disposition:

Petition dismissed

ORDER

N. Dhinakar, J.

1. The petitioner having approached this Court on an earlier occasion raising objections for

proceeding with Sethusamudram Shipping Canal Project, did not succeed, as on the earlier occasion,

his contentions were rejected on the ground that as regards the project, public hearings are going on

and cause of action arises only when an adverse order has been passed or some action adversely

affecting someone's right is taken. It was rejected on the other ground that since no adverse orders

have been passed nor action taken against anyone, there is no need to entertain the writ petition at

this stage and issue Rule Nisi.

2. Now, the learned Senior Counsel appearing for the petitioner submits that environmental impact

assessment order has been passed and thereafter, an order of clearance had been given to proceed

with Sethusamudram Shipping Canal Project by the Ministry of Environment on 31.3.2005.

According to the learned counsel, the order was passed by the authority concerned without taking

into consideration the impact, that the project will have, on the environment and without following

the guidelines issued by the Ministry of Environment for clearing such projects. He also submits that

No Objection Certificate was not obtained from the Tamil Nadu Pollution Control Board and that

therefore, the order dated 31.3.2005 giving environmental clearance under the Environment Impact

Assessment Notification is bad in law.

3. A specific question was put to the learned counsel, whether the petitioner has exhausted the

remedy available to him under Section 11 of the National Environment Appellate Authority Act,

1997, (for short 'the Act'), wherein it is contemplated that any person aggrieved by an order granting

environmental clearance in the areas in which any industries, operations, or processes or class of

industries, operations and processes shall not be carried out or shall be carried out subject to certain

safeguards may, within thirty days from the date of such order, prefer an appeal to the authority in

such form as may be prescribed. The proviso to the said Section also contemplates that the appeal

can be entertained after the expiry of the said period of thirty days, but not after ninety days from

the date of aforesaid, if it is satisfied that the appellant was prevented by sufficient cause from filing

the appeal in time. The learned counsel submits that the petitioner has not preferred any appeal to

the authority, but would contend that since the authority contemplated under Section 3 of the Act,

is not properly constituted in terms of Section 5 of the said Act, he could not prefer any appeal. He

submits that for an authority to be constituted, the authority should contain a Chairperson and a

Vice Chairperson and a person shall not be qualified for appointment as a Chairperson unless he has

been (a) a Judge of the Supreme Court or (b) a Chief Justice of a High Court. According to the learned

counsel, there is no Chair Person from 2000 and the Vice Chairperson, who is acting as Chairperson,

in terms of Section 6 of the Act, is only a retired secretary of the Ministry of Environment and the

petitioner is not likely to get a fair hearing, since the Vice Chairperson was the secretary of the said

Ministry when he retired.

4. The learned Additional Solicitor General submits that there is no need to obtain a No Objection

Certificate from the Tamil Nadu Pollution Control Board and that if there is no Chairperson heading

the authority, there can be no difficulty for the Union of India to appoint the said person within

thirty days from the date of receipt of a copy of this order if there is no Chairperson for the authority

and that the petitioner can approach the appellate authority thereafter and place all the materials

before the said authority and redress his grievance before the authority.

5. We see no reason as to why such a course should not be adopted, more so, when the project is to

be slated for inauguration on 2.7.2005, as entertaining any such petition at this stage will only lead

to much hardship to all the parties concerned. We make it clear that the petitioner can file an appeal

within thirty days from the date of the appointment of the Chairperson and he is at liberty to

canvass all the points raised in this writ petition before the said authority. The learned Additional

Solicitor General submits that there will be no objection by the respondents on the ground of delay

in filing the appeal before the appellate authority, if the appeal is filed within thirty days from the

date of appointment of the Chair Person. We record the said statement of the learned Additional

Solicitor General.

6. In view of the above statements of the respective counsels, we find no reason to issue Rule Nisi,

but, we give liberty to the petitioner to move the appellate authority as observed above. The writ

petition is, accordingly, dismissed. No costs. Consequently, W.P.M.P. Nos. 23473 to 23475 of 2005

are also dismissed.

IN THE HIGH COURT OF DELHI

WP (C) 4719/1993

Appellants: World Wide Fund for Nature India Vs. Respondent: Union of India (UOI)Decided On:

20.07.2005

Hon'ble Judges:

B.C. Patel, C.J. and Sanjay Kishan Kaul, J.

Counsels:

For Appellant/Petitioner/Plaintiff: Raj Panjwani, Adv.

For Respondents/Defendant: Kailash Gambhir, Adv.


Catch Words:

Damage

Acts/Rules/Orders:

Wild Life (Protection) Act, 1972 - Sections 2, 17A and 17B; Forest Conservation Act, 1980

JUDGMENT

B.C. Patel, C.J.

1. This petition is preferred by the petitioner inter alia praying that the respondent be directed to

issue a notification as contemplated in Section 17A of the Wild Life (Protection) Act, 1972 (

hereinafter referred to as, "the Act" ). Affidavit is filed on behalf of the respondent. We have

perused the same. The contention raised by the petitioner is that in view of Section 17A of the Act,

the 'forest land' means a 'forest land', which is specified, by a notification, by the Central

Government. The same Section reads as under:-

"Section 17A. Save as otherwise provided in this Chapter, no person shall-

(a) wilfully pick, uproot, damage, destroy, acquire or collect any specified plant from any forest land

and any area specified, by notification, by the Central Government;

(b) posses, sell, offer for sale, or transfer by way of gift or otherwise, or transport any specified plant,

whether alive or dead, or part or derivative thereof."

2. It is required to be noticed at this juncture that Section 17B is relevant for this purpose. It reads as

under:-

"17B. Grants of permit for special purposes G�" The Chief Wild Life Warden may, with the previous

permission of the State Government grant to any person a permit to pick, uproot, acquire or collect

from a forest land or the area specified under Section 17A or transport, subject to such conditions as

may be specified therein, any specified plant for the purpose of-

(a) education.

(b) scientific research;

(c) collection, preservation and display in a herbarium of any scientific institution; or

(d) propagation by a person or an institution approved by the Central Government."

3. It would be worthwhile, at this juncture, to reproduce paras 10, 11 and 14 of the affidavit of the

respondent.

"10.It is further submitted that on a reading of Section 17B it is clear that the section postulates that

a Chief Wild Life Warden can for the purposes mentioned in the section allow any person to pick,

uproot, acquire or collect specified plants from a forest land or the area specified under Section 17A.

It is important to note that under Section 17B the condition of notification as provided under section

17A(a) has been made applicable only to the àrea specified' and not to `forest land' as the words

used therein are à forest land or the area specified under Section17A'. Thus it would mean whether

or not any forest land is specified by notification, prohibiting activity/actions as provided under

section 17A(a), no person can carry on an activity relating to `specified plant' without the permit of

Chief Wi8ld Life Warden and such permit would be restricted only for the purposes as specified

under Section 17B. In such an event section 17A(a) to the extent that forest land needs to be

specified by notification for protection of specified plants growing on such `forest land' would be but

a dead letter and meaningless because whether or not a forest land is specified by notification no

person can pick, uproot, acquire or collect a specified plant from a forest land without a permit from

the Chief Wildlife Warden and thus in effect section 17B prohibits any activity relating to 'specified

plant' in a 'forest land'.

11. It is respectfully submitted that the Supreme Court in a catena of judgments has read the word

"and" as "or" on the reasoning that though the word "and" is normally conjunctive but at times it

can be read as "or" to give effect to the manifest intention of the legislature as disclosed from the

context. It is most humbly submitted that though under Section 17A the words used are "any forest

land and any area specified, by notification", however under Section 17B it reads "forest land or the

area specified under Section 17A" and therefore, "forest land" has been used disjunctively from

"area as specified under Section 17A" and the condition of notification by the Central Government is

not applicable to à forest land' for specified plants to be protected therein."

...

14. It is respectfully submitted that statutes which are pari materia or related should also be read to

interpret a provision. It is most humbly submitted that the Hon'ble Supreme Court of India in order

dated 12.12.1996 in CWP No.202/1995 titled TN Goda varman Thirumulkpad v. Union of India and

Ors. has defined the term "forest land" as under:

"...The term "forest land" occurring in section 2 will not only include "forest" as understood in the

dictionary sense, but also any area recorded as forest in the Govt. record irrespective of its

ownership. This is how it has been understood for the purpose of Sec.2 of the Act. The provisions

enacted in the Forest Conservation Act, 1980 for the conservation of forests, and the matters

connected therein must apply clearly to all forests so understood irrespective of the ownership or

classification thereof...."

4. According to learned counsel for the respondent, it is not necessary that it should be a forest land

which is an area specified by a notification by the Central Government. In view of Section 17B, it is

very clear that it may be a forest land or the area specified under Section 17A. In view of this, it was

submitted that the word 'and' used in sub-clause (a) of Section 17A is required to be read as 'or'. On

behalf of the respondent, it was submitted that reading from both the provisions if 'and' is not read

as 'or', it will create ambiguity and purpose would not be served. From this intention of the

legislature, it is clear that the word 'and' is read as 'or' in Section 17A of the Act in view of

subsequent provisions.

5. In view of what is stated above, it is very clear that Section 17A wherein 'and' is used is required to

be read as 'or'. So far as the forest land is concerned the same is required to be read as indicated by

the Apex Court in the case which is referred herein-above. In this view of the matter, petition stands

disposed of with the direction to circulate the judgment to all the Forest Officers by the Director,

Ministry of Environment and Forests, Department of Wildlife Preservation under the Wild Life

(Protection) Act, 1972.

Equivalent Citation: (2005)3CompLJ193(SC), 2005(1)CTC609, [2005(2)JCR294(SC)], JT2005(11)SC135

CASE NOTE HIGHLIGHT


Writ Petition (C) No. 657 of 1995 with SLP (C) No. 16175 of 1997 and Civil Appeal No. 7660 of 1997

Appellants: Research Foundation for Science Technology and Natural Resources Policy Vs.

Respondent: Union of India (UOI) and Anr.:Decided On: 05.01.2005

Hon'ble Judges:

Y.K. Sabharwal and S.H. Kapadia, JJ.

Counsels:

For Appearing Parties: R. Mohan, Additional Solicitor General, Sunil Gupta, Sr. Adv., Sanjay Parikh,

Vikas Sharma, Anil Katiyar, B. Krishna Prasad, B. Vijayalakshmi Menon, Anil Kumar Jha, Vikas Sharma,

Ashok Mathur, Arup Banerjee, Kumar Rajesh Singh, B.B. Singh, Tarun Gulati, Bina Gupta, Divya Roy,

S. Subba Rao, Sushma Suri, S. Madhusudhan Babu, D.N. Mishra, Ejaz Maqbool, C. Nayak, S.

Madhusunan, Atishi Dipankar, S.K. Agnihotri, Rohit K. Singh, Amit Mishra, R.C. Verma, Mukesh

Verma, Manish Shanker, Kh. Nobin Singh, A. Subhashini, Buddy A. Ranganadhan, V.G. Pragasam, U.

Hazarika, Satya Mitra, Sumita Hazarika, Ajay Sharma, Rajeev Sharma, Neelam Sharma, Nidhesh

Gupta, Vinod Sukala, S. Janani, Vijay Panjwani, Aruneshwar Gupta, Addl. Adv. General for the State

of Rajasthan, Naveen Kumar Singh, Shivangi Anil Shrivastav, R.A. Perumal, S. Vallinayagam,

Janaranjan Das, Swetaketu Mishra, Moushumi Gahlot, D.K. Sinha, Kamlendra Mishra, Rajeev Kumar

Bubey, Rashmi Singh, A. Mariarputham, Aruna Mathur, D.N. Goburdhan, Pinky Anand, Geeta Luthra,

Krishna Sarma, Riku Sarma, Sushila Ram, Nikhil Nayyar, L.N. Joshi, Hemantika Wahi, Gopal Singh, K.B.

Rohtagi, Manik Karanjawala, Pramod Swarup, Pradeep Misra, R.V. Ratnam, Urmila Sirur, shakil

Ahmed Syed, Rakesh K. Sharma, Mukesh K. Giri, Radha Shyam Jena, Sanjay R. Hegde, Javed Mahmud

Rao, K.K. Gupta and Jayant Bhushan, Advs.



Catch Words

Acts/Rules/Orders:

Environment (Protection) Act, 1986; The Hazardous Wastes (Management and Handling) Rules, 1989

- Rules 3, 15(2); Constitution of India - Articles 7, 21, 47, 48A and 51A

Cases Referred:

Deepak Nitrite Ltd. v. State of Gujarat and Ors., Rylands v. Fletcher; M.C. Mehta and Anr. v. Union of

India and Ors.,Indian Council for Enviro-Legal Action and Ors. v. Union of India and Ors., Vellore

Citizens' Welfare Forum v. Union of India and Ors., Research Foundation For Science Technology

National Resource Policy v. Union of India and Anr., 2003 (9) SCALE 303; A.P. Pollution Control Board

v. Prof. M.V. Nayudu (Retd.) and Ors., (1996) 5 SCC 718; People's Union for Civil Liberties v. Union of

India and Anr.,

Citing Reference:

** Relied On

*** Examined

**** Distinguished

Deepak Nitrite Ltd. v. State of Gujarat and Ors.��

�� ****

Rylands v. Fletcher��

��

�� ****

M.C. Mehta and Anr. v. Union of India and Ors.��

�� **�

Indian Council for Enviro-Legal Action and Ors. v. Union of India and Ors.��

***

Vellore Citizens' Welfare Forum v. Union of India and Ors.�� **

Research Foundation For Science Technology National Resource Policy v.

Union of India and Anr.�� **

Casenote

Constitution - Environment (Protection) Act, 1986 - The Hazardous Wastes (Management and

Handling) Rules, 1989 - Rules 3, 15(2) - Constitution of India - Articles 7, 21, 47, 48A, 51A �

Hazardous Waste � Dumping of � Precautionary Principle and polluter pays principle �

Applicability of � Report of High Powered committee relating to presence of Hazardous waste oil in

133 containers lying at Nhava Sheva Port � Illegal import of waste oil in 133 containers in garb of

lubricating oil by importers � Issue of show cause notices to 15 importers to show as to why

consignment not to be ordered to be re-exported or destroyed at their cost � Issue as to

appropriate directions for dealing with consignments in question on basis of precautionary principle

and polluter pays principle � Precautionary principle and polluter pays principle held fully

applicable �Recommendation of Monitoring Committee that only appropriate course to protect

environment was to direct destruction of consignments by incineration � Direction given for

destruction of 133 containers expeditiously by incineration at the cost of importers � Importers

held liable to pay amounts to be spent for destroying hazardous waste on basis of precautionary

principle and polluter pays principle

Precautionary Principle and Polluter pays principle � Meaning of �

JUDGMENT

Y.K. Sabharwal, J.

1. Considering the alarming situation created by dumping of hazardous waste, its generation and

serious and irreversible damage as a result thereof to the environment, flora and fauna, and also

having regard to the magnitude of the problem as a result of failure of the authorities to appreciate

the gravity of situation and the need for prompt measures being taken to prevent serious and

adverse consequences, a High Powered Committee (HPC) was constituted by this Court with

Prof.M.G.K. Menon as its Chairman, in terms of order dated 30th October, 1997. The Committee

comprised of experts from different disciplines and fields and was required to examine all matters in

depth relating to hazardous waste.

2. On consideration of the detailed reports submitted by the HPC various directions have been

issued by this Court from time to time. Presently, we are concerned with the presence of hazardous

waste oil in 133 containers lying at Nhava Sheva Port as noticed by HPC. On the directions of this

Court, the oil contained in the said 133 containers was sent for laboratory test to determine whether

same is hazardous waste oil or not. It has been found to be hazardous waste.

3. On consideration of report of HPC, the result of laboratory test and entire material on record, this

Court came to the prima facie conclusion that importers illegally imported waste oil in 133

containers in the garb of lubricating oil. In terms of the order dated 25th September, 2003, notices

were directed to be issued to 15 importers who imported the said consignment as also to the

Commissioner of Customs. The importers were directed to show cause why the consignment shall

not be ordered to be re-exported or destroyed at their cost. Since, the Ministry of Environment and

Forests had spent a sum of Rs. 6.35 lakhs on the laboratory tests, the importers were also required

to show cause why the said amount be not recovered from them and why all of them shall not be

directed to make payment of compensation on polluter pays principle and other action taken against

them.

4. The affidavits showing cause were filed by the importers. During the course of hearing, one of the

contentions urged on behalf of the importers was that in respect of consignments in question,

adjudicating proceedings were pending before Commissioner of Customs, Mumbai and this Court

may, therefore, defer the decision on the aspect of re-export or destruction of the goods. In the

order dated 11th March, 2004, it was observed that for the purpose of present proceedings, it is

strictly not necessary to await the final decision of adjudication proceedings but a report from the

Commissioner of Customs may assist the court in deciding the aspects indicated in the order dated

25th September, 2003. In this view, the Commissioner of Customs was directed to sent a report to

this Court on the question whether the consignment in issue is waste oil within the meaning of the

term 'waste oil' as per Basel Convention or Hazardous Waste Rules, 1989 as amended in the year

2000 and/or as amended in the year 2003 also having regard to the relevant notifications issued on

this aspect. The Commissioner of Customs was directed, to give reasonable opportunity to the

importers to put forth their viewpoint before him while examining the matter and was further

directed to associate the Monitoring Committee that was constituted in terms of orders dated 14th

October, 2003 reported in 2003 (9) SCALE 303. The question whether any further testing is required

to be done as claimed by the importers was left to be decided by the Commissioner in consultation

with the Monitoring Committee.

5. Detailed reports have been filed by Commissioner of Customs (Imports), Mumbai and the

Monitoring Committee. We have perused the relevant material including those reports and have

heard learned counsel for the petitioner, learned Additional Solicitor General appearing for the

Ministry of Environment and Forests as also learned counsel appearing for the Commissioner of

Customs and other learned counsel representing the importers. It deserves to be noted that the

question to be determined in these proceedings is limited to the environment issue. The issue is in

regard to the appropriate directions for dealing with the consignments in question, having regard to

the precautionary principle and polluter pays principle. The main question is whether directions shall

be issued for the destruction of the consignments with a view to protect the environment and, if

not, in what other manner the consignments may be dealt with.

6. The report of the Commissioner of Customs sets out a brief history of the case, history of various

Conventions and Laws formulated thereupon from time to time, correlating the same to the various

test findings.

The brief history, inter alia, states that :

"In the month of August-September 2000, the Central Intelligence Unit, New Custom House,

Mumbai developed intelligence that large volumes of Furnace Oil were to be imported as

containerized cargo, at the Jawaharlal Nehru Port at undervalued prices. Accordingly the Central

Intelligence Unit maintained a discreet watch at such consignments of Furnace Oil imported at JN

Port. Emphasis was laid on Furnace oil stuffed in containers, as the same was quite unusual. Furnace

Oil is basically imported in bulk on account of its large volumetric requirements by the industry and

its relatively low value makes its import as containerized cargo economically unviable unless the

value is suppressed, or some other mis-declaration was restored to, to offset the increased cost of

packing and transportation in containers. True to the intelligence gathered, a large number of

consignments of Furnace oil, packed in containers arrived at JN port in Aug-Sept and the same were

detained for further investigation. In all these cases the declared prices were in the range of US$ 90

to 125 per MT as against the erstwhile international price of US$ 150, when imported in bulk.

During the course of the investigation, samples were sent to the departmental laboratory for

conducting tests. The standard reference parameters available pertained to those of Fuel Oil under

BIS 1593-1982. Under these standards certain characteristics like Acidity, Ash content, Flash point,

Kinematic viscosity, Sulphur content and Water content for Fuel oils have been prescribed by the

Bureau of Indian Standards and depending on the specifications the fuel oils get divided into four

grades. It is pertinent to note that these standards do not define waste oil or hazardous wastes.

Initial testing of samples, by the Custom House Laboratory, drawn from some of the consignments

indicated that the goods were not Furnace oil. The Laboratory, however, could not categorically

state whether the samples were used/waste oil, as they did not have the standards/specifications of

used/waste oil. Inquiries made with I.O.C. and H.P.C.L also revealed that though they could test and

report whether the oil was conforming to the standards of Fuel/Furnace oil but they were not in a

position to state whether the same were used/waste oil. As categorical test reports were not

forthcoming it was decided to get the samples tested and an opinion obtained from the Central

Revenue Control Laboratory (CRCL), New Delhi. Fourteen samples, pertaining to Vidya Chemical

Corporation, PCS Petrochem, Shiv Priya Overseas, Royal Implex, Eleven Star Escon and Valley

International, were accordingly forwarded to CRCL for testing and their opinion on 24.08.2000. The

test results forwarded by the CRCL in all the 14 samples indicated that none of the samples tallied

with the specifications of Furnace Oil and all were off specification material i.e. waste oil. Thereafter

the CIU seized all the consignments involving 158 containers. One consignment comprising of 25

containers was conditionally released on execution of Bank Guarantee for the differential Duty. Thus

a total of 133 containers were left.

...................................................................

...................................................................

On 5.10.2001 the MPCB forwarded a final report from the UP to the Custom House wherein it was

stated that the halogen content tests were done at the Shriram Institute of Industrial Research (SIIR),

New Delhi and the PCB content tests were done at the National Institute of Oceanography, Goa. The

report concluded that all the 20 samples sent to the IIP were found to be hazardous. In all these

cases, where SCNs had earlier been issued, addendums were issued afresh keeping in view the fact

that since hazardous wastes imported in violation of the provisions of the Environment (Protection)

Act, 1986 had to be re-exported or dealt with as provided for in the Hazardous Wastes

(Management and Handling) Rules, 1988. Personal hearings were held in several cases by the

Commissioner, Mumbai for adjudication of these cases........"

In regard to Basel Convention, the report states as under :

"The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their

Disposal was adopted by the conference of the Plenipotentiaries on 22.03.1989. Article I of the

Convention, dealing with the scope of the convention, defined 'Hazardous Wastes' as follows:

(a) Wastes that belong to any category contained in Annexure I, unless they do not possess any of

the characteristics contained in Annexure III; and

(b) Wastes that arte not covered under paragraph (a) but are defined as or are considered to be,

hazardous wastes by the domestic legislation of the party of export, import or transit.

In the Annexure I to the Convention, referred to above at (a), dealing with categories of wastes to be

controlled, the following categories of Wastes are pertinent to the subject matter:

(a)Y8 Waste mineral oils unfit for their originally intended used

(b)Y9 Waste oils/water, hydrocarbons/ waster mixtures, emulsions

(c)Y10 Waste substances and articles contained or contaminated with polychlorinated biphenyls

(PCBs) and/or polychlorinated terphenyls (PCTs) and/or polybrominated biphenyls (PBBs)

Annex III gives the list of Hazardous Characteristics such as Explosive, Flammable liquids, Flammable

solids, Substances or wastes liable to spontaneous combustion, Substances or wastes which in

contact with water emit flammable gases, Oxidizing, Organic Peroxides, Poisonous, Infectious

substances, Corrosives, Liberation of toxic gases in contact with air or water, Toxic (Delayed or

Chronic), Ecotoxic.

The wastes are further specifically covered under Annex VIII in List A which states that 'Wastes

contained in this Annex are characterized as hazardous under Article I, paragraph 1(a), of this

Convention, and their designation on this Annex does not preclude the use of Annex III to

demonstrate that a waste is not hazardous." In this List A specific attention is drawn towards the

category A3 which deals with 'Wastes containing principally organic constituents, which may contain

metals and inorganic materials.' Sub-division A 3020 of this category deals with Waste mineral oils

unfit for their originally intended use.'

It is nobody's case that the material imported is not mineral oil or of mineral origin. In other words

the category of Wastes to be concentrated upon is A 3020 as it specifically deals with mineral oils.

After identifying the exact category of the material it remains to be seen whether the imported

material possesses any of the characteristics as mentioned in Annex III to the Convention. All the

test reports obtained from the Indian Institute of Petroleum, Dehradun, indicate that the materials

have PCB.

In respect of the impact of the presence of PCBs on the waste oil, reference is made to the Technical

Guidelines on Hazardous Waste: Waste Oils from Petroleum Origins and Sources (Y8)' issued by the

Basel Convention. Paragraph 10, outlining the characteristics of PCBs is reproduced for reference -

Particular concern centers on a family of substances known as polychlorinated biphenyls (PCBs)

which combine excellent insulation and heat transfer characteristics, with high stability and non-

inflammability. However they are environmentally extremely persistent and bio-accumulative, toxic

(and a suspected carcinogen), and if burned under unsuitable conditions, will give rise to toxic

products of combustion including dioxins and dibenzofurans..... Paragraph 30 indicates that several

countries have brought about Legislation to define the concentration of the PCB below which no

concern need be felt and that 50 ppm is the fairly established limit.

All these definitions and various clauses in the Convention indicate that the contents of the

convention cannot be seen in isolation to the follow-up laws framed in this regard by the individual

member countries. The contents of the Convention are only in the form of guidelines to the member

nations and the final question of whether the material is Hazardous Waste or not cannot be

answered on the basis of the contents of the Convention alone. With reference to the presence of

PCBs in waste oils, the National Laws framed need to be examined to categorically state whether the

subject cargo is hazardous or not. The contention of all the importers that their material had not

violated the 50 ppm limit prescribed in the Basel Convention and were thus not Hazardous Waste

has not strength if the same are not examined in the light of the Laws framed by the Country in the

process of aligning with the recommendations of the Convention as the contents of the Convention

are by themselves not any Law that could be implemented (to be discussed later)."

7. The report makes a detailed reference to The Hazardous Wastes (Management and Handling)

Rules, 1989 as introduced in 1989 and amendments effected in January 2000 and in the year 2003.

In regard to amendments made in January 2000 whereafter the imports were made, *he report

notices as under :

"For the purpose of import, Rule 3(i) (c) defined Hazardous Waste as those listed in List 'A' and 'B' of

Schedule-3 (Part A) if they possessed any of the hazardous characteristics listed in Part-B of

Schedule.

List A of Schedule 3 is a reflection of List A as Annex III of the Basel Convention and the hazardous

wastes appearing in this list of Schedule 3 are restricted and cannot be allowed to be imported into

the country without DGFT Licence. In this list attention is drawn to the entry 'Waste mineral oils

unfit for their originally intended use' against Basel No A 3020. Such Waste mineral Oils would be

characterized as hazardous if they possess any of the Characteristics enumerated in Part B of

Schedule 3. The presence of PCB contents in Waste mineral oils renders the material carcinogenic,

bio accumulative and ecotoxic. Therefore, any consignment of Waste mineral Oil having PCB would

be rendered Hazardous."

(Emphasis supplied).

8. Thus, from the rules, it is clear and evident that the presence of PCB contents in any consignment

of waste mineral oil would render such oil as hazardous waste.

9. On the aforesaid basis, most of the consignments have been found to be hazardous waste. The

only consignment imported by Eleven Star Esscon was found not to be hazardous but off

specification fit for re-refining. In respect of one container of Oil imported by Royal Implex though

the samples were not sent to the IIP for further analysis in respect of Organic halides and PCB

determination, the report concluded that it would not be advisable to conduct those tests at that

late stage as the prolonged storage may have deteriorated material further and on the basis of the

test results available it was obvious that the material was not fit for re-refining.

10. The report of the Commissioner of Customs has characterized the goods as hazardous waste. The

conclusions arrived at by Commissioner of Customs are as under:

"The erstwhile Law therefore had enough provisions to determine whether any given sample of Fuel

Oil had hazardous characteristics or not. And based on the directions inherent in these Laws, it has

been conclusively proved that all the subject 133 containers of Furnace oil contain Hazardous Waste

Oil. It is also abundantly clear that this conclusion was arrived at under the provision of the Law

prevalent at that time. The importers had therefore imported Hazardous Wastes in complete and

flagrant violation of the Law. I, therefore, hold and conclude that the goods, viz. Furnace oil

imported and contained in the said 133 containers are hazardous."

11. Noticing that the entire cargo had been imported without proper licence and its movement to

the Country is illegal, reference has been made in the report to Rule 15(2) which provides that (i) the

waste in question shall be shipped back within thirty days either to the exporter or to the exporting

country or (ii) shall be disposed of within thirty days from the date of off-loading subject to inability

to comply with Sub-rule 2(i), in accordance with the procedure laid down by the State Pollution

Control Board or Committee in consultation with Central Pollution Control Board.

12. In regard to the possibility of re-export of the cargo, reference has been made to Article 9(2)(a)

of the Basel Convention which provides that in the case of illegal traffic as a result of conduct on the

part of the exporter, the state of export shall ensure that the waste in question is taken back by the

exporter within 30 days from the time the state of export was informed. It has been stated that even

though there are provisions, both in International Conventions, like Basel Convention, and in our

national laws, a holistic view needs to be taken in view of the prevailing circumstances. The

exporters of the cargo may not take the cargo after 4 years. Besides a whole range of time

consuming protocol measures may be involved. The re-export of cargo at this point of time and

under the conditions in which the cargo was lying has been ruled out also stating that issues like

transportation charges and the ownership and acceptability of the cargo at the destination point

may be highly vexed and difficult to surmount. In this backdrop, the possibility of disposal locally as a

one-time measure was examined.

13. Regarding the disposal of the imported hazardous waste, the report states that certain drastic

one-time measures are required to be taken. Both the modes of disposal, i.e. by subjecting the

waste to re-cycling and alternatively by incinerating it, were examined. It has been suggested that

overlooking the PCB presence up to 50 ppm, if the waste oil conformed to the other specifications

mentioned in Schedule 6, then such consignments may be considered for recycling. These

consignments could be adjudicated and released to the importers only under the condition that they

would get the material recycled, under the control and supervision of the Central Pollution Control

Board authorities, in Units registered with MOEF and having consent/authorization from by the

State Pollution Control Board. Further suggestion is that consignments not conforming to the

specifications of Schedule 6 and/or having PCB in excess of 50 ppm may be subjected to incineration

at the importer's cost at the Hazardous Incinerator under supervision of the State Pollution Control

Board. In cases where the cargo is required to be incinerated, besides cleaning the pollution caused

due to leakages, the suggestions is that the importer may also be directed to bear the cost of

transportation to the incineration site, its handling there and its incineration costs till final disposal.

14. Further, the report recommends that the importers may be directed to pay all the testing

charges incurred by MPCB (Rs. 6.5 lakhs) and Customs (Rs. 7.5 lakhs approximately) from the initial

stage and till final disposal of goods. It also notices that the two importers did not appear for

personal hearing despite several reminders. All the 15 importers have been divided into five

different categories.

15. In category one, there are 10 importers in respect whereof recommendations is for recycling or

incineration. One importer-Indochem has been placed in category two in which though sample

passed other tests, but presence of PCB rendered the goods hazardous. The recommendation is for

release of goods to the importer. The sample of Royal Impex has higher lead content and not fit for

recycling. Sample was not tested for PCB contents. Placing it in category three, recommendation is

that request for re-export may be considered by this Court. The import of Eleven Star Esscon has

been placed in category four. These goods have been confiscated absolutely. The goods have heavy

metal concentrations but within recycling limits and do not have organic holds and PCBs. Recycling

has been recommended. The two importers who were proceeded exports have been placed in

category five and recommendation is that action on above lines be taken.

16. The attention of this Court has been drawn to the condition of the waste oil stock lying in the

Customs area pointing out that many of the drums have exploded and the contents are spread in the

area which is definitely a fire hazard and is also causing grave damage to the environment.

17. The report further points out that in addition to the 133 containers, another group of imports by

various parties comprising of an additional 170 containers, which had been imported after the

import of 133 containers, are also lodged with the Custodians in the same area and are more or less

in the same condition. It has also been pointed out that the importers of these 170 containers have

not filed any import clearance documents with the Customs so far.

18. The aforesaid report of Commissioner of Customs has been considered by the Monitoring

Committee. The Monitoring Committee has recommended disposal of all consignments except one

by incineration in consultation with two Pollution Control Boards mentioned in its report. It has

noticed that adequate facilities are not available even with registered refiners for re-refining oil

containing PCBs. Notice has also been taken of the fact that the Director, IIP, Dehradun has

mentioned that since all 133 containers have been lying at Mumbai Port since 2000, the oil would

have undergone considerable degradation in last four years. Another important factor that has been

taken into consideration is about the cost of re-refining being exorbitant and, therefore, it was not

economically feasible to re-refine the oil in question.

19. In respect of consignments of category one, learned counsel for importers sought to contend

that PCBs were within the limits prescribed by the Basel Convention and also that the same were of

small quantity, it being minimal and negligible and, therefore, the recommendation of the

Monitoring Committee for destruction of oil by incineration does not deserve to be accepted.

Reference was also made to Technical Guidelines on Hazardous Waste: Waste Oils From Petroleum

Origins and Sources [(Y8) Basel Convention] to contend that the presence of PCBs and waste oil as a

secondary fuel upto 50 PPM was fairly acceptable in respect of marketing and use. On this basis and

with reference to the test report, it was contended that since the PCB in the consignments in

question being minimal and negligible, there was no contravention of the Basel Convention. It was

contended that as per recommendations of Commissioner of Customs re-refining was possible but

the Monitoring Committee has only recommended destruction by incineration without any legal

basis.

20. The Monitoring Committee comprises of experts in the field. It has recommended destruction of

the consignment by incineration. The PCBs may be within permissible limit insofar as parameters of

Basel Convention are concerned but, at the same time, it has to be kept in view that parameters

fixed by the Basel Convention are only guidelines and the individual countries can provide different

criterion in their national law to lay down the limits of concentration of PCBs so as to label it as

hazardous waste. Even European Community is considering to reduce PCBs concentration from 50

PPM to 20 PPM to make it consistent with the limits on oils being used as fuel. Be that as it may,

insofar as our country is concerned, the provision is that the presence of PCBs shall be of non-

detectable level. The national law laying stricter condition has to prevail. The Commissioner of

Customs, on detailed examination, has concluded that the import was in complete and flagrant

violation of law. The import is of hazardous Waste. In the garb of furnace oil, hazardous waste has

been imported. Further, many of the drums have exploded and the contents spread in the area

which besides being a fire hazard is also causing grave damage to the environments. PCBs are

environmentally extremely persistent and bio-accumulative, toxic (and a suspected carcinogen), and

if burnt under unsuitable conditions, will give rise to toxic products of combustion including dioxins

and dibenzofurans. Great care is required in assessing and selecting disposal options for such oils.

The CPCB which is implementing the Registration Scheme for actual users of hazardous wastes

including used/waste oil, is of the opinion that adequate facilities are not available even with

registered refiners for re-refining oil containing PCBs. That apart, oil regeneration technologies

depend to some degree of quality of waste oil. Regeneration process involves the application of

reasonably sophisticated technology and require care and expertise in their operation. The illegally

imported oils remained on the Port for four years and would have undergone considerable

degradation during this period. Nothing tangible has been shown so as to take a view different than

the one recommended by the Monitoring Committee.

21. Learned counsel appearing for Royal Impex contended that in the consignment imported by it

only Ash contents were more as per the test report on record and, therefore, the consignment may

be released to the importer. It was also contended that the sample was not sent to IIP for further

test in respect of organic halides and PCB determination. The report, however, states that it may not

be feasible to conduct those tests now as prolonged storage may have deteriorated the material

further. According to the report of the Commissioner of Customs on the basis of the test results

available, the material was not fit for recycling. Our attention was drawn by learned counsel for the

importer to the test report of New Custom House Laboratory which only shows that ash contents

were more and contention urged was that the conclusion arrived by the Commissioner of Customs

that the material was off specification and on account of higher lead contents, it was not fit for

recycling is without any basis. It was contended that the test report of Central Revenue Control

Laboratory (CRCL) was not on record and on that basis, submission made is that the conclusion that

the samples were tested at CRCL which showed that lead contents exceeded the limits prescribed

for re-refining was wholly untenable. On directions of this Court, learned counsel for the

Commissioner of Customs has filed before us a copy of the report of CRCL which shows the lead

MG/LIT being 2824.87. This high percentage of lead was against the prescribed used oil specification

for re-refining being 100 PPM. Further, from the reply dated 7th May, 2004 sent to the show cause

notice dated 13th April, 2004, the importer did not ask for testing of oil to determine PCB contents.

On the other hand, the stand in the said reply is that if sample is tested after passage of four years,

the nature of oil would have changed considerably and the oil may have certain impurities and,

therefore, the testing of oil will not be an accurate method to ascertain the genuineness of the oil at

the time it was imported. Even before us, the submission is not that the sample should now be sent

for testing. We do not think that at this stage, the consignment can be allowed to be re-exported

though agreed to by the Monitoring Committee. It also cannot be allowed to be recycled. The oil

deserves to be incinerated.

22. In respect of import effected by Eleven Star Esscon, heavy metal concentrations are within

recycling limits. It does not have organic halides and PCBs. Recommendation of the Commissioner of

Customs is for its recycling. The Monitoring Committee has, however, recommended its incineration

possibly in view of its deterioration for about four years when the consignment was lying at the Port.

The consignment has been confiscated absolutely. It is now the Government's property. Learned

counsel for the importer Eleven Star Esscon has not challenged the confiscation and has rather

contended that his client has no intention to challenge the same. In view of the finding that the

heavy metals are within recycling limits, there were no organic halides and the PCBs and the

consignment has been found to be fit for recycling, we feel that the recycling deserves to be

permitted as recommended by Commissioner of Customs but the same shall be done under the

supervision of the Monitoring Committee. Having so permitted, we may note that the cost of

recycling may be very exorbitant and it may not be economically viable. If recycling is not considered

advisable by the Government, the consignment shall have to be destroyed by incineration in the

same manner as other consignments. The decision whether the Government desires the

consignment to be recycled shall be taken within a period of four weeks failing which the

consignment shall be destroyed by incineration along with other consignments. The cost of

incineration shall be paid by the Government.

23. According to the Monitoring Committee, the cost of incineration will be at the rate of Rs. 12/-

per kilo which also include the cost of transport to be paid by the importers in advance.

24. The liability of the importers to pay the amounts to be spent for destroying the goods in question

cannot be doubted on applicability of precautionary principle and polluter pays principle. These

principles are part of the environmental law of India. There is constitutional mandate to protect and

improve the environment. In order to fulfill the constitutional mandate various legislations have

been enacted with attempt to solve the problem of environmental degradation.

25. In respect of the precautionary principle, Rio Declaration (Principle No. 15) provides that where

there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as

reason for postponing cost effective measures to prevent environmental degradation. This principle

generally describes an approach to the protection of the environment or human health based

around precaution even where there is no clear evidence of harm or risk of harm from an activity or

substance. It is a part of principle of sustainable development, it provides for taking protection

against specific environmental hazards by avoiding or reducing environmental risks before specific

harms are experienced.

26. Having regard to the aforesaid principle, the import of waste oil containing PCBs of detectable

limit has been banned in India. The fact that PCBs content in the consignments was only marginal or

minimal and under Basel Convention its permissible limit is 50 PPM, is of no consequence. Judging

by Indian conditions, our law has provided the limit of PCBs which if of detectable limits, the import

is not allowed. The national law has to apply and shelter cannot be taken under guidelines of Basel

Convention.

27. The polluter pays principle basically means that the producer of goods or other items should be

responsible for the cost of preventing or dealing with any pollution that the process causes. This

includes environmental cost as well as direct cost to the people or property, it also covers cost

incurred in avoiding pollution and not just those related to remedying any damage. It will include full

environmental cost and not just those which are immediately tangible. The principle also does not

mean that the polluter can pollute and pay for it. The nature and extent of cost and the

circumstances in which the principle will apply may differ from case to case.

28. The observations in Deepak Nitrite Ltd. v. State of Gujarat and Ors. that 'mere violation of the

law in not observing the norms would result in degradation of environment would not be correct' is

evidently confined to the facts of that case. In the said case the fact that the industrial units had not

conformed with the standards prescribed by the pollution control board was not in dispute but there

was no finding that the said circumstance had caused damage to environment. The decision also

cannot be said to have laid down a proposition that in absence of actual degradation of environment

by the offending activities, the payment for repair on application of the polluter pays principle

cannot be ordered. The said case is not relevant for considering the cases like the present one where

offending activities has the potential of degrading the environment. In any case, in the present case,

the point simply is about the payments to be made for the expenditure to be incurred for the

destruction of imported hazardous waste and amount spent for conducting tests for determining

whether it is such a waste or not. The law prescribes that on the detection of PCBs in the furnace or

lubricating oil, the same would come within the definition of hazardous waste. Apart from polluter

pays principle, support can also be had from principle 16 of the Rio Declaration, which provides that

national authorities should endeavour to promote the internalisation of environmental costs and the

use of economic instruments, taking into account the approach that the polluter should, in principle,

bear the cost of pollution, with due regard to the public interests and without distorting

international trade and investment.

29. Further, learned counsel for the petitioner strenuously contended that the exemplary and/or

penal damages shall also be levied on the offending importers. In a given case, it may be possible to

levy such damages depending as well upon the nature and extent of offending activity, the nature of

offending party, the intention behind such activity but in the present case in absence of clear finding

on these aspects, it is unnecessary to examine this aspect in depth. It is, however, to be borne in

mind that in India the liability to pay compensation to affected persons is strict and absolute and the

rule laid down in Rylands v. Fletcher has been held to be not applicable.

30. In M.C. Mehta and Anr. v. Union of India and Ors. a Constitution Bench has held that the rule in

Rylands v. Fletcher laid down the principle of liability that if a person who brings on to his land and

collects and keeps there anything likely to do harm and such thing escapes and does damage to

another, he is liable to compensate for the damage caused. This rule applies only to non-natural user

of the land and it does not apply to things naturally on the land or where the escape is due to an act

of God and an act of a stranger or the default of the person injured or where the thing which

escapes is present by the consent of the person injured or in certain cases where there is a statutory

authority. This rule evolved in the 19th century at a time when all the developments of science and

technology had not taken place cannot afford any guidance in evolving any standard of liability

consistent with the constitutional norms and the needs of the present day economy and social

structure. In a modem industrial society with highly developed scientific knowledge and technology

where hazardous or inherently dangerous industries are necessary to be carried on as part of the

developmental programme, Court should not feel inhibited by this rule merely because the new law

does not recognize the rule of strict and absolute liability in case of an enterprise engaged in

hazardous and dangerous activity. Law has to grow in order to satisfy the needs of the fast-changing

society and keep abreast with the economic developments taking place in the country. Law cannot

afford to remain static. The Court cannot allow judicial thinking to be constricted by reference to the

law as it prevails in England or in any other foreign country. Though the Court should be prepared to

receive light from whatever source it comes but it has to build up its own jurisprudence. It has to

evolve new principles and lay down new norms which would adequately deal with the new problems

which arise in a highly industrialized economy. If it is found that it is necessary to construct a new

principle of liability to deal with an unusual situation which has arisen and which is likely to arise in

future on account of hazardous or inherently dangerous industries which are concomitant to an

industrial economy, the Court should not hesitate to evolve such principle of liability because it has

not been so done in England, An enterprise which is engaged in a hazardous or inherently dangerous

industry which poses a potential threat to the health and safety of the persons working in the

factory and residing in the surrounding areas owes an absolute and non-delegable duty to the

community to ensure that no harm results to anyone. The enterprise must be held to be under an

obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must

be conducted with the highest standards of safety and if any harm results to anyone on account of

an accident in the operation of such activity resulting, for example, in escape of toxic gas the

enterprise is strictly and absolutely liable to compensate all those who are affected by the accident

as a part of the social cost for carrying on such activity, regardless of whether it is carried on

carefully or not. Such liability is not subject to any of the exceptions which operate vis-a-vis the

tortuous principle of strict liability under the rule in Rylands v. Fletcher. If the enterprise is permitted

to carry on a hazardous or inherently dangerous activity for its profit, the law must presume that

such permission is conditional on the enterprise absorbing the cost of any accident arising on

account of such activity as an appropriate items of its overheads. The enterprise alone has the

resource to discover and guard against hazards or dangers and to provide warning against potential

hazards.

31. The polluter pays principle was applied in Indian Council for Enviro-Legal Action and Ors. v. Union

of India and Ors. to fasten liability for defraying the costs of remedial measures. The task of

determining the amount required for carrying out the remedial measures, its recovery/realization

and the task of undertaking the remedial measures was placed in this case upon the Central

Government. In the present case the approximate expenditure to be incurred for destroying the

hazardous waste has been mentioned in report.

32. In Vellore Citizens' Welfare Forum v. Union of India and Ors. the precautionary principles and

polluter pays principle were held to be part of the environmental law of the country. It was held that

the polluter pays principle means that the absolute liability for harm to the environment extends not

only to compensate the victims of pollution but also the cost of restoring the environmental

degradation. Remediation of the damaged environment is part of the process of sustainable

development.

33. In this very case, i.e., Research Foundation For Science Technology National Resource Policy v.

Union of India and Anr. [2003 (9) SCALE 303] while examining the precautionary principle and

polluter pays principle, the legal principles noticed in brief were :-

"The legal position regarding applicability of the precautionary principle and polluter pays principle

which are part of the concept of sustainable development in our country is now well settled. In

Vellore Citizens' Welfare Forum v. Union of India and Ors., a three Judge Bench of this Court, after

referring to the principles evolved in various international conferences and to the concept, of

"sustainable development", inter alia, held that the precautionary principle and polluter pays

principle have now emerged and govern the law in our country, as is clear from Articles 47, 48-A and

51-A (g) of our Constitution and that, in fact, in the various environmental statutes including the

Environment (Protection Act, 1986, these concepts are already implied. These principles have been

held to have become part of our law. Further, it was observed in Vellore Citizens' Welfare Forum's

case that these principles are accepted as part of the customary international law and hence there

should be no difficulty in accepting them as part of our domestic law. Reference may also be made

to the decision in the case of A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and Ors.

[(1996) 5 SCC 718] where, after referring to the principles noticed in Vellore Citizens' Welfare

Forum's Case, the same have been explained in more detail with a view to enable the Courts and the

Tribunals or environmental authorities to properly apply the said principles in the matters which

come before them. In this decision, it has also been observed that the principle of good governance

is an accepted principle of international and domestic laws. It comprises of the rule of law, effective

State institutions, transparency and accountability and public affairs, respect for human rights and

the meaningful participation of citizens in the political process of their countries and in the decisions

affecting their lives. Reference has also been made to Article 7 of the draft approved by the working

group of the International Law Commission in 1996 on "Prevention of Trans-boundary Damage from

Hazardous Activities" to include the need for the State to take necessary "legislative, administrative

and other actions" to implement the duty of prevention of environmental harm. Environmental

concerns have been placed at same pedestal as human rights concerns, both being traced to Article

21 of the Constitution of India. It is the duty of this Court to render justice by taking all aspects into

consideration. It has also been observed that with a view to ensure that there is neither danger to

the environment nor to the ecology and, at the same time, ensuring sustainable development, the

Court can refer scientific and technical aspects for an investigation and opinion to expert bodies. The

provisions of a covenant which elucidate and go to effectuate the fundamental rights guaranteed by

our Constitution, can be relied upon by Courts as facets of those fundamental rights and hence

enforceable as such {see People's Union for Civil Liberties v. Union of India and Anr. �The Basel

Convention, it cannot be doubted, effectuates the fundamental rights guaranteed under Article 21.

The rights to information and community participation for protection of environment and human

health is also a right which flows from Article 21. The Government and authorities have, thus to

motivate the public participation. These well-shrined principles have been kept in view by us while

examining and determining various aspect and facets of the problems in issue and the permissible

remedies."

34. The aforenoted precautionary principles are fully applicable to the facts and circumstances of the

case and we have no manner of doubt that the only appropriate course to protect environments is

to direct the destruction of the consignments by incineration in terms discussed above and as

recommended by the Monitoring Committee.

35. It seems that by disposal of the oil under the supervision of Monitoring Committee at the

incinerators which have adequate facilities to destroy the oil at a required temperature, there would

be no impact on environments.

36. In regard to 170 containers referred to in the report of the Commissioner of Customs which are

also lodged in the same premises in more or less same condition, the Monitoring Committee has

noted that these containers have not been claimed by the importers. The details of the importers of

these consignments are not on record. Before we issue directions in respect of these 170 containers,

it would be necessary to have on record the details of these imports. The concerned authorities, i.e.,

Jawaharlal Nehru Port or Mumbai Port and all other concerned Departments are directed to furnish

to the Monitoring Committee within four weeks up to date information as to the import of the 170

containers, how the consignment was dealt with right from the date of the arrival till date. The

Monitoring Committee shall file a report along with its recommendations and on consideration

thereof, necessary directions in regard to 170 containers would be issued.

37. The aforesaid 133 containers are directed to be expeditiously destroyed by incineration as per

the recommendations of the Monitoring Committee and under its supervision subject to and in

terms of this order. The cost of incineration shall be deposited by the importers with the Monitoring

Committee within four weeks. The Monitoring Committee will ensure the timely destruction of the

oil at the incinerators mentioned in its report. After the destruction of the oil in question, a

compliance report shall be filed by the Monitoring Committee. All concerned are directed to render

full assistance and cooperation to the Monitoring Committee. In regard to the consignment of

Eleven Star Esscon, in case option for recycling is exercised by the Government, the recycling would

be done under the supervision of the Monitoring Committee. If the request for recycling is not

received by the Monitoring Committee within four weeks, the said consignment would also be

destroyed in the same manner as the other consignments.


Writ Petition (Civil) No. 460/2004

Appellants: Goa Foundation Vs. Respondent: Union of India (UOI):Decided On: 22.02.2005

Hon'ble Judges:

Y.K. Sabharwal and P.P. Naolekar, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: Raj Panjwani and Purnima Bhat, Advs.

For Respondents/Defendant: A. Sharan, ASG and Anil Katiyar, Adv.


Catch Words

Acts/Rules/Orders:

Environment Protection Act, 1986

Case Note:

Environment - Environment Protection Act, 1986 - Non-compliance of Environmental law � Effect

� Issuance of an order dated 17.12.2004 directing closure of defaulting units operating in violation

of environmental laws � Affidavit filed by Joint Secretary, Ministry of Environment and Forests,

Government of India purportedly in compliance of order � However since there being non

compliance of order in letter and spirit � Direction given to government of India to issue requisite

order within a period of 10 days directing closure of defaulting units

ORDER

1. Pursuant to the Order dated 17.12.2004 an affidavit of R. Chandramohan, Joint Secretary, Ministry

of Environment and Forests, Government of India, has been filed though belatedly on 10.2.2005. The

affidavit though purports to be in compliance with the Order dated 17.12.2004, but in letter and

spirit it is far from complying that order. It is more in the nature of completing the formality. The

querries raised in the said Order have still not been answered fully. Alongwith the affidavit only

copies of some of the letters i.e. Dated 13.1.2005, 4.2.2005 and 7.2.2005 have been annexed. The

Government of India is not powerless to ensure compliance with the environmental laws in

particular Environment Protection Act, 1986. In these circumstances, we direct Government of India

to issue requisite order within a period of 10 days directing closure of defaulting units continuing to

operate in violation of environmental laws. The State Governments are directed to comply the

statutory directions issued by the Government of India. The respondent-Government of India is

directed to file a compliance report within six weeks giving details of units may be closed as a result

of this Order.

2. List after six weeks.


Civil Appeal No. 1511 of 2005 [Arising out of S.L.P. (Civil) No. 23803 of 2004]

Appellants: Sushanta Tagore and Ors. Vs. Respondent: Union of India (UOI) and Ors.:Decided On:

03.03.2005

Hon'ble Judges:

N. Santosh Hegde and S.B. Sinha, JJ.

Counsels:

For Appearing parties: R. Mohan, Additional Solicitor General, Soli J. Sorabjee, G.L. Sanghi and T.S.

Doabia, Sr. Advs. and Rana Mukherjee, Prateek Jalan, Siddharth Gautam, Ardhendumauli K. Prasad,

Goodwill Indeevar, Vivek Narayan S., Asha Naryar Basu, Pranab Kumar Mullick, H.K. Puri, Ujjwal

Banerjee, S.K. Puri, Shiv Gupta, Priya Puri, V.M. Chauhan, Avijit Bhattacharjee, Atanu Saikia, V.G.

Pragasam, Gautam Banerjee, P.D. Sharma, T.A. Khan and D.S. Mahra, Advs.



Catch Words

Acts/Rules/Orders:

West Bengal Estate Acquisition Act, 1953 - Sections 4, 5A, 5B, 6, 6(32) and 7; West Bengal Town and

Country (Planning and Development) Act, 1979 - Section 37; The Visva-Bharati Act, 1951; West

Bengal Housing Board Act, 1972; Parliamentary Act; Constitution of India - Articles 12, 21 and 51A

Prior History:

From the Judgment and Order dated 20.8.2004 of the Calcutta High court in W.P. No.

19443/2003(W) in C.A. No. 4327 of 2004

Mentioned IN

Case Note:

Constitution - West Bengal Estate Acquisition Act, 1953 - Sections 4, 5A, 5B, 6, 6(32), 7 - West Bengal

Town and Country (Planning and Development) Act, 1979 - Section 37 - The Visva-Bharati Act, 1951 -

Public Interest litigation � Appellants residents of Santiniketan in State of West Bengal � Aggrieved

by continuing process of defacement of ambiance and environment of areas around Visva Bharati

University, conceived and founded by Tagore, appellants filed PIL � Grievance of appellants that

encroachment upon ambiance was committed by reason of indiscriminate constructions by

developers and promoters in utter disregard of environmental and pollution control laws � Second

Schedule to Vishva Bharati Act, 1951 provided for an area known as Santiniketan admeasuring 3000

hectares � Acquisition of 1761 acres of land out of 3000 acres for University � High Court

dismissed PIL holding that University not being owner of entire 3000 acres of land, no relief could be

granted - Although High Court observed that continued increase of building activities would slowly

change place almost beyond recognition of poet � However held that such changes were necessary

having regard to continued increase in population of Santiniketan � Validity �Although it may be

true that development of a town is job of town planning authority but same should conform to

requirements of law - Hence a land use plan should be prepared not only having regard to provisions

contained in 1979 Act and rules and regulations framed thereunder but also provisions of other

statues enacted therefor and in particular those for protection and preservation of ecology and

environment - Issue of directions by Pollution Control Board for preservation and conservation for

cultural, historical, archaeological, environmental and ecological purposes held binding on State as

well as SSDA - As Visva Bharati being not only a University of national importance but also a unitary

one, its environmental ambiance, ought to be maintained - Only because some advantages would

ensue to people in general by reason of proposed development, same would not mean that ecology

of place would be sacrificed � Direction given for land use and future planning of Santiniketan in

such a manner so that the changes be brought about would not be beyond recognition of the poet

as also provisions of Act

JUDGMENT

S.B. Sinha, J.

1. Leave granted.

INTRODUCTORY REMARKS:

2. The Appellants herein are residents of Santiniketan in the District of Birbhum of the State of West

Bengal.

3. Visva Bharati University (University) was conceived and established by Rabindranath Tagore, the

great poet, story writer, song composer, playwright, essayist, painter, educational and Nobel

Laureate, on 23rd December, 1921.

4. An environment ambiance had all along been maintained in consonance with the ideals of Tagore

and for which the same was established.

THE ACT:

5.The Parliament with a view to preserve and protect the uniqueness, tradition and special features

of the said University, in exercise of its legislative power conferred on it under Entry 63, List I of the

Seven Schedule of the Constitution of India enacted The Visva-Bharati Act, 1951 (the Act) declaring it

to be an institution of national importance. The University was constituted as an unitary, teaching

and residential University with a view to preserve the tradition and special features of institution, as

would appear from its Statements of Objects and Reasons which are as under:

"The Visva-Bharati founded by Dr. Rabindranath Tagore at Santiniketan in 1921 is a unique

institution, and has since its inception served as a centre for the study of, and research in, the

different cultures of the East on the basis of their underlying unity, and has sought to approach the

West from the stand-point of such a unity of the life and thought of Asia. The Institution has

acquired a world-wide recognition and has attracted scholars and pupils from many countries all

over the world.

2. The University Education Commission commended the special and very valuable work done by

this institution, particularly its "effect to discovery, preserve and transmit the vast elements of old

Indian culture, and the work with the surrounding villages" and recommended that the Visva-Bharati

should be given a provisional Charter as a University with suitable capital and recurring grants. The

recommendations of he University Education commission were approved by the Central Adversory

Board of Education at its meeting in April, 1950, and the Government of West Bengal agree to the

establishment of a unitary, teaching and residential University at Santiniketan by an Act of

Parliament.

3. There is no provision in the Constitution of India for the grant of a Charter (as distinct from an Act)

as recommended by the University Education Commission, but the Constitution makes the Union

Government responsible for institutions declared by law to be of national importance (vide item 63

of List I of the Seventh Schedule to the Constitution).

4. It is, therefore, proposed to make such a declaration and have the Visva-Bharati constituted as a

Central University. The constitution that is proposed to be given to Visva-Bharati is in conformity

with the recommendations made by the University Education Commission with such modifications

as are considered necessary to preserve the tradition and special features of the institution."

6. Section 4 of the Act provides for incorporation of the University. The object of the University in

terms of Section 5A thereof was to disseminate and advance knowledge and understanding by

providing instructional, extension and research facilities and by the example and influence of its

corporate life, and in organizing its activities, have due regard to the objects specified therein for

which the Visva-Bharati at Santiniketan was founded by Rabindranath Tagore, as expressed in his

own words including "to see to realize in a common fellowship of study the meeting of the East and

the West, and thus ultimately to strengthen the fundamental conditions of world peace through the

establishment of free communication of ideas between the two hemispheres".

7. Section 5B provides for the principles to be followed in organizing the activities of the University,

in respect whereof as also for implementation of its academic programmes shall have due regard to

the pattern of education envisaged by Rabindranath Tagore in his writings.

8. Section 6 provides for the power of the University some of which are:

"(6) to establish and maintain such Bhavanas, Schools of Studies and Research, Chatravasas,

Gymnasia and such other institutions as are deemed necessary, from time to time, for the

development of healthy corporate life in the University and to abolish any such Bhavana School,

Chatravasa, Gymnasium or other institution;

(7) to establish; at any place in India, campuses, special centres, specialized laboratories or other

units for research and instruction as are, in the opinion of the University, necessary for the

furtherance of its objects;

(9) to undertake the promotion of adult education, rural reconstruction, co-operative organizations,

social welfare, development of cottage industries and all other nation-building activities and works

for the benefit of public;

(32) to establish campuses within the territorial limits of the University specified in the Second

Schedule;"

9. By reason of Section 7 of the Act, the powers of the University conferred by or under this Act shall

be restricted to the area specified in the Second Schedule.

10. The Second Schedule appended to the Act provides for an area known as Santiniketan

admeasuring 3000 hectares bounded on the North by the Kopai River, on the west by a line running

from Ballavpur and Bonuri villages to Bandgora, on the south by a line running from Bandgora via

Bolpur Dak Bungalow to the bridge over the Eastern Railway cutting, and, on the east by the Eastern

Railway line.

PUBLIC INTEREST LITIGATION:

11. The Appellants herein who are residents of Santiniketan filed a public interest litigation before

the Calcutta High Court aggrieved by the continuing process of defacement of the ambiance and

environment which was destroying the very ideals and purpose for which Visva Bharati was

conceived and founded by Tagore. Such encroachment upon the ambiance is said to have been

committed by reason of indiscriminate constructions and in particular construction of residential

cum commercial complexes by developers and promoters in utter disregard of, inter alia,

environmental and pollution control laws and requirements which had endangered the very

purpose, tradition and objective with which Visva Bharati was established and which was thereafter

sought to be preserved by the Act. The Appellants herein who are in particular aggrieved by

proposed constructions which are likely to come up in the area known as Khoai being land created in

the natural process through running rain water for millennia which is a rare natural phenomenon

and which, if destroyed, cannot be restored even with the help of science and, thus, requires

preservation, approached the High Court in the said proceedings.

RESPONDENTS' CONTENTIONS:

12. The Legislature of the State of West Bengal enacted the West Bengal Town and Country

(Planning and Development) Act, 1979 to provide for the planned development of rural and urban

areas in West Bengal and for matters connected therewith or incidental thereto.

13. The State of West Bengal claims to be owner of the lands situated at Santiniketan being vested in

it under Section 4 of the West Bengal Estate Acquisition Act, 1953. It is, however, not disputed that

1761 acres of land, according to Sriniketan Santiniketan Development Authority (SSDA) (1127 acres,

according to the University), were acquired for the University within the aforementioned 3000

hectares of land.

14. The Respondents contend that the Universities which are either declared to be of National

Importance or have been set up by the State only contain a territorial jurisdiction for the sole

purpose of academic activities and Section 7 of the Act must be interpreted accordingly. Academic

territorial jurisdiction, according to Respondents, would not confer any title thereupon in the

University. The area which was in contemplation of Rabindranath Tagore is said to be known as the

"Deer Park Area" as in 1870, i.e., around the time when the said composition was made there was

only one barrage or bandh, in Santiniketan , which is still in existence and is known as "Lal Bandh". A

decision to develop the said area was taken whereupon a Land Use Map was published and

objections thereto were invited. Upon consideration of such objections, some modifications in Land

Use Development and Control Plan were made out and the same received the approval of the State

of West Bengal in terms of Section 37 of 1979 Act. The Government of West Bengal allegedly

sanctioned long term settlement of the government land as mentioned in the Government Order

dated 25th April, 2003 in favour of SSDA. Pursuant thereto or in furtherance thereof SSDA has

entered into an agreement with Bengal Ambuja Cement Housing Development Ltd. which is a joint

sector company of West Bengal Housing Board, a body corporate formed under the West Bengal

Housing Board Act, 1972 and Gujarat Ambuja Cements Ltd. having equal participation of 49.99%. It is

contended that the proposed constructions are being made at a minimum distance of 250 metres of

Visva Bharati area and in terms of the land use and development plan no development is permitted

within 50 metres outside the boundary of Visva Bharati University. In its counter affidavit, SSDA

contended:

"(Ac) The proposed development of the said plot will be advantageous in all respects. Had the

project not being undertaken the said plot would be occupied by encroachers and unauthorised

buildings constructed by them. Areas nearby have been encroached upon by private persons and

buildings have been constructed. Under the planned development much, lesser area than

permissible under SSDA will be covered and accordingly there will be considerable open space in

addition to 3 acres of land for greenery. No building will exceed permissible height as mentioned

hereinbefore. There will be primary school, which in very much needed in the area. Unauthorised

structures on the plot have been mostly removed but still some of them exist. Revenue to be

received by SSDA out of this project is to be utilized for carrying out various other projects for public

purpose. SSDA has undertaken various works of public benefit. Several roads have been developed

project for supply of potable water has been undertaken and has been substantially implemented.

Further implementation in other area is also under process. Genuine residents of Santiniketan will

be benefited out of the said works undertaken by SSDA."

HIGH COURT:

15. A Division Bench of the High Court dismissed the said public interest litigation holding that the

University being not the owner of the entire 3000 hectares of land no relief can be granted. While

arriving at the said finding, it was opined:

(i) "...If it is not Vishwabharati's special dominion land for setting up campuses as and when it so will,

then the State has authority to deal with the same in accordance with law, because there are no

other objectors. It is not illegal to set-up reasonably peaceful activities or abodes of citizens, near or

even very near, Universities."

(ii) "That the continued increase of population in Santiniketan and the continued increase of building

activities there, will slowly change the place almost beyond the recognition of the poet, if he were to

be alive even today, cannot be disputed."

(iii) "The Act contain no indication that by reason of any spirit of the Act,or the spirit of the poet,

Santiniketan is to be made into such an exclusive spot forever."

(iv) "Moreover, assuming that the building activity is to take place only in accordance with the spirit

and ideas of the poet, Rabindra Nath Tagore, how, we ask ourselves, is such activity to be monitored

in the practical World? Will every building make an application first to the Vishwabharati University,

seeking permission? Will every such case of permission ultimately travel to the Public Interest

Litigation Court, for us to decide ultimately whether the building activity would be in keeping with

the old ideas of the old Santiniketan? In our opinion, this is an unreasonable and, therefore, an

illegal and an impractical way of thought. The building activity can be mentioned and controlled only

if some law says that it is to be so monitored and controlled, and also lays down specific ways in

which such restrictions are to be imposed by specified or named authorities. None of the laws

shown to us prevents the Bengal Ambuja Project."

(v) "We are of the opinion that the Bengal Ambuja Housing Complex will, to that extent, change the

topography of Santiniketan in the canal front but that there is no public interest which calls for

restraint of such a change. In our opinion, the University activities can go on with substantially the

same amount of vigour and benefit to mankind whether we are aware that we are going a long way

in saying this, but still we do state this to do so, the Santiniketan outside the University becomes a

residential town or even an Industrial town, provided the growth is planned, systematic and in

accordance with the laws relating to freedom from population."

SUBMISSIONS:

16. Mr. Soli. J. Sorabjee, learned senior counsel appearing on behalf of the Appellants, in assailing

the judgment of the High Court, would submit that the issues raised in the writ petition must be

considered having regard to the purposes for which the Act was enacted and having regard to its

Preamble and the Statement of its Objects and Reasons. Activities going against the tenor the said

Act, Mr. Sorabjee would contend, should not be permitted.

17. The learned counsel submitted that the findings of the High Court to the effect changes

necessary to be brought about in the topography and the same would slowly change the place

almost beyond the recognition of the poet, if he were to be alive even today as fallacious inasmuch

postulate such activities which the Act intends to prevent. Comparison of the said University with

other universities, Mr. Sorabjee argued, is wholly misconceived. Mandate of the Act, according to

Mr. Sorabjee, provides for guidelines to maintain the ambiance of entire Santiniketan which will

itself be in public interest. If by reason of the activities, the character of the place sought to be

preserved by the Act is changed beyond recognition and topography of Santiniketan itself is affected

thereby, the Court should invoke the doctrine of 'implied prohibition' for giving a true meaning of

the Act. Our attention in this connection has been drawn to a report of the West Bengal Pollution

Control Board. It was urged that although the said report was in relation to the construction

activities carried out by M/s. Bengal Peerless Housing Development Company but it would appear

therefrom that the site of development of housing of M/s. Bengal Ambuja Ltd. was also visited.

18. The learned counsel submitted that the Division Bench of the Calcutta High Court neither took

into consideration the report of the West Bengal Pollution Control Board in its proper perspective

nor applied its mind with regard to preservation and protection of Khoai which was the basis for

maintaining the writ petition.

19. Mr. G.L. Sanghi, learned senior counsel appearing on behalf of the Respondent No. 10, took us

through the counter-affidavit filed by SSDA and submitted that having regard to the fact that the

State has the exclusive legislative competence as regard town planning, the Parliamentary Act

cannot interdict in the areas covered by the State Act.

20. The learned counsel would contend that by reason of such constructional activities neither the

academic programme of the University as contemplated under Section 5B of the Act nor the

academic territory of the University has contemplated under Section 7 thereof are affected. The

University itself having not claimed any ownership in respect of the land beyond what had been

acquired for its purpose, and, thus, the writ petition filed by the Appellant herein had rightly been

dismissed. it was pointed out that there exist many houses within the area of 3000 hectares of land

and in fact the most of the Appellants are residents thereof and, thus, it does not lie in their mouth

to contend that no constructional activities should be carried out within the area contained in the

Second Schedule of the Act.

21. The learned counsel appearing on behalf of the State of West Bengal and SSDA adopted the

submissions of Mr. Sanghi.

22. Mr. Gautam Banerjee, leaned counsel appearing on behalf of the University, however, let the

matter at the hands of the court stating that the activities of Respondent No. 10 are outside the area

of the University.

23. Mr. T.S. Doabia, learned senior counsel, appearing on behalf of the Union of India, however,

would support the Appellants herein contending that in the larger interests the provisions of the Act

should be implemented in letter and spirit and nothing should be done so as to destroy the purport

and object for which the University was founded.

24. Mr. R. Mohan, learned ASG, appearing on behalf of the West Bengal Pollution Control Board

submitted that his client stands by its report.

REPORT OF THE POLLUTION CONTROL BOARD:

25. From the report sent by the W.B. Pollution Control Board, it would appear that it had issued a

direction restricting he municipal corporations, etc. from sanctioning any building plan of big housing

complexes without obtaining its environmental clearance. Having regard to the peculiar features and

the fact that SSDA's working area includes maintenance and preservation of cultural heritage and

natural environment of Sriniketan-Santiniketan and further in view of the increase in the price of the

land of Khoai and as people visiting Santiniketan enjoy Khoai by seeing in different climatic and

scenic conditions,it was stated:

"Increasing constructional activity in Sriniketan-Santiniketan area may cause serious disruption in

natural drainage system. It is therefore necessary to examine the drainage pattern (both dry

weather flow and storm water flow) in the area and document it is per field condition. It is suggested

that SSDA could take up the job examining the drainage pattern and system and document them in a

map (marked with contour). The coming rainy season (July-September) could be ideal for the field

study.

As Santiniketan is getting developed as tourist place, therefore, it is essential to preserve the natural

beauty and heritage which people like to enjoy. It is true that planned housing is one of the

component of urbanization. There is a great demand of housing not only from the local residents but

also from people outside. Many want to keep a 2nd home for use during weekends, holidays and

festivals. Housing needs supporting infrastructures, also required to be constructed. Further, it will

require adequate water supply, sanitation and drainage, solid waste management, etc.

Urbanization will have impact on ambient air quality unless problem mitigation measures are taken

properly. The rapid EIA report submitted by BPHDCI, though indicated that suspended particulate

matters in ambient air at Sonar Taree area are below maximum permissible limit, but the same near

Pearson memorial Hospital was more than the permissible limit in December. Even on some days of

December the SPM was more than the permissible limit at Sonar Taree area. However, other

parameters of ambient air are well below the permissible limit."

26. It was opined:

"SSDA should follow land use and development control plan already prepared by Urban

Development (T&CP) Department. In addition, SSDA must see to conservation of the natural

heritage of the place as far as practicable. It is also true that when development of Santiniketan-

Sriniketan area is a necessity due to promotion of tourism and urban pull, there must be certain

changes in the land use pattern resulting in disappearance of khoyai landscape from certain places.

Hence SSDA must look into this aspect while planning for development of area keeping changes of

Khoyai land information minimal."

27. Among other things, the Report recommended that:

(i) no more housing projects be undertaken until SSDA's perspective plan 2025 including Visva

Bharati's special requirements was approved,

(ii) ensure minimal damage to the remaining Khoai so as to preserve its natural beauty, heritage and

natural drainage system,

(iii) a Satellite Township be built at a suitable distance from the Visva Bharati area.

ANALYSIS OF THE PROVISIONS OF THE ACT:

28. Visva Bharati is an institution of national importance. The purport and object for which the Act

was enacted is neither in doubt nor in dispute. The preamble of the Act as well as the Statement of

Objects and Reasons are clear and explicit.

29. As Shri A.C. Guha put it during the Parliamentary Debate on the Bill, Visva Bharati is a "symbol of

our culture". During the Parliamentary Debate, Maulana Abdul Kalam Azad had said, "Nature has

provided it with the canopy of the sky and the open places and they do not want to make any

additions to them in the form of brick and stone". Pandit Jawaharlal Nehru said, "And I entirely agree

with Dr. Mookerjee when he laid stress on certain factors that may be called external if you like, but,

nevertheless, which must have a very powerful influence in moulding the student there and creating

a new environment, whether it is teaching in the mango grove or doing anything like that. I entirely

agree with him that we should not spend our money on a large number of brick structures as we

unfortunately still do in making our buildings, whether educational buildings or other buildings, and

have little left to carry on the work in those buildings".

30. The Act was enacted with the consent of the State of West Bengal. The State, having regard to

the purport and object of the Act, has, thus, a duty to see that the environmental ambiance which

would not be in consonance with the ideals of Visva Bharati should not be undertaken. Visva Bharati

is sui generis. It is an institution of national importance. It is a unitary teaching and residential

University. The jurisdiction of the University is not only confined to the area specified in the Second

Schedule appended to the Act, as regard its academic activities but in view of Section 6(32) of the

Act it may establish campuses within the territorial limits of the University as specified therein.

31. The provisions of the Act and in particular Sections 5A, 6, 7 and the Second Schedule thereof

must be conjointly read with the preamble and the Statement of Objects and Reasons thereof.

DETERMINATION

32. The Division Bench of the High Court, as noticed hereinbefore, arrived at a finding that the

continued increase of building activities will slowly change the place almost beyond recognition of

the poet and the activities of Bengal Ambuja Housing Complex Ltd. will to some extent change the

topography of Santiniketan in the canal front. Despite holding so, the High Court observed that such

changes are necessary having regard to the continued increase in population of Santiniketan and, as

the Act does not contain any provision Santiniketan was required to be made an exclusive spot

forever and, furthermore, as allowing the Santiniketan in its original form would be impractical, it

can be permitted to become residential town or even industrial town provided the growth is

planned, systematic and in accordance with the laws relating to freedom from population.

33. If by reason of any activity, the tradition and special features of Visva Bharati are not preserved,

the very purpose of the enactment would be defeated. It has not been denied or disputed that even

now the Visva Bharati organizes classes in open air and also on Khoai lands, particularly, drawing and

painting classes.

34. Indisputably, changes are taking places everywhere in India but Santiniketan should maintain the

tradition and special features of the Visva Bharati in terms of the statutory scheme.

35. The Appellants had brought on records that frequent and unscheduled excursions and picnics in

the area by the students of Kala Bhavana and Patha Bhavana were the hall-marks of Tagore's unique

educational innovation.

36. The Division Bench of the High Court, in our opinion, was not correct in holding that in the event

the building activity in the territorial area comprising Santiniketan as specified in the Act was to take

place in accordance with the spirit and ideas of Rabindranath Tagore, such activity cannot be

monitored in the practical world and, therefore, would constitute illegal and impractical way of

thought and furthermore although the House Complex project of the Respondent No. 10 would

change the topography of Santiniketan in the canal front, there was no public interest calling for

restraint of such a change.

37. The West Bengal Pollution Control Board is a statutory body. The environmental impact

assessment in terms of the provisions of the laws governing ecology of the area is imperative. The

Pollution Control Board which has statutory duties to perform had issued certain directions for

preservation and conservation for cultural, historical, archaeological, environmental and ecological

purposes. Such directions are binding on the State well as SSDA. If any construction is carried on the

Khoai, the same indisputably will destroy its unique natural and cultural heritage, as opined by the

Board, and, thus, all constructional activities must abide by the same.

38. It is imperative that the ecological balance be maintained keeping in view the provisions of both

directive principles of State Policy read with Article 21 of the Constitution. Furthermore, a State

within the meaning of Article 12 of the Constitution of India must give effect to the provisions of

Article 51A(g) of the Constitution which reads as under:

"51A. Fundamental duties. It shall be the duty of every citizen of India -

*** *** ***

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and

to have compassion for living creatures;"

39. It may be true that the Appellant herein have their own hours within 3000 acres of land but they

have been residing there for a long time. What is being objected to by them is constructions of huge

residential and commercial complexes which even according to the High Court would not only

change the topography but also would change the place almost beyond the recognition of the poet.

40. It may be true that the development of a town is the job of the town planning authority but the

same should conform to the requirements of law. Development must be sustainable in nature. A

land use plan should be prepared not only having regard to the provisions contained in the 1979 Act

and the rules and regulations framed thereunder but also the provisions of other statues enacted

therefore and in particular those for protection and preservation of ecology and environment.

41. As Visva Bharati has the unique distinction of being not only a University of national importance

but also a unitary one, the SSDA should be well-advised to keep in mind the provisions of the Act,

the object and purpose for which it has been enacted as also the report of the West Bengal Pollution

Control Board. It is sui generis.

42. It is idle to compare Shantiniketan with any other university. Truism is that Shantiniketan has

unique features. Its environmental ambiance, thus, must be maintained. There is no other university

which having regard to the purport and object of the Act, as would appear from the objects and

reasons thereof, can be compared with Visva Bharati. Our attention has not been drawn to any

other statute establishing any university which has such unique features as Visva Bharati.

43. Only because some advantages would ensue to the people in general by reason of the proposed

development, the same would not mean that the ecology of the place would be sacrificed. Only

because some encroachments have been made and unauthorized buildings have been constructed,

the same by itself cannot be a good ground for allowing other constructional activities to come up

which would be in violation of the provisions of the Act. Illegal encroachments, if any, may be

removed in accordance with law. It is trite law that thee is no equality in illegality.

44. The Parliamentary Debates, some of which we have noticed hereinbefore, clearly go to show

that the Act was enacted with particular objectives in view. Such statutory objects could not have

been given a go by. It is not suggested that he Santiniketan should remain as it was in 1921 but it

cannot be permitted to become full of concrete jungles and industrial hub. For carrying out further

constructional activities, it may not be necessary for a builder to apply to the University for seeking

its permission but the local-self government which is responsible therefor must take into

consideration the salutary principles laid down in the pollution control laws as well as the Act. The

land use and future planning of Santiniketan must be done in such a manner so that the changes be

brought about which would not be beyond the recognition of the poet as also the provisions of the

Act. SSDA in that sense must distinguish itself from the other development authorities. It has an

extra-burden to shoulder. It cannot shut its eyes to the provisions of the Act and the object and

purport it seeks to achieve. It cannot ignore the environmental impact assessment made by the

Board. It is one thing to say that the SSDA may permit small constructions to be made by the owners

of the land or additions or allow alterations to the existing building for residential purposes but it is

another thing to say that it would not consider the effect of the changes which may be brought

about by turning Santiniketan into a commercial and industrial hub.

45. We, with respect to the High Court, are not in a position to agree with the observations which

clearly run counter to its own findings of fact.

CONCLUSION:

46. The question is - what do we do in the instant case?

47. SSDA issued notices as regard adoption of the land use map as far back as in the years 1999 and

2000. The State Government had granted a long term settlement in favour of SSDA with a further

right to the residential flat owners for the expired period of lease by an order dated 25.4.2003. In

2003 itself, the project had been given a green signal and it is stated before us that the Respondent

No. 10 has already spent about 1.5 crores of rupees.

48. Our attention has further been drawn by Mr. Sanghi that the house project of Bengal Peerless

has already come into being. In that view of the matter, we do not intend to stop the constitution

activities which are being carried out by the Respondent No. 10 but direct that in future SSDA must

keep in mind the statutory provisions referred to hereinbefore as also the observations made by us

herein.

49. This appeal is disposed of with the aforementioned directions. No costs.

Equivalent Citation: AIR2005SC3136, 2005(3)AWC2685(SC), 2005(5)BomCR553,

121(2005)DLT547(SC), [2005(4)JCR4(SC)], JT2005(6)SC210, (2005)5SCC733

CASE NOTE HIGHLIGHT


Writ Petition (C) No. 72 of 1998 with Civil Appeal No. 3735 of 2005 [Arising out of SLP (C) No.

21851/2003]


Appellants: In Re: Noise Pollution - Implementation of the Laws for restricting use of loudspeakers

and high volume producing sound systems

Vs. Respondent:

WITH


Vs. Respondent: Union of India (UOI) and Anr.

Hon'ble Judges:

R.C. Lahoti, C.J. and Ashok Bhan, J.

Counsels:

Raju Ramachandran, Additional Solicitor General (NP), Jitendra Sharma (AC), N.N. Goswami, Rajiv

Dutta, G.L. Sanghi, P.N. Mishra and R. Mohan, Sr. Advs., Sandeep Narain (AC), Anil Kumar Mittal,

Anjali Jha, M.K.S. Menon, M.K. Michael, Indra Sawhney, Meenakshi Arora, P. Parmeswaran, Anil

Katiyar, A. Francis Julian, A. Subhashini, D.S. Mahra, Ashok Bhan, Varuna Bhandari Gungnani, Vijay

Panjwani, K.R. Sasiprabhu (NP), Jagjit Singh Chhabra (NP), Sanjay V.S. Choudhury, Niraj Kumar, V.K.

Sidharthan, P.V. Yogeswaran, S. Ravi Shankar, Yamunah Nachiar and M.A. chinnaswamy, Advs. for

the appearing parties



Catch Words

Acts/Rules/Orders:

Constitution of India - Articles 19, 19(1), 19(1)A, 19(10), 21, 25, 141 and 142; Noise Pollution Control

and Regulation Rules, 1999; Air (Prevention and Control of Pollution) Act, 1981 - Section 2;

Environment (Protection) Act, 1986 - Section 2; Noise Abetment Act, 1960 - Section 2; Control on

Pollution Act, 1974; Noise and Statutory Nuisance Act, 1993; Noise Control Act, 1975; Noise Control

(Miscellaneous Articles) Regulations, 1995; Noise Control (Motor Vehicles and Motor Vehicle

Accessories) Regulations, 1995; Noise Control Ordinance; Noise Pollution (Regulation and Control)

Rules, 2000 - Rule 3; Indian Penal Code, 1860 - Sections 95, 268, 290 and 291; Criminal Procedure

Code (CrPC), 1973 - Section 133; Factories Act, 1948 - Sections 89 and 90; Motor Vehicles Act, 1988;

Central Motor Vehicles Rules, 1989 - Rules 119 and 120; Central Motor Vehicles (Amendment) Rules,

1999; Environment (Protection) Rules, 1986 - Rule 89; Air (Prevention and Control of Pollution)

(Amendment) Act, 1987; Explosive Rules, 1983 - Rule 87; Explosives Act, 1884; Madras Town

Nuisances Act, 1889

Cases Referred:

Free Legal Aid Cell Shri Sugan Chand Aggarwal alias Bhagatji v. Govt. of NCT of Delhi and Ors., P.A.

Jacob v. Superintendent of Police, Kottayam, Om Birangana Religious Society v. State, 100 CWN 617;

Kirori Mal Bishambar`` Dayal v. The State, Bhuban Ram and Ors. v. Bibhuti Bhushan Biswas, AIR 1919

Calcutta 539; Ivour Heyden v. State of Andhra Pradesh, 1984 Cri LJ (NOC) 16; Rabin Mukherjee v.

State of West Bengal, People United for better Living in Calcutta v. State of West Bengal, Burrabazar

Fireworks Dealers Association v. Commissioner of police, Calcutta, Appa Rao, M.S. v. Govt. of T.N. ,

(1995) 1 LW 319 (Mad); The Supreme Court in Church of God (Full Gospel) in India v. K.K.R. Majestic

Colony Welfare Assn., Charan Lal Sahu v. Union of India, M.C. Mehta v. Union of India, Moulana

Mufti Syed Md. Noorur Rehman Barkati v. State of West Bengal,

Casenote

Environment � noise pollution - Articles 19, 19(1), 19(1)A, 19(10), 21, 25, 141 and 142 OF

Constitution of India , Noise Pollution Control and Regulation Rules, 1999, Section 2 of Air

(Prevention and Control of Pollution) Act, 1981, Section 2 of Environment (Protection) Act, 1986,

Section 2 of Noise Abetment Act, 1960, Control on Pollution Act, 1974, Noise and Statutory Nuisance

Act, 1993, Noise Control Act, 1975, Noise Control (Miscellaneous Articles) Regulations, 1995, Noise

Control (Motor Vehicles and Motor Vehicle Accessories) Regulations, 1995, Noise Control Ordinance,

Rule 3 of Noise Pollution (Regulation and Control) Rules, 2000 � petition seeking stringent

implementation of laws pertaining to noise pollution � Apex Court considering gravity of matter

issued following direction - firecrackers to be evaluated on basis of chemical composition �

Department of Explosive (DOE) directed to conduct study for this purpose and to specify

composition of chemicals allowable in firecrackers � firecrackers to be divided into light emitting

and sound emitting category � complete ban on bursting sound emitting firecrackers between 10

pm and 6 am � manufacturers of firecrackers directed to mention on box of firecrackers the

components used in it � manufacturers to be held liable in case formulae used by them does not

match with specification of DOE � manufacturers permitted to export firecrackers with higher noise

level subject to strict control � regarding use of loudspeaker Court directed that noise level at

boundary of public place, where loudspeaker or public address system or any other noise source is

being used shall not exceed 10 dB(A) above ambient noise standards for area or 75 dB(A) whichever

is lower � beating of drum or tom-tom or blow of trumpet or beat or sound of any instrument or

use of any sound amplifier at night (between 10. 00 p.m. and 6.a.m.) except in public emergencies

prohibited - peripheral noise level of privately owned sound system restricted to dB(A) - blowing of

vehicular horn in residential area at night hours prohibited � State directed to add chapters in text

books regarding ill effects of noise pollution -State directed to specify ambient air quality standards

in different areas � State also directed to seize loud speakers and amplifiers making noise beyond

permissible limit.

JUDGMENT

R.C. Lahoti, C.J.

1. These two matters before us raise certain issues of far- reaching implications in day-to-day life of

the people in India relatable to noise pollution vis-a-vis right to life enshrined in Article 21 of the

Constitution of India as interpreted in its wide sweep by the constitutional courts of the country.

Though a limited grievance was raised to begin with but several intervenors and interlocutory

applications enhanced the scope of hearing and the cases were heard in a very wide perspective

centering around Article 21 of the Constitution. Several associated and incidental issues have also

been gone into.

Facts in W.P.(C) No. 72/98

2. CWP No. 72/98 is filed by Shri Anil K. Mittal, an engineer by profession moving the Court pro bono

publico. The immediate provocation for filing the petition was that a 13 year old girl was a victim of

rape (as reported in newspapers of January 3, 1998). Her cries for help sunk and went unheard due

to blaring noise of music over loudspeaker in the neighbourhood. The victim girl, later in the

evening, set herself ablaze and died of 100% burn injuries. The petition complains of noise created

by the use of the loudspeakers being used in religious performances or singing bhajans and the like

in busy commercial localities on the days of weekly offs. Best quality hi-fi audio systems are used.

Open space, meant for use by the schools in the locality, is let out for use in marriage functions and

parties wherein merry making goes on with hi-fi amplifiers and loudspeakers without any regard to

timings. Modern residents of the locality organize terrace parties for socializing and use high

capacity stereo systems in abundance. These are a few instances of noise pollution generated much

to the chagrin of students taking examinations who find it utterly difficult to concentrate on studies

before and during examinations. The noise polluters have no regard for the inconvenience and

discomfort of the people in the vicinity. Noise pollution has had its victims in the past and continues

to have victims today as well. The petitioner seeks to invoke the writ jurisdiction of this Court so that

there may not be victims of noise pollution in future. The principal prayer is that the existing laws for

restricting the use of loudspeakers and other high volume noise producing audio-video systems, be

directed to be rigorously enforced.

Facts in C.A. No. 3735 of 2005 (Arising out of S.L.P.(C) No. 21851/03)

3. Leave granted.

4. The Government of India framed and published Noise Pollution Control and Regulation Rules,

1999. On 11.10.2002 the Government of India brought in an amendment in the Rules. The

amendment empowered the State Government to permit the use of loudspeaker or public address

system during night hours (between 10 pm and 12 pm) on or during the cultural or religious

occasions for a limited period not exceeding 15 days. Vires of this amendment were put in issue by

the appellant submitting that the provision is not accompanied by any guidelines and is capable of

being misused to such an extent that the whole purpose behind enacting the Rules itself may be

defeated. The High Court of Kerala found the petition devoid of any merit and directed the petition

to be dismissed. Feeling aggrieved, this petition has been filed by special leave.

5. The Civil Appeal and, in particular, the writ petition raise issues of wide ranging dimensions

relating to noise pollution and the implications thereof. Taking cognizance of the matters as public

interest litigation, the Court vide its order dated 6.4.98, directed the cause title of the petition filed

by Shri Anil Kumar Mittal to be amended as "In re. Noise Pollution-Implementation of the Laws for

Restricting Voice of Loudspeakers and High Volume Producing Sound Systems". The Court also

appointed Shri Jitender Sharma, Senior Advocate and Shri Pankaj Kalra, Advocate to appear as

Amicus Curiae. Both the learned counsel were present in the Court and accepted the assignment.

Unfortunately, Shri Pankaj Kalra, Advocate expired during the pendency of the proceedings. Shri

Sandeep Narain, Advocate has appeared in his place and assisted the Court.

6. The Union of India and the Central Pollution Control Board have not opposed the prayer made in

the writ petition and the appeal and have rather supported the writ petitioner. Valuable inputs have

been provided by the Central Pollution Control Board in the form of pleadings, authentic

publications, research documents and other papers. The Union of India, while not opposing the

relief sought for by the petitioner, has pointed out several practical difficulties in completely

regulating and where necessary, eliminating noise pollution.

7. Though, as we have already noted, the sweep of hearing in these matters has been very wide, the

principal thrust of the writ petitioner and the learned Amicus has been directed towards noise

created by firecrackers, loudspeakers used - by political parties, at religious places and on religious

and social occasions or festivals. Hindu Bokta Jana Sabai, Tamil Nadu Fireworks and Amorces

Manufacturers Association, Universal Society Performance, All India Federation of Fireworks

Association, Indian Fireworks Manufacturers Association and some individuals have sought for

interventions. It is not necessary to notice the contents of the intervention applications in detail.

Suffice it to say that the reliefs sought for in the applications are conflicting. Some of the intervenors

have sought for:-

(i) noise created by horns of engines, pressure horns in automobiles, loudspeakers, denting painting

of cars, particularly, in residential areas and from unauthorized premises being prohibited;

(ii) use of loudspeakers in religious places such as temples, mosque, churches, gurudwaras and other

places being discontinued or at least regulated;

(iii) firecrackers burst during Diwali festival and on other occasions for fun or merry making being

prohibited completely, if the noise created exceeds certain decibels and being so regulated as to

prevent bursting during night hours.

Other set of intervenors seeks such like reliefs:-

(i) granting exemption in favour of bursting of firecrackers on or during festivals without regard to

the limit of time as such bursting of firecrackers is associated with the performance of ceremonies

relating to religion or social occasions;

(ii) laying down mechanism for regulating the very manufacturing of firecrackers so that such

firecrackers as unreasonably enhance noise pollution may be kept away from entering the markets

and playing into the hands of the people.

8. It is obvious that during the course of the hearing the scope got enlarged and the Court has been

addressed on very many issues from very many angles.

9. Article 21 of the Constitution guarantees life and personal liberty to all persons. It is well settled

by repeated pronouncements of this Court as also the High Courts that right to life enshrined in

Article 21 is not of mere survival or existence. It guarantees a right of person to life with human

dignity. Therein are included, all the aspects of life which go to make a person's life meaningful,

complete and worth living. The human life has its charm and there is no reason why the life should

not be enjoyed along with all permissible pleasures. Anyone who wishes to live in peace, comfort

and quiet within his house has a right to prevent the noise as pollutant reaching him. No one can

claim a right to create noise even in his own premises which would travel beyond his precincts and

cause nuisance to neighbours or others. Any noise which has the effect of materially interfering with

the ordinary comforts of life judged by the standard of a reasonable man is nuisance. How and when

a nuisance created by noise becomes actionable has to be answered by reference to its degree and

the surrounding circumstances including the place and the time.

10. Those who make noise often take shelter behind Article 19(1)A pleading freedom of speech and

right to expression. Undoubtedly, the freedom of speech and right to expression are fundamental

rights but the rights are not absolute. Nobody can claim a fundamental right to create noise by

amplifying the sound of his speech with the help of loudspeakers. While one has a right to speech,

others have a right to listen or decline to listen. Nobody can be compelled to listen and nobody can

claim that he has a right to make his voice trespass into the ears or mind of others. Nobody can

indulge into aural aggression. If anyone increases his volume of speech and that too with the

assistance of artificial devices so as to compulsorily expose unwilling persons to hear a noise raised

to unpleasant or obnoxious levels then the person speaking is violating the right of others to a

peaceful, comfortable and pollution-free life guaranteed by Article 21. Article 19 cannot be pressed

into service for defeating the fundamental right guaranteed by Article 21. We need not further dwell

on this aspect. Two decisions in this regard delivered by High Courts have been brought to our notice

wherein the right to live in an atmosphere free from noise pollution has been upheld as the one

guaranteed by Article 21 of the Constitution. These decisions are Free Legal Aid Cell Shri Sugan

Chand Aggarwal alias Bhagatji v. Govt. of NCT of Delhi and Ors., (D.B.) and P.A. Jacob v.

Superintendent of Police, Kottayam, . We have carefully gone through the reasoning adopted in the

two decisions and the principle of law laid down therein, in particular, the exposition of Article 21 of

the Constitution. We find ourselves in entire agreement therewith.

11. The present cases provide an opportunity for examining several questions, such as what is noise?

What are its adverse effects? Whether noise pollution runs in conflict with the fundamental rights of

the people? And what relief can be allowed by way of directions issued in public interest?

I

Noise - what it is?

12. The word noise is derived from the Latin term "nausea". It has been defined as "unwanted

sound, a potential hazard to health and communication dumped into the environment with regard

to the adverse effect it may have on unwilling ears."

13. Noise is defined as unwanted sound. Sound which pleases the listeners is music and that which

causes pain and annoyance is noise. At times, what is music for some can be noise for others.

14. Section 2 of the Air (Prevention and Control of Pollution) Act, 1981, includes noise in the

definition of 'air pollutant'.

15. Section 2 - "air pollutant" means any solid, liquid or gaseous substance including noise present in

the atmosphere in such concentration as may be or tend to be injurious to human beings or other

living creatures or plants or property or environment.

16. According to Encyclopaedia Britannica : "In acoustics 'noise' is defined as 'any undesired sound'."

17. According to Chambers 20th Century Dictionary, 'noise' means- sound especially of loud, harsh

or confused kind; a sound of any kind; an over loud or disturbing sound; frequent or public talk.

18. In Chambers 21st Century Dictionary, the definition of noise has undergone a change. Noise

pollution stands carved out as a phrase separately from noise. The two are defined as under :

"Noise - a sound; a harsh disagreeable sound, or such sound; a din. pollution - an excessive or

annoying degree of noise in a particular area, e.g. from traffic or aeroplane engines."

19. "Pollution" is a noun derived from the verb "pollute". Section 2 of the Environment (Protection)

Act, 1986 defines "environmental pollution" to mean the presence in the environment of any

environmental pollutant. Section 2 of the said Act defines "environmental pollutant" to mean any

solid, liquid or gaseous substance present in such concentration as may be, or tends to be injurious

to environment.

20. Thus, the disturbance produced in our environment by the undesirable sound of various kinds is

called " noise pollution".

II

Noise as nuisance and health hazard

21. Noise is more than just a nuisance. It constitutes a real and present danger to people's health.

Day and night, at home, at work, and at play, noise can produce serious physical and psychological

stress. No one is immune to this stress. Though we seem to adjust to noise by ignoring it, the ear, in

fact, never closes and the body still responds-sometimes with extreme tension, as to a strange

sound in the night.

22. Noise is a type of atmospheric pollution. It is a shadowy public enemy whose growing menace

has increased in the modern age of industrialization and technological advancement. Although a soft

rhythmic sound in the form of music and dance stimulates brain activities, removes boredom and

fatigue, but its excessiveness may prove detrimental to living things. Researches have proved that a

loud noise during peak marketing hours creates tiredness, irritation and impairs brain activities so as

to reduce thinking and working abilities. Noise pollution was previously confined to a few special

areas like factory or mill, but today it engulfs every nook and corner of the globe, reaching its peak in

urban areas. Industries, automobiles, rail engines, aeroplanes, radios, loudspeakers, tape recorders,

lottery ticket sellers, hawkers, pop singers, etc., are the main ear contaminators of the city area and

its market place. The regular rattling of engines and intermittent blowing of horns emanating from

the caravan of automobiles do not allow us to have any respite from irritant noise even in suburban

zones.

23. In the modern days noise has become one of the major pollutants and it has serious effects on

human health. Effects of noise depend upon sound's pitch, its frequency and time pattern and

length of exposure. Noise has both auditory and non-auditory effects depending upon the intensity

and the duration of the noise level. It affects sleep, hearing, communication, mental and physical

health. It may even lead to the madness of people.

24. However, noises, which are melodious, whether natural or man-made, cannot always be

considered as factors leading to pollution.

25. Noise can disturb our work, rest, sleep, and communication. It can damage our hearing and

evoke other psychological, and possibly pathological reactions. However, because of complexity,

variability and the interaction of noise with other environmental factors, the adverse health effects

of noise do not lend themselves to a straightforward analysis.

Hearing Loss

"Deafness, like poverty, stunts and deadens its victims."- says Helen Keller. Hearing loss can be

either temporary or permanent. Noise-induced temporary threshold shift (NITTS) is a temporary loss

of hearing acuity experienced after a relatively short exposure to excessive noise. Pre-exposure

hearing is recovered fairly rapidly after cessation of the noise. Noise induced permanent threshold

shift (NIPTS) is an irreversible loss of hearing that is caused by prolonged noise exposure. Both kinds

of loss together with presbyacusis, the permanent hearing impairment that is attributable to the

natural aging process, can be experienced simultaneously.

26. NIPTS occurs typically at high frequencies, usually with a maximum loss at around 4,000 Hz. It is

now accepted that the risk of hearing loss is negligible at noise exposure levels of less than 75 dB(A)

Leq (8-hr). Based on national judgments concerning acceptable risk, many countries have adopted

industrial noise exposure limits of 85 dB(A) +5 dB(A) in their regulations and recommended

practices. [N.B.- Hz. is abbreviation of Hertz which is the unit of frequency, equal to one cycle per

second. Hertz (Hz) is the name, by international agreement, for the number of repetitions of similar

pressure variations per second of time; this unit of frequency was previously called "cycles per

second" (cps or c/s)].

Interference with Communication

27. The interference of noise with speech communication is a process in which one of two

simultaneous sounds renders the other inaudible. An important aspect of communication

interference in occupational situations is that the failure of workers to hear warning signals or

shouts may lead to injury. In offices, schools and homes, speech interference is a major source of

annoyance.

Disturbance of sleep.

28. Noise intrusion can cause difficulty in falling asleep and can awaken people who are asleep.

Annoyance

29. Noise annoyance may be defined as a feeling of displeasure evoked by noise. The annoyance

inducing capacity of a noise depends upon many of its physical characteristics and variations of

these with time. However, annoyance reactions are sensitive to many non-acoustic factors of a

social, psychological, or economic nature and there are considerable differences in individual

reactions to the same noise.

Effect on performance

30. Noise can change the state of alertness of an individual and may increase or decrease efficiency.

Performance of tasks involving motor or monotonous activities is not always degraded by noise. At

the other extreme, mental activities involving vigilance, information gathering and analytical

processes appear to be particularly sensitive to noise.

Physiological Effects

31. It has been determined that noise has an explicit effect on the blood vessels, especially the

smaller ones known as pre-capillaries. Overall, noise makes these blood vessels narrower. Noise

causes the peripheral blood vessels in the toes, fingers, skin and abdominal organs to constrict,

thereby decreasing the amount of blood normally supplied to these areas.

32. Possible clinical manifestations of stress concomitant with noise are : (i) galvanic skin response,

(ii) increased activity related to ulcer formation, (iii)changes in intestinal motility, (iv)changes in

skeletal muscle tension, (v) subjective response irritability perception of loudness, (vi)increased

sugar, cholesterol & adrenaline, (vii)changes in heart rate, (viii)increased blood pressure, (ix)

increased adrenal hormones, (x)vasoconstriction. Not only might there be harmful consequences to

health during the state of alertness, but research also suggests effects may occur when the body is

unaware or asleep. (Source; NOISE EFFECTS HANDBOOK, A Desk Reference to Health and Welfare

Effects of Noise By Office of the Scientific Assistant, Office of Noise Abatement and Control, U.S.

Environmental Protection Agency, October 1979, Revised July 1981)

33. The investigations have revealed that the blood vessels which feed the brain, dilate in the

presence of noise. This is the reason why headaches result from listening to persistent high noise.

34. Field studies have also been conducted on various other groups such as people living near

airports, and school children exposed to traffic noise, showing that there may be some risk for these

people. In addition, laboratory studies on animals and humans have demonstrated a relationship

between noise and high blood pressure. Other studies have shown that noise can induce heart

attacks.

35. Prolonged chronic noise can also produce stomach ulcers as it may reduce the flow of gastric

juice and change its acidity.

With what other stress effects can noise be associated?

36. Stress can be manifested in any number of ways, including headaches, irritability, insomnia,

digestive disorders, and psychological disorders. Workers who are exposed to excessive noise

frequently complain that noise just makes them tired.

37. Quite a few field studies have been done on workers in Europe, examining the relationship

between noise and illness. In these studies, noise has been related to the following:

General morbidity (illness); Neuropsychological disturbances-Headaches, Fatigue, Insomnia,

Irritability, Neuroticism; Cardiovascular system disturbances-Hypertension, Hypotension, cardiac

disease; Digestive disorders-Ulcers, Colitis; Endocrine and biochemical disorders;

Noise and the unborn.

38. There is ample evidence that environment has a role in shaping the physique, behavior and

function of animals, including men, from conception and not merely from birth. The fetus is capable

of perceiving sounds and responding to them by motor activity and cardiac rate change Lestre W.

Sontang, The Fels Research Institute. (Quoted in Noise: A Health Problem, United States

Environmental Protection Agnency, Office of Noise Abatement and Control, Washington, D.C.,

August 1978.).

Special effects on unborn, children and human beings generally

39. The fetus is not fully protected from noise. Noise may threaten fetal development. Noise has

been linked to low birth weights. Levels of noise which do not interfere with the perception of

speech by adults may interfere significantly with the perception of speech by children as well as with

the acquisition of speech, language, and language-related skills. Because they are just learning,

children have more difficulty in understanding language in the presence of noise than adults do.

Reading ability also may be seriously impaired by noise. Apart from children, the noise pollution

causes several adverse effects on human beings generally. Some of these are: (i) hearing loss, (ii)

nonauditory physiological response such as stress, arousal response, cardiovascular effects etc.,(iii)

communication interference, (iv) performance interference, and (v) sleep disturbance and so on.

III

Sources of Noise Pollution.

40. Noise pollution like other pollutants is also a by-product of industrialization, urbanization and

modern civilization.

41. Broadly speaking, the noise pollution has two sources, i.e. industrial and non-industrial. The

industrial source includes the noise from various industries and big machines working at a very high

speed and high noise intensity. Non-industrial source of noise includes the noise created by

transport/vehicular traffic and the neighbourhood noise generated by various noise pollution can

also be divided into the categories, namely, natural and manmade.

42. Most leading noise sources will fall into the following categories: road traffic, aircraft, railroads,

construction, industry, noise in buildings, and consumer products.

1. Road traffic noise

43. Noise from the motors and exhaust systems of large trucks provides the major portion of

highway noise impact, and provides a potential noise hazard to the driver as well. In addition, noise

from the interaction of tyres with the roadway is generated by trucks, buses, and private autos.

44. In the city, the main sources of traffic noise are the motors and exhaust systems of autos, smaller

trucks, buses, and motorcycles. This type of noise can be augmented by narrow streets and tall

buildings, which produce a "canyon" in which traffic noise reverberates.

2. Aircraft noise

45. Nowadays, the problem of low-flying military aircraft has added a new dimension to community

annoyance, as the nation seeks to improve its "nap-of-the-earth" warfare capabilities. In addition,

the issue of aircraft operations over national parks, wilderness areas, and other areas previously

unaffected by aircraft noise has claimed national attention over recent years.

3. Noise from railroads

46. The noise from locomotive engines, horns and whistles, and switching and shunting operations in

rail yards can impact neighbouring communities and railroad workers. For example, rail car retarders

can produce a high-frequency, high-level screech that can reach peak levels of 120 dB at a distance

of 100 feet which translates to levels as high as 138 or 140 dB at the railroad worker's ear.

4. Construction noise

47. The noise from construction of highways, city streets, and buildings is a major contributor to the

urban scene. Construction noise sources include pneumatic hammers, air compressors, bulldozers,

loaders, dumptrucks (and their back-up signals), and pavement breakers.

5. Noise in industry

48. Although industrial noise is one of the less prevalent community noise problems, neighbours of

noisy manufacturing plants can be disturbed by sources such as fans, motors, and compressors

mounted on the outside of buildings. Interior noise can also be transmitted to the community

through open windows and doors, and even through building walls. These interior noise sources

have significant impacts on industrial workers, among whom noise- induced hearing loss is

unfortunately common.

6. Noise in buildings

49. Apartment dwellers are often annoyed by noise in their homes, especially when the building is

not well designed and constructed. In this case, internal building noise from plumbing, boilers,

generators, air conditioners, and fans, can be audible and annoying. Improperly insulated walls and

ceilings can reveal the sound of amplified music, voices, footfalls, and noisy activities from

neighbouring units. External noise from emergency vehicles, traffic, refuse collection, and other city

noises can be a problem for urban residents, especially when windows are open or insufficiently

glazed.

7. Noise from consumer products

50. Certain household equipment, such as vacuum cleaners and some kitchen appliances have been

and continue to be noisemakers, although their contribution to the daily noise dose is usually not

very large.

IV

Noise pollution in the special context of Fireworks.

51. Fireworks are used all over the world to celebrate special occasions. In India, fireworks are burst

on festivals like Dussehra, Diwali and on special occasions like social gatherings, marriages,

Independence day, Republic day, New year day, etc. In other countries of the world, fireworks are

generally burst either on the New Year day or on the birthday of their respective countries.

However, bursting of firecrackers is a health hazard since it is responsible for both air pollution and

noise pollution .

52. The use of Fireworks has led to air pollution in the form of noise and smoke. Their excessive use

has started to be a public hazard and violation of their fundamental rights as enshrined in the

Constitution of India.

53. It has been held in the case of "Om Birangana Religious Society v. State, 100 CWN 617" that the

"Freedom of speech and expression guaranteed under Article 19 of the Constitution of India

includes, by necessary implication, freedom not to listen and/or to remain silent. A citizen has a right

to leisure, right to sleep, right not to hear and right to remain silent. He also has the right to read

and speak with others". Because of the tremendous sound and noise, the citizens cannot exercise all

these fundamental rights.

54. It has been seen that firecrackers noise is an impulsive noise and is hazardous. Bursting of a

firecracker near the ear can lead sometimes to non-recoverable hearing loss.

55. Diwali is the most important festival of India. The bursting of firecrackers during this period is a

wide spread practice. The unpredictable, intermittent and impulsive noise produced by bursting of

crackers all around, turns the festival of lights into cacophony of noise. People are unable to even

sleep due to this excessive noise pollution. Several people are injured due to the noise produced by

firecrackers every year.

56. Firecrackers not only increase the ambient noise level but also contribute significantly in

increasing the air pollution by means of toxic gases and particles due to their blast wave resulting

from a rapid release of energy.

57. In order to assess the situation of noise pollution caused by firecrackers at the time of Diwali the

Central Pollution Control Board (CPCB) has been conducting ambient noise level monitoring during

Diwali festival regularly at various locations in Delhi since 1993, to find increased ambient noise level

caused by intensive burning of crackers. As in the past, the noise and air quality monitoring have

been carried out in the years 1999, 2000, 2001, and 2002. The noise monitoring locations have been

selected to cover almost all areas of Delhi .

58. An analysis of the Reports prepared in the years 1999, 2000, 2001, and 2002 reveals that the

ambient noise level on Diwali day exceeded the limit at almost all the places during these years. The

noise level was higher during Diwali-2000 as compared to the values recorded during Diwali festival

in the years 1999, 2001, and 2002 .

59. The percentage of violation in L.eq. noise level varied from 02 to 49% in the year 2002, 12 to 55%

in the year 2001, 11 to 58% in the year 2000 and 22 to 47% in the year 1999 with respect to the day

time standards at all the areas . [N.B. - Equivalent Continuous Sound Pressure Level, Leq is the level

of that steady sound which over the same interval of time, contains the same total energy (or dose)

as the fluctuating sound. Equivalent continuous sound level has gained widespread acceptance as a

scale for the measurement of long-term noise exposure.]

60. The ambient noise level conducted during the years 1999 to 2002 on Diwali festival, exceeded

the limit at all places in every year and the percentage of violation varies from 2% to 58% .

61. Thus, the study does reveal that the noise levels that have been measured on all these occasions

have been more than the prescribed norms. This is a point of worry as it has been discussed that

noise pollution does tend to have adverse effects on a person. Thus immediate steps in this direction

need to be taken.

62. The problem of noise pollution due to firecrackers is not only limited to India. Similar problems

are being experienced in other countries as well. In fact in United Kingdom, in Nottingham the "Be

Safe Not Sorry" campaign was launched after the post was inundated with letters from readers to

the newspaper saying they were fed up with the noise, nuisance and the distress that fireworks

cause.

V

Methodology adopted in other countries for noise pollution

control.

63. Different countries of the World have enacted different legislations to control the noise

pollution. For Example, in England there is a Noise Abetment Act, 1960. Section 2 of this Act provides

that loudspeakers should not be operated between the hours of 9:00 in the evening and 8:00 in the

following morning for any purpose and at any other time for purpose of advertisement and

entertainment, trade or business. Control on Pollution Act of 1974, contains provisions for

controlling noise pollution and it provides noise to be actionable must amount to nuisance in the

ordinary legal sense. Section 62 of the English Control of Pollution Act, 1974, operates as perfect

control for 'Street Noise'. This provision has been defined as a highway and any other road, footway

or square or court which is for the time being open to public. In Japan, there is Anti Pollution Basic

Law which helps to control the pollution including noise pollution.

64. A few of the notable legislations may be mentioned illustratively.

Noise Act 1996- U.K.

65. This Act makes provision about noise emitted from dwellings at night; about the forfeiture and

confiscation of equipment used to make noise unlawfully; and for connected purposes. The kind of

complaint referred to is one made by any individual present in a dwelling during night hours that

excessive noise is being emitted from another dwelling. "Night hours" means the period beginning

with 11p.m. and ending with 7 a.m. The Act provides for the service of a notice on the offender by

the prescribed officer if he thinks that the noise being emitted is more than the permissible limits.

66. In cases where the noise level does not come down in spite of the notice being served, the

officer can seize such equipments which in his opinion are the source of such noise.

Noise and Statutory Nuisance Act 1993

67. An Act to make provision for noise in a street to be a statutory nuisance; to make provision with

respect to the operation of loudspeakers in a street; to make provision with respect to audible

intruder alarms; to make provision for expenses incurred by local authorities in abating, or

preventing the recurrence of, a statutory nuisance to be a charge on the premises to which they

relate; and for connected purposes.

The US Noise Pollution and Abatement Act, 1970 is an important legislation for regulating control

and abatement of noise. Under this Law the environment protection agency, acting through the

office of Noise Abatement and Control, holds public meetings in selected cities to compile

information on noise pollution.

The Public Health And Welfare:- Chapter 65- Noise Control(US)

68. The Congress declares that it is the policy of the United States to promote an environment for all

Americans free from noise that jeopardizes their health or welfare. To that end, it is the purpose of

this chapter to establish a means for effective coordination of Federal research and activities in noise

control, to authorize the establishment of Federal noise emission standards for products distributed

in commerce, and to provide information to the public respecting the noise emission and noise

reduction characteristics of such products.

The Act further provides for -

1. Identification of major noise sources

2. Noise emission standards for products distributed in commerce

3. Labelling

4. Quiet communities, research, and public information

5. Development of low-noise-emission products

6. Motor carrier noise emission standards

Noise Regulation Law-Japan.

69. The purpose of this Law is to preserve living environment and contribute to protection of the

people's health by regulating noise generated by the operation of factories and other types of work

sites as well as construction work affecting a considerable area, and by setting maximum permissible

levels of motor vehicle noise.

70. The Prefectural Governor shall designate concentrated residential areas, school and hospital

zones, and other such areas in which it is deemed necessary to protect the living environment of the

residents from noise, as areas subject to the regulation of noise produced by specified factories and

specified construction work.

71. The Prefectural Governor, while designating the areas pursuant to Paragraph 1 of the preceding

Article, shall establish regulatory standards for specified hours and zones of said areas within the

scope of the standards set forth by the Director General of the Environment Agency according to the

necessary degree of noise control in regard to specified factories for specified hours and zones.

72. Persons installing specific facilities are liable to report the same to the Prefectural Governor

within 30 days.

73. The Governor has the powers to order change in the outlay of the factory when they do not

confer to the noise regulations.

74. Any party who plans to undertake construction projects which involve specified construction

work in designated areas, shall file a report with the Prefectural Governor no later than seven (7)

days prior to the beginning of the said construction.

75. The Prefectural Governor shall be responsible for the monitoring of noise levels in designated

areas.

76. For the regulation on noise caused by announcement through the use of loudspeakers and noise

emitted during the night time operation of bars and restaurants, local Government shall take

measures necessary to protect the living environment, including restrictions on operating hours, in

accordance with the local physical and social conditions.

77. The regulations also prescribe the permissible noise levels for the various areas, as well as the

time periods between which noise- emitting machines can be used.

Law of the People's Republic of China on Prevention and Control of Pollution From Environmental

Noise (adopted on October 29, 1996)

78. This Law is enacted for the purpose of preventing and controlling environmental noise pollution,

protecting and improving the living environment, ensuring human health and promoting economic

and social development.

79. For purposes of this Law, "environmental noise" means the sound that is emitted in the course of

industrial production, construction, transportation and social activities and that impairs the living

environment of the neighbourhood.

80. The competent administrative department for environmental protection under the State Council

shall, in accordance with the national standards for acoustic environmental quality and the State's

economic and technological conditions, fix national limits for environmental noise emission.

81. Every project under construction, renovation or expansion must conform to the regulations of

the State governing environmental protection.

82. The industrial noise emitted to the living environment of the neighbourhood within an urban

area shall be kept within the limits set by the State on emission of environmental noise within the

boundary of an industrial enterprise.

83. The construction noise emitted to the living environment of the neighbourhood within an urban

area shall be kept within the limits set by the State on the emission of environmental noise within

the boundary of a construction site.

84. It is forbidden to manufacture, sell or import automobiles that emit noise beyond the limits set

on noise level.

85. All units and individuals are forbidden to use high-pitch loudspeakers in urban areas where

noise-sensitive structures are concentrated.

86. Any unit or individual suffering from the hazards of environmental noise pollution shall have the

right to demand the polluter to eliminate the hazards; if a loss has been caused, it shall be

compensated according to law.

"Noise emission" means emission of noise from the source to the living environment of the

neighbourhood.

"Noise-sensitive structures" means structures that require a quiet environment such as hospitals,

schools, government offices, research institutions and residential buildings.

"Areas where noise-sensitive structures are concentrated" means such areas as medical treatment

areas, cultural, education and research districts and areas where government offices or residential

buildings constitute the main buildings.

"At night" means the period from 10:00 p.m. to 6:00 a.m.

Australia

87. In New South Wales (NSW) no single Government authority has the responsibility or capacity to

be able to minimise all forms of noise pollution. The State is excluded from control of noise in a

number of areas by commonwealth legislation. These include aircraft noise, where noise limits could

affect trade, and the setting standards for noise emissions from new vehicles. In areas where the

State does have powers to control noise, the Environment Protection Authority (EPA) has an overall

responsibility for environmental noise (as distinct from occupational noise), under the Noise Control

Act 1975. The Act deals with the prevention, minimisation and abatement of noise and vibration and

empowers the EPA, the Waterways Authority, local Government and the police for these purposes.

88. The EPA controls noise from scheduled premises, those required by the Noise Control Act to

have a licence and noise associated with rail traffic and the construction or upgrading of freeways

and toll roads. The Police and local council are generally responsible for neighbourhood noise issues

and have authority to issue noise abatement directions to control noise from premises and for noise

from burglar alarms. Local council have an essential role in minimising the effects of excessive noise,

particularly in their local residential areas, from smaller factories, non-scheduled premises and

public places. The Waterways Authority has specific responsibilities in relation to noise from vessels

in navigable waters.

89. Under the provisions of the Noise Control Act 1975 in NSW the railway system is classified as

scheduled premises and as such the EPA has a regulatory role, and seeks to achieve noise targets for

rail operations throughout the State to minimise the impact on local residents.

90. The EPA issues licences for the management of scheduled premises. When issuing a licence the

EPA sets initial noise limits that are achievable with the operation of plant and equipment currently

installed, operated and maintained effectively. To achieve further improvements in noise exposure

to residents, negotiations with the licensed premises are carried out and can be incorporated in the

licence as Pollution Reduction Programs (PRPs). The EPA is currently working with industry to reduce

noise levels from major sources.

91. The Noise Control (Miscellaneous Articles) Regulation 1995 was introduced to cover community

noise issues not covered by previous legislation. It includes limitations on burglar alarms for both

residential and commercial premises. Changes have been made to the night-time control of common

domestic noise sources such as power tools, air conditioners, amplified music and lawn mowers.

Under the new regulation, only one warning to the offender is required and the warning is valid for

28 days. If an offence is committed within this period a fine can be issued without further warnings.

The previous regulation warning was only active for 12 hours which meant it was not very effective

with repetitious offences typical in suburban areas.

92. The Noise Control (Motor Vehicles and Motor Vehicle Accessories) Regulation 1995 controls the

noise of individual motor vehicles. It includes a provision to control noise from a range of accessories

including horns, alarms, refrigeration units and sound systems. It also places responsibility to ensure

compliance of repairs/modifications of vehicles on the vehicle repairers.

93. In addition to the measures introduced to reduce the source and transmission of noise,

measures can be undertaken to noise proof buildings thereby reducing the occupant exposure to

noise.

Montgomery County Noise Control Ordinance

94. The Montgomery County Noise Control Ordinance allows for normal activities during regular

hours; however, it does attempt to eliminate interference from noise when most of us want to rest

and relax. It also seeks to control disturbing and unhealthy levels of noise in general. Key provisions

of the Noise Control Ordinance:

(i) Provide day/night sound level limits.

(ii) Establish "quiet hours."

(iii) Define sounds that constitute noise disturbances.

(iv) Establish a "nuisance provision" that prohibits certain noises at any time.

95. A 'noise disturbance' as defined by the Ordinance, is any sound that is unpleasant, annoying, or

loud; abnormal for the time or location; and prejudicial to health, comfort, property, or the conduct

of business. Under the Ordinance, it is unlawful to create a noise disturbance anywhere during

"quiet hours," including multi- family buildings and townhouses. The "nuisance provision" prohibits

some noise disturbances anywhere at any time.

96. The Montgomery County Noise Control Ordinance promotes peace and quiet for everyone by

covering a wide variety of residential and business situations. The Ordinance does not cover noise

from aircraft and railroads or motor vehicles on public roadways, as Federal and State Governments

supersede local regulation. Also exempt are emergency operations by public utilities.

97. Among other provisions, the Montgomery County Noise Control Ordinance makes it illegal to:

(i) Operate, or allow to be operated, a radio, television, or other electronic sound-producing device

on public or private property if the sound exceeds 55 decibels at the receiving property line.

(ii) Create a noise disturbance during "quiet hours" in a residential zone or multi-family structure.

(iii) Operate any equipment that exceeds the receiving property line sound level limits.

(iv) Allow an animal or fowl to create a noise disturbance at any time.

(vi) Load or unload material during "quiet hours."

(vi) Create a noise disturbance across property lines during "quiet hours" by operating power

equipment mounted on a motor vehicle; for example, refrigerated trucks or commercial vacuum

cleaners.

(vii) Permit construction noise to exceed 75 decibels, with allowances for higher decibel levels under

an approved "Noise Suppression Plan."

VI

Statutory Laws in India

98. Not that the Legislature and the Executive in India are completely unmindful of the menace of

noise pollution. Laws have been enacted and the Rules have been framed by the Executive for

carrying on the purposes of the legislation. The real issue is with the implementation of the laws.

What is needed is the will to implement the laws. It would be useful to have a brief resume of some

of the laws which are already available on the Statute Book. Treatment of the problem of noise

pollution can be dealt under the Law of Crimes and Civil Law. Civil law can be divided under two

heads (i) The Law of Torts and (ii) The General Civil Law. The cases regarding noise have not come

before the law courts in large quantity. The reason behind this is that many people in India did not

consider noise as a sort of pollution and they are not very much conscious about the evil

consequences of noise pollution. The level of noise pollution is relative and depends upon a person

and a particular place. The law will not take care of a super sensitive person but the standard is of an

average and rational human being in the society.

The Noise Pollution (Regulation and Control) Rules, 2000

99. In order to curb the growing problem of noise pollution, the Government of India has enacted

the Noise Pollution(Regulation and Control) Rules, 2000. Prior to the enactment of these Rules noise

pollution was not being dealt specifically by a particular Act.

"Whereas the increasing ambient noise levels in public places from various sources,inter-alia,

industrial activity, construction activity, generator sets, loudspeakers, public address systems, music

systems, vehicular horns and other mechanical devices, have deleterious effects on human health

and the psychological well being of the people; it is considered necessary to regulate and control

noise producing and generating sources with the objective of maintaining the ambient air quality

standard in respect of noise;"

100. The main provisions of the Noise Pollution Rules are as under:

1. The State Government may categorize the areas into industrial, commercial, residential or silence

areas/zones for the purpose of implementation of noise standards for different areas.

2. The ambient air quality standards in respect of noise for different areas/zones has been specified

for in the Schedule annexed to the Rules.

3. The State Government shall take measures for abatement of noise including noise emanating

from vehicular movements and ensure that the existing noise levels do not exceed the ambient air

quality standards specified under these Rules. 4. An area comprising not less than 100 meters

around hospitals, educational institutions and courts may be declared as silence area/zone for the

purpose of these Rules.

5. A loudspeaker or a public address system shall not be used except after obtaining written

permission from the authority and the same shall not be used at night i.e. between 10.00p.m. and

6.00 a.m.

6. A person found violating the provisions as to the maximum noise permissible in any particular

area shall be liable to be punished for it as per the provisions of these Rules and any other law in

force.

Indian Penal Code

101. Noise pollution can be dealt under Sections 268, 290 and 291 of the Indian Penal Code, as a

public nuisance. Under Section 268 of this Code, it is mentioned that 'A person is guilty of a public

nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger

or annoyance to the public or the people in general who dwell or occupy property in the vicinity, or

which must necessarily cause injury, obstruction, danger or annoyance to persons who may have

occasion to use any public right.

102. A common nuisance is not excused on the ground that it causes some convenience or

advantage.'

103. Sections 290 and 291 of the Indian Penal Code deal with the punishment for public nuisance.

Criminal Procedure Code

104. Under Section 133 of the Code of Criminal Procedure, 1973 the magistrate has the power to

make conditional order requiring the person causing nuisance to remove such nuisance.

The Factories Act, 1948.

105. The Factories Act does not contain any specific provision for noise control. However, under the

Third Schedule [Sections 89 and 90 of the Act], 'noise induced hearing loss', is mentioned as a

notifiable disease. Under Section 89 of the Act, any medical practitioner who detects any notifiable

disease, including noise- induced hearing loss, in a worker, has to report the case to the Chief

Inspector of Factories, along with all other relevant information. Failure to do so is a punishable

offence.

106. Similarly, under the Model Rules, limits for noise exposure for work zone area has been

prescribed.

Motor Vehicles Act, 1988, and Rules framed thereunder

107. Rules 119 and 120 of the Central Motor Vehicles Rules, 1989, deal with reduction of noise.

Rule 119. Horns

(1) On and after expiry of one year from the date of commencement of the Central Motor Vehicles

(Amendment) Rules, 1999, every motor vehicle including construction equipment vehicle and

agricultural tractor manufactured shall be fitted with an electric horn or other devices conforming to

the requirements of IS: 1884?1992, specified by the Bureau of Indian Standards for use by the driver

of the vehicle and capable of giving audible and sufficient warning of the approach or position of the

vehicle:

Provided that on and from 1st January, 2003, the horn installation shall be as per AIS-014

specifications, as may be amended from time to time, till such time as corresponding Bureau of

Indian Standards specifications are notified.

(2) No motor vehicle shall be fitted with any multi-toned horn giving a succession of different notes

or with any other sound-producing device giving an unduly harsh, shrill, loud or alarming noise.

Rule 120. Silencers

(1) Every motor vehicle including agricultural tractor shall be fitted with a device (hereinafter

referred to as a silencer) which by means of an expansion chamber or otherwise reduces as far as

practicable, the noise that would otherwise be made by the escape of exhaust gages from the

engine.

(2) Noise standards- Every motor vehicle shall be constructed and maintained so as to conform to

noise standards specified in Part E of the Schedule VI to the Environment (Protection) Rules, 1986,

when tested as per IS: 3028-1998, as amended from time to time.

Law of Torts

108. Quietness and freedom from noise are indispensable to the full and free enjoyment of a

dwelling-house. No proprietor has an absolute right to create noises upon his own land, because any

right which the law gives is qualified by the condition that it must not be exercised to the nuisance of

his neighbours or of the public. Noise will create an actionable nuisance only if it materially

interferes with the ordinary comfort of life, judged by ordinary, plain and simple notions, and having

regard to the locality; the question being one of degree in each case.

The Air (Prevention and Control of Pollution) Act, 1981

109. Noise was included in the definition of air pollutant in Air (Prevention and Control of Pollution)

Act in 1987. Thus, the provisions of the Air Act, became applicable in respect of noise pollution, also.

The Environment (Protection) Act, 1986.

110. Although there is no specific provision to deal with noise pollution, the Act confers powers on

Government of India to take measures to deal with various types of pollution including noise

pollution.

Fireworks

111. The Explosives Act, 1884 regulates manufacture, possession, use, sale, transport, import &

export of explosives. Firecrackers are governed by this Statute. Rule 87 of the Explosives Rule, 1983

prohibits manufacture of any explosive at any place, except in factory or premises licensed under the

Rules.

112. In India, there is no separate Act that regulates the manufacture, possession, use, sale,

manufacture and transactions in firecrackers. All this is regulated by The Explosives Act, 1884. The

Noise that is produced by these fireworks is regulated by the Environmental Protection Act, 1986

and The Noise Pollution (Regulation and Control) Rules, 2000.

VII

JUDICIAL OPINION IN INDIA

113. In Kirori Mal Bishambar Dayal v. The State MANU/PH/0003/1958, accused/petitioner was

convicted and sentenced under Section 290 of Indian Penal Code, 1860 and was fined Rs. 50 for

causing noise and emitting smoke and vibrations by operating of heavy machinery in the residential

area. The order of the trial court was upheld by the District Magistrate in appeal. The High Court of

Punjab & Haryana also upheld the decision of the courts below and dismissed the revision petition.

In the case of Bhuban Ram and Ors. v. Bibhuti Bhushan Biswas AIR 1919 Calcutta 539, it was held

that working of a paddy husking machine at night causes nuisance by noise and the occupier was

held liable to be punished under Section 290 IPC. In Ivour Heyden v. State of Andhra Pradesh 1984 Cr

LJ (NOC) 16, the High Court of Andhra Pradesh excused the act of playing radio loudly on the ground

that it was a trivial act. Careful reading of Section 95 of IPC shows that only that harm is excused

which is not expected to be complained by the person of ordinary temper and sense.

114. In Rabin Mukherjee v. State of West Bengal MANU/WB/0058/1985 the use of air horns was

prohibited by the court to prevent noise pollution. The Court observed:

"...it is found that the atmosphere and the environment is very much polluted from indiscriminating

noise emitted from different quarters and on research it was found that persons who are staying

near the Airport, are becoming victim of various ailments. Such persons even become victim of

mental disease. On such research it was also found that workers in various factories even become

deaf and hard of hearing. It was further found on such research that as a result of this excessive

noise pollution, people suffer from loss of appetite, depression, mental restlessness and insomnia.

People also suffer from complain of excessive blood pressure and heart trouble. It is not necessary

to go into the question about direct effect of such noise pollution because of indiscriminate and

illegal use of such electric and air horn as it is an admitted position that the same is injurious to

health and amongst different causes of environmental pollution, sound pollution is one which is of

grave concern."

115. In the case of People United for better Living in Calcutta v. State of West Bengal

MANU/WB/0025/1993 the Calcutta High Court observed:

"In a developing country there shall have to be developments, but that development shall have to be

in closest possible harmony with the environment, as otherwise there would be development but no

environment, which would result in total devastation, though, however, may not be felt in present

but at some future point of time, but then it would be too late in the day, however, to control and

improve the environment. In fact, there should be a proper balance between the protection of

environment and the development process. The society shall have to prosper, but not at the cost of

the environment and in similar vein, the environment shall have to be protected but not at the cost

of the development of the society and as such a balance has to be found out and administrative

actions ought to proceed accordingly."

116. In Burrabazar Fireworks Dealers Association v. Commissioner of Police, Calcutta,

"Article 19 of the Constitution of India does not guarantee the fundamental right to carry on trade or

business which creates pollution or which takes away that communities safety, health and peace.

...A citizen or people cannot be made a captive listener to hear the tremendous sounds caused by

bursting out from a noisy fireworks. It may give pleasure to one or two persons who burst it but

others have to be a captive listener whose fundamental rights guaranteed under Article 19 and

other provisions of the Constitution are taken away, suspended and made meaningless. ...Under

Article 19, read withy Article 21 of the Constitution of India, the citizens have a right of decent

environment and they have a right to live peacefully, right to sleep at night and to have a right to

leisure which are all necessary under Article 21 of the Constitution."(Headnote)

117. In Appa Rao, M.S. v. Govt. of T.N., (1995) 1 LW 319 (Mad), the Madras High Court taking note of

the serious health hazard and disturbance to public order and tranquility caused by the uncontrolled

noise pollution prevailing in the State, issued a writ of mandamus directing State Government to

impose strict conditions for issue of license for the use of amplifiers and loudspeakers and for

directing Director-General, Police (Law and Order) to impose total ban on use of horn type

loudspeakers and amplifiers and air horns of automobiles.

118. In P.A. Jacob v. the Superintendent of Police, MANU/KE/0001/1993, it was said - "The right to

speech implies, the right to silence. It implies freedom, not to listen, and not to be forced to listen.

The right comprehends freedom to be free from what one desires to be free from. Free speech is not

to be treated as a promise to everyone with opinions and beliefs, to gather at any place and at any

time and express their views in any manner. The right is subordinate to peace and order. A person

can decline to read a publication, or switch off a radio or a television set. But, he cannot prevent the

sound from a loudspeaker reaching him. He could be forced to hear what he wishes not to hear.

That will be an invasion of his right to be let alone, to hear what he wants to hear, or not to hear,

what he does not wish to hear. One may put his mind or hearing to his own uses, but not that of

another. No one has a right to trespass on the mind or ear of another and commit auricular or visual

aggression. A loudspeaker is mechanical device, and it has no mind or thought process in it.

Recognition of the right of speech or expression is recognition accorded to a human faculty. A right

belongs to human personality, and not to a mechanical device. One may put his faculties to

reasonable uses. But, he cannot put his machines to any use he likes. He cannot use his machines to

injure others. Intervention with a machine, is not intervention with, or invasion of a human faculty

or right. No mechanical device can be upgraded to a human faculty. A computer or a robot cannot

be conceded the right under Article 19 (though they may be useful to man to express his faculties).

No more, a loudspeaker. The use of a loudspeaker may be incidental to the exercise of the right. But,

its use is not a matter of right, or part of the right".

119. In Free Legal Aid Cell Shri Sugan Chand Aggarwal alias Bhagatji v. Govt. of NCT of Delhi and Ors.,

MANU/DE/0654/2001, it was said that "Pollution being wrongful contamination of the environment

which causes material injury to the right of an individual, noise can well be regarded as a pollutant

because it contaminates environment, causes nuisance and affects the health of a person and would

therefore, offend Article 21, if it exceeds a reasonable limit."

120. The Supreme Court in Church of God (Full Gospel) in India v. K.K.R. Majestic Colony Welfare

Assn., held that the Court may issue directions in respect of controlling noise pollution even if such

noise was a direct result of and was connected with religious activities. It was further held:-

"Undisputedly, no religion prescribes that prayers should be performed by disturbing the peace of

others nor does it preach that they should be through voice amplifiers or beating of drums. In our

view, in a civilized society in the name of religion, activities which disturb old or infirm persons,

students or children having their sleep in the early hours or during daytime 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 the neighbours. Similarly, the old and the infirm are entitled to

enjoy reasonable quietness during their leisure hours without there being any nuisance of noise

pollution. Aged, sick, people afflicted with psychic disturbances as well as children up to 6 years of

age are considered to be very sensible (sic sensitive) to noise. Their rights are also required to be

honoured.

"Under the Environment (Protection) Act, 1986, rules for noise-pollution level are framed which

prescribe permissible limits of noise in residential, commercial, industrial areas or silence zone. The

question is - whether the appellant can be permitted to violate the said provisions and add to the

noise pollution. In our view, to claim such a right itself would be unjustifiable. In these days, the

problem of noise pollution has become more serious with the increasing trend towards

industrialisation, urbanization and modernisation and is having many evil effects including danger to

health. It may cause interruption of sleep, affect communication, loss of efficiency, hearing loss or

deafness, high blood pressure, depression, irritability, fatigue, gastrointestinal problems, allergy,

distraction, mental stress and annoyance etc. This also affects animals alike. The extent of damage

depends upon the duration and the intensity of noise. Sometimes it leads to serious law and order

problem. Further, in an organized society, rights are related with duties towards others including

neighbours.........

.....because of urbanization or industrialization the noise pollution may in some area of a city/town

might be exceeding permissible limits prescribed under the Rules, but that would not be a ground

for permitting others to increase the same by beating of drums or by use of voice amplifiers,

loudspeakers or by such other musical instruments and, therefore, rules prescribing reasonable

restrictions including the Rules for the use of loudspeakers and voice amplifiers framed under the

Madras Town Nuisances Act, 1889 and also the Noise Pollution (Regulation and Control) Rules, 2000

are required to be enforced."

121. In Charan Lal Sahu v. Union of India the Supreme Court reiterated the need to create separate

tribunals and asserted the need to appoint a body of experts to advice the Government on

environmental issues.

122. In M.C. Mehta v. Union of India this Court has emphasized the need for creating environmental

awareness amongst students through education.

123. We have referred to a few and not all available judgments. Suffice it to observe that Indian

Judicial opinion has been uniform in recognizing right to live in freedom from noise pollution as a

fundamental right protected by Article 21 of the Constitution and noise pollution beyond permissible

limits as an in-road on that right. We agree with and record our approval of the view taken and the

opinion expressed by the several High Courts in the decisions referred to hereinabove.

VIII

Interim orders

124. During the course of the hearing of this case the Court had passed several interim orders

keeping in mind the importance of the issue.

125. The interim order dated 27/09/2001 deserves to be mentioned in particular, which directed as

under:

"(1) The Union Government, the Union Territories as well as all the State Governments shall take

steps to strictly comply with Notification No. G.S.R. 682(E) dated October 05, 1999 whereby the

Environment (Protection) Rules, 1986 framed under the Environment (Protection) Act, 1986 were

amended. They shall in particular comply with amended Rule 89 of the said Rules, which reads as

follows:

"89. Noise standards for firecrackers

A.(i) The manufacture, sale or use of firecrackers generating noise level exceeding 125 dB(AI) or 145

dB( C)pk at 4 meters distance from the point of bursting shall be prohibited.

(ii) For individual fire-cracker constituting the series (joined fire-crackers), the above mentioned limit

be reduced by 5 log 10(N) dB, where N = number of crackers joined together."

(2) The use of fireworks or fire-crackers shall not be permitted except between 6.00 a.m. and

10.00p.m. No firework or firecracker shall be allowed between 10.00 p.m. and 6.00 a.m.

(3) Firecrackers shall not be used at any time in silence zones, as defined in S.O. 1046(E) issued on

22.11.2000 by the Ministry of Environment and Forests. In the said Notification Silence Zone has

been defined as: " Silence Zone is an area comprising not less than 100 meters around hospitals,

educational institutions, courts, religious places or any other area which is declared as such by the

competent authority."

(4) The State Education Resource Centers in all the States and the Union Territories as well as the

management/principals of schools in all the States and Union Territories shall take appropriate steps

to educate students about the ill effects of air and noise pollution and appraise them of directions

(1) to (3) above."

126. These interim directions were also directed to be given wide publicity both by electronic and

print media. It was said that Doordarshan and other television channels shall give publicity to these

directions, at least once every day during prime time, during the fortnight before Dussehra and

Diwali. The Ministry of Information and Broadcasting was asked to bring these directions to the

notice of the general public through appropriate advertisements, issued in the newspapers. The All

India Radio was asked to broadcast these directions on prime time on FM and other frequencies for

information of the general public.

127. Due to the imposition of the restrictions on the bursting of firecrackers, several Interim

Applications came to be filed before the Court. The Court vide its interim order dated 10.9.2003

stated:-

"Through the I.A.s filed in this Court the following two suggestions deserve notice.

Firstly, it is submitted that certain local festivals and celebrations are accompanied customarily by

bursting of firecrackers which is at times at such hours as is not permissible under the order of this

Court dated 27.9.2001. Secondly, it is pointed out that the industry of fireworks may face serious

difficulty, even partial closure, on account of the directions made by this Court.

We have grave doubts if the abovesaid considerations can come in the way of the enforcement of

fundamental rights guaranteed by the Constitution for the citizens and people of India to live in

peace and comfort, in an atmosphere free from pollution of any kind, such as one caused by noise

and foul/poisonous gases. However still, without expressing any final opinion on the pleas advanced,

we allow the parties adversely affected the liberty to make representation to their respective State

Governments and the State Governments may, in their turn, if satisfied of the genuineness of the

representation made, invite the attention of the Govt. of India, to the suggestions made."

128. We are happy to note that the initial reluctance to abide by the interim directions made by this

Court as displayed by the subsequent interlocutory applications soon gave way to compliance. By

and large, the interim directions made by the Court were observed in compliance. Police and civil

administration remained alert during Diwali Festival to see that the directions made by the Court

were complied with. Residents Welfare Associations and school children gave a very encouraging

response who voluntarily desisted from bursting firecrackers in prohibited hours of night and also

from bursting such firecrackers as produce high level noise.

IX

Difficulty in implementation of noise pollution control

methodology in India.

129. India has passed through the stage of being characterised as a developing country and is ready

to enter and stand in the line of developed countries. Yet, the issue of noise pollution in India has

not been taken so far with that seriousness as it ought to have been. Firstly, as we have stated

earlier, there is a lack of will on the part of the Executive to implement the laws. This has contributed

to lack of infrastructure essential for attaining the enforcement of laws. Secondly, there is lack of

requisite awareness on the part of the citizens. The deleterious effects of noise pollution are not well

known to the people and are not immediately perceptible. People generally accept noise pollution

as a part of life, a necessary consequence of progress and prosperity.

130. The problems that are being faced in controlling noise pollution are:-

1. The Statutes and the Rules framed thereunder are not comprehensive enough so as to deal with

all the problems and issues related to noise pollution. This impression of ours stands reaffirmed on a

comparative reading of legislation in India with those in other countries of the world to which we

have referred to briefly earlier in this judgment.

2. The authorities responsible for implementing the laws are not yet fully identified. Those which

have been designated, do not seem to be specialised in the task of regulating noise pollution. There

is dearth of necessary personnel technically qualified to act effectively. What is needed is a

combination of technically qualified and administratively competent personnel with the requisite

desire and dedication for implementation of the laws.

3. There is lack of proper gadgets and equipments and other infrastructure such as labs for

measuring the noise levels. Due to the shortage of the instruments needed for the purpose of

measuring sound, the policemen who are on the job usually end up measuring sound with their ears

itself and not with the use of technical instruments.

X

Firecrackers.

131. In the context of firecrackers in particular, several questions do arise for which answers shall

have to be found. What should be the maximum permissible sound level for firecrackers? What

should be the method of checking whether a particular firecracker shall emit sound which shall be

within permissible limits? Which authority shall be conferred with the responsibility for ensuring the

effective implementation of these noise levels? What should be the time limit during which the

bursting of firecrackers should be allowed? Should there be any relaxation in the hours fixed for

bursting firecrackers during festivals? Should the Environment (Protection) Rules, 1986, be amended

in such a way that the firecrackers manufactured for export in other countries are exempted from

the Indian noise standards?

What is the Maximum sound level that should be permissible for firecrackers?

132. At present the maximum permissible sound level for firecrackers as per the noise standard is

provided by Item 89, Sch. I, Table 1.5 of the Environment (Protection) Rules, 1986:

"89. Noise Standard for Fire- crackers

A. (i) The manufacture, sale or use of firecrackers generating noise level exceeding 125 dB(AI) or

145dB(C)pk at 4 meters distance from the point of bursting shall be prohibited.

(ii) For individual firecrackers constituting the series (joined firecrackers), the above mentioned

limit be reduced by 5 log 10 (N)dB, where N= Number of crackers joined together."

133. The learned amicus curiae had on 17th September 2001, filed certain suggestions for issuance

of directions for the consideration of this Court. In it he had suggested that the maximum noise level

of firecrackers could be fixed at 65 dB(A). It is submitted that the limit of emission of noise

prescribed in the Rules is too liberal and errs on higher side.

134. It is suggested that the manufacturers of Firecrackers or those dealing with them should ensure

that only such crackers are produced and marketed which do not emit noise of more than 65 dB(A).

135. The Government of India had not accepted the above suggestion of the learned Amicus. The

government replied to it in the following words.

"Sound level of 65 dB(A) for firecrackers is too low a level to be prescribed. The noise levels

prescribed in GSR 682 (E) dated 5TH October, 1999, have been evolved by a technical committee

and need to be complied with."

136. The Fire workers industry also submitted an application to the Union Minister of Environment

and Forest at a meeting convened in New Delhi on 15/04/2004, pleading justification for the

increase proposed in the prescribed firecrackers noise standards from 125 dB(AI) to 135 db(AI) and

from 145 dB(c)p k to 155(C)pk.

137. In an Article on 'Firecracker Noise, a Hazard- A review of its Standards', by, Dr. S.P. Singhal,

published in MAPAN- Journal of Metrology Society of India, Vol. 17, No. 3, 2002; pp. 101-117, Dr.

Singhal has stated:

"UK and many other European Economic Commission (EEC) countries have adopted an exposure

limit of 140dB(lin) peak sound pressure level for impulsive or cracker noise for a maximum exposure

of 100 impulses per day.

European Standardization Committee CEN/TC/212 WG3 is also working to set-up standards on

fireworks. Some of the countries have desired the limit to be set at 112dB(AI) and, several others

have wanted it to be set at125dB(AI) or even at 126-127 dB(AI) at the testing distance, with the peak

sound pressure level to be 20dB higher than these limits. It has fixed a noise level of 120dB(AI)

measured at the testing distance on an ad hoc basis for category 2 fireworks.

Canada has adopted the damage risk criterion of 140dBA peak sound pressure level at a distance of

5m from the point of explosion of the cracker. It is applicable in all categories of fireworks unless

otherwise specified."

Keeping all these submissions in mind, it does seem that the present noise standards as prescribed

in India by the Government of India are correct and do not need to be altered at the moment.

However, if the Government is of the opinion that this sound level needs to be increased or reduced

at a later date it is free to do so.

Should a firecracker be tested on the basis of sound level or on the basis of chemical compositions

so as to check, does the firecracker correspond with the prescribed rules?

For an effective implementation of noise pollution prevention programme, it is essential that such a

method be devised whose enforcement shall not be problematic. A rule should be so designed, that

it is possible for all concerned to be able to implement it, and thus it is not violated by anyone due to

some kind of supervening impossibility. Almost all the parties concerned have expressed a

discontent about the present system of enforcement of noise level pertaining to firecrackers. Lack of

infrastructure on account of noise measuring devices, high cost of such devices, low noise levels

prescribed, expensive rates for getting samples tested, long time taken by the testing laboratories

are a few of the difficulties that have been cited in the enforcement of the noise standards.

138. The Department of Explosives has filed two affidavits before the Court, the first on 1.4.2003 and

the second on 16.2.2004, besides a joint affidavit which was filed by the Ministry of Environment

and Forest on behalf of the Union of India on 29.8.2003.

139. In the aforesaid Affidavits, the stand taken by the Department of Explosives before the Court is:

(i) that "the firecrackers noise standard prescribed under the Environment (Protection) Rules, 1986

requires costly instruments, wide infrastructure and special expertise in the fields of acoustic

science." (para-8 of Affidavit dated 1.4.2003)

(ii) that "the Department is not prepared in terms of manpower equipments and infrastructure for

implementation of the standard which is based on measurement of noise level" (para-9 of Affidavit

dated 1.4.2003)

(iii) that "the Department of Explosives is of the opinion that the noise level of firecrackers can be

efficiently controlled by specifying the size, shape, composition and quantity of chemicals in the

fireworks, which are the prime factors that determine the noise level which entails a lot of R & D

work. The maximum permissible size of firecrackers and the maximum possible weight of the

chemicals for each variety would be mentioned in the list of authorized explosives appended to the

Explosives Rules consequent upon amendment of the Explosives Rules."(para-15 of Affidavit dated

1.4.2003.)

(iv) that "the department is already publishing one authorized List of Explosives, which is updated

periodically as and when new items of explosives are approved by the Department. The specification

for the approved varieties are prescribed in the said Authorised List, in terms of permissible size,

permissible composition of chemicals, mass of charge and other such physical and chemical

properties. The items which are not listed in the authorized list cannot be manufactured, stored,

transported or sold as per various provisions of the Explosives Rules. Anybody proposing to

manufacture a new variety of fireworks shall apply to the Chief Controller of Explosives, Nagpur

along with detailed drawings, samples and prescribed fee for testing and approval. Noise regulations

for firecrackers can be implemented effectively through the Authorised List in four phases:

(i) The permissible sound level of 125 dB(AI) notified under the Rules is taken as the guideline for

purpose of implementation by the Department of Explosives. (ii) To achieve this, the Department

can experiment with various sizes, chemicals and compositions in order to devise the optimal set of

factors for each variety, to result in the desired noise level.

(iii) This set of factors or parameters for each variety of firecrackers will then be notified under the

Authorized List of Explosives under the Explosives Rules, 1983.

(iv) Any violation from the authorized List exceeding the permitted size, permitted chemical content

and chemical composition will attract legal action."( para-16 of affidavit dated 1.4.2003).

140. In the Affidavit filed on 16.2.2004, the Chief Controller of Explosives stated:-

(1) That since the role of the Department of Explosives is mainly administration and enforcement of

the Explosives Rules 1983 and the status of the Department is statutory in nature hence the

Department of Explosives had already taken up the matter and advised the fireworks manufacturers

of developing and producing environment friendly fireworks besides advocating to promote, sale

and use of only fireworks/crackers meeting the noise standards prescribed under Environment

(Protection) Rules, 1986 and amendments thereof.

(2) That it is impractical for Government of India to fix norms regarding chemical composition and

the size of the firecrackers. It is the duty and responsibility of the manufacturer to control size and

composition of firecrackers to comply with the noise limits prescribed under the Environment

(Protection) Rules, 1986.

(3) That it is impractical owing to the shortage of infrastructure available with the Department of

Explosives. The licensing for the manufacture of firecrackers shall be as per the Explosives Act, 1884.

The Power of the District Magistrate for issuing licenses is to be retained as per the Rules.

(4) That the matter is now open and the manufacturers are at liberty to manufacture, develop,

promote and sell only those fireworks, which comply with the noise limits prescribed under the

Environment (Protection) Rules 1986 and Explosive Rules, 1983.

(5) That the Department of Explosives had already made mandatory for the manufacturers of

fireworks to mention the noise levels in decibel units on firecrackers. The manufacturers are also

required to declare on the packing of the boxes that the noise levels conform to the standards

prescribed under the Environment (Protection) Rules, 1986. The Department had already included

the prescribed noise limits for firecrackers as additional conditions of licenses issued under the

Explosives Rules 1983. The authorities empowered to enforce the Explosives Rules 1983 have been

clearly defined under the said Rules.

Desirability of fixing chemical composition for the firecrackers

141. The learned Amicus Curiae has suggested that the Government of India should fix the

permissible chemical compositions for the firecrackers. He submitted - "To control the noise levels

from firecrackers, it was felt that apart from firecrackers carrying on its label, the extent of its noise

level emission, it may be appropriate if the Government was to fix norms regarding chemical

composition and the size of firecrackers so as to confirm to the notified noise emission norms."

142. In UK as well, the method of determining the noise level of a firecracker, is by fixing its chemical

contents. The British Standard Institute has developed the British Standard Fireworks, Part 2.

Specification for Fireworks (BS 7114: Part 2) of 1988, which prescribes the maximum permissible

quantity of chemicals in a particular firework. The Standards prescribe the various specifications with

which the firework has to comply for it to be manufactured or used in UK.

143. During the course of hearing, submissions in extenso were made on the comparative merits and

demerits of the two systems namely (i) measuring the noise level of firecrackers in decibels and

thereby securing the implementation of rules in this regard, and (ii) securing the implementation of

the rules by restricting and prescribing the size of chemical content, chemical composition etc. of

firecrackers. A tabulated statement of such comparison has been placed on the record by the Tamil

Nadu Fireworks and Amorces Manufacturers Association.

144. Briefly stated, it is pointed out that if the firecrackers are allowed to be manufactured in the

manner in which they are being done now and the noise level is left to be measured at the time of

bursting of firecrackers, several difficulties in implementation would arise, frustrating the regulation.

Very expensive instruments and gadgets are necessary to measure the sound level of firecrackers. A

sound level meter with required capabilities may cost around Rs.3 lacs or upwards. Factors like wind

velocity, temperature and humidity have a bearing on the measurement of noise level. The gadgets

for monitoring these factors shall also be required to be installed at the testing field. Technically

trained persons would be required to be posted at every point of measuring. Testing the sound level

of firecrackers at the point of bursting would mean that the firecrackers have already reached the

market. The persons to be hauled up would be unwary retailers or users and it would be difficult to

fix the responsibility on the manufacturers or distributors. Difficulties of proof in the court of law

would also arise. The noise level in a firecracker is not stable. The same firecracker may have a

different noise level at the time of manufacturing and at the time of use on account of climatic

changes which would naturally occur by the lapse of time and change of place. If the noise level was

to be tested at the factory, the firecracker would have already been manufactured. There would also

be other difficulties inasmuch as the clearance for marketability would depend on the firecrackers

satisfying the test carried out and at that point of time the firecrackers have already been

manufactured and shall have to be only destroyed if unsuccessful in the test. That apart, the

manufacturers are spread throughout the country. Some of them are small scale industries. Either

many a testing stations shall have to be established or else the manufacturers would be required to

go to centralized testing stations carrying untested firecrackers. Both seem to be difficult situations.

145. On the other hand, prescribing of weight and composition of chemicals to be used in

manufacturing firecrackers would mean experiment or analytical tests being carried out at any one

station followed by publication of results and laid down standards. Experimental checks would be

enough to satisfy the authorities, if the manufacturers were following the laid down standards as to

size of firecrackers, weight and percentile composition of chemicals used. This system would enable

identification of illegal firecrackers with comparatively more ease. Size and mass of charge are two

basic factors that determine the noise level of a firecracker. By restricting these two prime factors,

noise standard is achieved more effectively. Though other factors like climatic conditions may affect

the noise level to some extent, but this system seems to us to be more dependable and logical, at

least on the materials made available before us.

146. On a comparison of the two systems, i.e. the present system of evaluating firecrackers on the

basis of noise levels, and the other where the firecrackers shall be evaluated on the basis of their

chemical composition, we feel that a change in the method of evaluating the firecrackers shall surely

be more beneficial. It shall reduce the expenditure that shall otherwise have to be incurred on

expensive instruments that are necessary for the purpose of measuring sound. The firecrackers shall

easily be identifiable on the basis of their mass of charge, and the weight of the chemicals contained

in the firecrackers can also be easily measured. There shall not be too much need of the personnel

technically qualified for measuring sound, as what would then be needed, would be to simply weigh

the chemical constituents. It shall to a great extent also be successful in putting an end to illegal

fireworks, which come in bigger sizes, as they now shall be more easily identifiable. In short, the

implementation of the rules relating to firecrackers shall be easier and carried out by the enforcing

authority more easily.

147. Keeping all these considerations and the various submissions made before this Court in mind,

we are of the opinion that a method as proposed by the learned Amicus Curiae, of fixing the

maximum chemical composition for each and every firecracker, keeping in mind the limit of

125dB(AI) as the maximum permissible limit, should be adopted. Every manufacturer should on the

box of each firecracker mention details of its chemical contents as well. In case of a failure on the

part of the manufacturer to mention these details or in cases where the contents of the box do not

match to the chemical formulae as stated on their box, the manufacturer shall be liable for criminal

prosecution.

148. The Department of Explosives should in public interest undertake necessary research activity

for the purpose and come out with the chemical formulae for each firecracker. The Department shall

at the time of giving the license for manufacturing a particular firecracker shall specify the ratio as

well as the maximum permissible weight of every chemical used for the purpose.

Response during hearing

149. The civic awareness towards prevention of noise pollution in India is not as high as is expected.

It is regrettable to see that people indulge into making noise beyond tolerable limits and create

health hazard unmindful of consequences which are likely to befall not only on others but also on

themselves who create noise. The enactment of laws has failed to create the requisite awareness.

The best time to create awareness is in the childhood. At middle- school level education and in the

age of adolescence the children should be taught in the schools, and in the homes as well by the

parents-- What are the consequences of noise pollution and how much health hazard is created by

bursting firecrackers?

150. An awareness towards protecting the environment from all sorts of pollutants and destructive

activities needs to be created in the minds at an younger age. Suitable courses of study need to be

devised by preparing text-books to be handed down to the youth in its shaping age and whilst they

are still in schools.

151. We are happy to note the way the people of the country and especially the younger generation

has responded to the interim order made from time to time by this Court. News reports came to our

notice wherein certain schools were stated to have organized special lectures for the children

pointing out the adverse effects of noise pollution created by firecrackers just before the schools

closed for Diwali festival. The children decided not to burst firecrackers during Diwali Festival. Some

volunteered and took a vow to burst such firecrackers as do not create intolerable noise and

confining their such fun and frolic only to the hours of the day and not to do so during the hours of

night. Such a response from young boys and girls who are our future and the educational institutions

on whom lie the responsibility of shaping the future of this country is most welcome.

152. Certain incidental and associated issues require to be dealt with and that we do hereafter.

Fixing of time limit for bursting firecrackers -- Is relaxation desirable for festivals?

153. The learned Amicus Curiae in his suggestions filed on 17th September 2001 had suggested that

the "Bursting of crackers should be prohibited during night time, between 10.00 p.m. and 06.00

a.m.". The Court had agreed and directed, vide Order dated 27.9.2001 -- "The use of fireworks or

firecrackers shall not be permitted except between 6.00 a.m. and 10.p.m. No fireworks or

firecrackers shall be used between 10.00 p.m. and 6.00 a.m. The Government of India, has also

expressed its opinion that there should be no relaxation in the time limit for bursting firecrackers.

Relaxation of restrictions on bursting of crackers from 10.00 p.m. to 6.00 a.m. shall not be given as it

is night time. During the night time, people sleep and the high level of noise has deleterious effects

on the health and well being of the people."

154. Several interlocutory applications have been filed in this Court, wherein it was pleaded that

restriction on bursting of firecrackers in the night should be removed during the Diwali Festival.

Similar relaxation was demanded for other festivals. These applications highlighted practices

prevalent in some of the western countries wherein such relaxation is allowed. We do not think that

we will be justified in granting any such relaxation. Indian society is pluralistic. People of this great

country belong to different castes and communities, have belief in different religions and customs

and celebrate different festivals. We are tolerant for each other. There is unity in diversity. If

relaxation is allowed to one there will be no justification for not permitting relaxation to others and

if we do so the relaxation will become the rule. It will be difficult to enforce the restriction.

155. The Calcutta High Court in the case of Moulana Mufti Syed Md. Noorur Rehman Barkati v. State

of West Bengal has expressed the following view:

"The condition of the European countries, England and America cannot be equated with the

condition prevailing in the State of West Bengal, particularly in the City of Calcutta. ...West Bengal

has got its own peculiar problem and this Court cannot decide a matter looking at Europe or America

where the amenities and the facilities are better. Density of population is very thin. Roads are

maintained in a perfect order. Traffic noise is insignificant. The use of horns by vehicles is a thing

which is prohibited there unless in case of emergency. People are disciplined. Traffic moves in a

disciplined manner. No horns are there. The Ambient Noise Level in those countries are not at par

with those noise level in the City of Calcutta and/or in different parts of State of West Bengal.

Accordingly, whatever may be decided by the European countries or America, cannot have any

direct bearing on the fixation of the sound level in the State of West Bengal. In other civilized

countries, cars move without making any noise or sound. Condition of the roads is such that it

cannot create any noise beyond tolerance. People in those countries are not in the habit of creating

unnecessary sounds but in our country because of the gift of the technology sound has become a

source of pleasure for few people including some young people. Use of unnecessary horn in vehicles

has become a part and parcel of Indian culture".

156. The picture of the entire country compared with the State of West Bengal does not bear any

material difference. Thus a rule, practice or provision as to relaxation in Europe or America may not

be of much help for us. They do not have many festivals or celebrations round the year. Their

festivals and events are only at national level and one for all, unlike ours. Further, in the European

countries or even in America an insignificant percentage of the population indulges in bursting

crackers. Very few families, mainly Indian, in these countries celebrate the festival of Diwali and

burst crackers. Thus the noise pollution produced by this small use of firecrackers is not a cause of

worry in these countries.

157. The situation in India is almost the opposite. The streets are congested and the density of

population per square kilometer is one of the highest in the world. Firecrackers are burst in almost

all the houses, thus leading to pollution in the form of noise and smoke- both on a large scale,

making it a cause of worry.

158. It is a judicially noticeable fact that in advanced countries there is a move for collective

celebration of festivals. For example, in United States, on May Day, a show of fireworks is arranged

outside the city. People assemble in large numbers to witness such show which is officially arranged

by the State. Such example can be emulated in our country. People belonging to that section of the

society which wishes to celebrate a festival or an occasion may be encouraged to organize such

event collectively and may have a show of fireworks away from the residential locality. Such a move

would save the people from the hazardous effects of noise pollution caused by fireworks and at the

same time bring the people together and contribute in developing closeness, unity and brotherhood.

159. In our opinion, the total restriction on bursting firecrackers between 10 pm and 6 am must

continue without any relaxation in favour of anyone.

Whether such restriction is violative of Article 25 of the Constitution ?

160. The affidavit filed by Mr. Mariappan, the Secretary of the Tamil Nadu Fireworks and Amorces

Manufacturers Association, alleges the restriction on bursting firecrackers to amount to

infringement of religious rights under Article 25. He says -

"Therefore, the interference with the date and time of celebrating the festivals, amounts to

infringement of religious rights under Article 25 and the limitation under Article 21 does not cause

any health hazard."

161. The Court by restricting the time of bursting the firecrackers has not in any way violated the

religious rights of any person as enshrined under Article 25 of the Constitution. The festival of Diwali

is mainly associated with pooja performed on the auspicious day and not with firecrackers. In no

religious text book it is written that Diwali has to be celebrated by bursting crackers. Diwali is

considered as a festival of lights, not of noises. Shelter in the name of religion cannot be sought for,

for bursting firecrackers and that too at odd hours.

162. Another argument that has been put forward to remove the restriction during festivals is that

they are celebrated by most of the people and that an inconvenience to a few should not become

the reason for restraining a greater lot.

163. In P.A. Jacob v. Superintendent of Police, Kottayam, it has been said "However wide a right is, it

cannot be as wide, as to destroy similar or other rights in others. Jefferson said: No one has a natural

right to commit aggression on the equal rights of another. J.S. Mill said: If all mankind minus one

were of one opinion, and if only one person was of contrary opinion, mankind would be no more

justified in silencing that one person, than he, if he had the power, would be justified in silencing

mankind."

164. If at all the people feel it necessary to burst firecrackers they can choose and go for such

firecrackers which on being burst emit colours or lights mainly and produce very little or no sound.

Their use can be permitted. The Department of Explosives can, while working out formulae for

firecrackers, also along side classify the crackers into two categories that could be: (a) sound

emitting crackers, and (b) colours/light emitting crackers. A few examples of such colour emitting

crackers are, snake tablets, sparklers, pencils, hunters, chakri, colour rockets, flowerpots,

parachutes, etc. Category (b) firecrackers may not have restriction as to timings. Though, it would

need expert examination and opinion if colour emitting crackers also emit fumes and gases which

though not source of noise pollution yet would cause air pollution, equally bad. Till such time the

Department of Explosives makes any such classification there shall be a total ban on bursting of

firecrackers between 10 p.m. and 6 a.m.

Can an exception be carved out for firecrackers meant for export exclusively.

165. Should the Environment (Protection) Rules, 1986, be amended in such a way that the

firecrackers manufactured for export and use in other countries are exempted from the Indian noise

standards?

166. Mr. Mariappan, the Secretary of The Tamil Nadu Fireworks and Amorces Manufactures'

Association, had in his affidavit dated 8th February 2002, requested the Court to remove the

restriction on manufacturing fireworks meant for exporting only and which are in excess of the

sound levels prescribed for fireworks within the country. It is submitted, "the Indian Standards on

noise of firecrackers do not have any relevance to firecrackers intended for export. But the order of

the Hon'ble Supreme Court prohibits manufacture of firecrackers generating noise level exceeding

125 dB(AI) or 145 dB(C)pk at 4 meters distance from the point of bursting. There is a total restriction

on the manufacture of fireworks and crackers without any discrimination being made between

firecrackers that are manufactured for use in India and those for use in foreign countries. The trade

having been globalised, Indian firecrackers have to necessarily comply with foreign standards if they

are to enter into the international markets. The Department of Explosives is already having various

provisions laid down under the Explosives Act, 1884 and the Explosives Rules, 1983, which govern

the export of fireworks. Prior approval from the Department of Explosives is imperative for every

export of fireworks. Therefore, the comprehensive position now imposed on firecrackers should be

modified exempting firecrackers that are manufactured for use in foreign countries, from the

purview of the Environment (Protection) Act 1986 and the Rules framed thereunder."

167. The Court on the above-mentioned submission sought for the view of the Department of

Explosives. The Department has expressed the view that firecrackers that are to be sold in foreign

countries may be excluded from the purview of the noise standards provided they conform to the

rules for manufacturing the goods for export. They also submitted - "The firecrackers manufactured

and sold for export purpose may be excluded from the purview of the firecrackers' noise standards

provided they follow the rules for manufacturing of goods for export. This will enable the

manufacturers to compete in the world market with the other suppliers of firecrackers. The

firecrackers manufactured for export shall have a different colour code and a clear print indicating

that they are not to be sold in India."

168. We are inclined to agree with the view of the Department of Explosives. Firecrackers for the

purpose of export may be manufactured and bear higher noise levels subject to the following

conditions: (i) The manufacturer should be permitted to do so only when he has an export order

with him and not otherwise; (ii) The noise levels for these firecrackers should conform to the noise

standards prescribed in the country to which they are intended to be exported as per the export

order; (iii) These firecrackers should have a different colour packing, from those intended to be sold

in India; (iv) The firecrackers should have a clear print on them stating that they are not to be sold in

India. In case these firecrackers are found being sold in Indian territory, then the manufacturer and

the dealer selling these goods should be held liable.

How to check/control noise pollution

169. The need for checking noise pollution as highlighted by the petitioners and several intervenors

deserves appreciation.

170. Need for specific legislation to control and prevent noise pollution still needs some emphasis.

Undoubtedly, some laws have been enacted. Yet, compared with the legislation in developed

countries India is still lagging behind in enacting adequate and scientific legislations. We need to

have one simple but specific and detailed legislation dealing with several aspects referable to noise

pollution and providing measures of control therefor.

171. There is an equal need of developing mechanism and infrastructure for enforcement of the

prevalent laws. Those who are entrusted with the task of enforcing laws directed towards controlling

noise pollution, must be so trained as to acquire expertise in the matter of fighting against noise

pollution by taking preventive and deterrent measures both. They need to be equipped with the

requisite equipments such as audio meters as would help them in detecting the level of noise

pollution more so when it crosses the permissible limits and the source thereof.

172. Above all, there is need for creating general awareness towards the hazardous effects of noise

pollution. Particularly, in our country the people generally lack consciousness of the ill effects which

noise pollution creates and how the society including they themselves stand to benefit by preventing

generation and emission of noise pollution. The target area should be educational institutions and

more particularly schools. The young children of impressionable age should be motivated to desist

from playing with firecrackers, use of high sound producing equipments and instruments on

festivals, religious and social functions, family get- togethers and celebrations etc. which cause noise

pollution. Suitable chapters can be added into text-books which teach civic sense to the children and

teach them how to be good and responsible citizen which would include learning by heart of various

fundamental duties and that would obviously include learning not to create noise pollution and to

prevent if generated by others. Holding of special talks and lectures can be organized in the schools

to highlight the menace of noise pollution and the role of the children in preventing it. For these

purposes the State must play its role by the support and cooperation of non-government

organizations (NGOs) can also be enlisted.

173. Similar awareness needs to be created in police and civil administration by means of carrying

out a special drive to make them understand the various measures to curb the problems and the

laws on the subject. Residents Welfare Associations (RAWs), Service Clubs (such as Rotary

International and Lions International) and Societies engaged in preventing noise pollution as part of

their projects need to be encouraged and actively involved by the local administration. Festival and

ceremonies wherein the fireworks and crackers are customarily burst can be accompanied by

earmarking a place and time wherein and when all the people can come together and witness or

view a show of fireworks dispensing with the need of crackers being burst in the residential areas

and that too which is done without any regard to timings. The manufacturers can be encouraged to

make such fireworks as would display more the colours rather than make noise.

174. Not only the use of loudspeakers and playing of hi-fi amplifier systems has to be regulated even

the playing of high sound instruments like drums, tom-toms, trumpets, bugles and the like which

create noise beyond tolerable limits need to be regulated. The law enforcing agencies must be

equipped with necessary instruments and facilities out of which sound level meters conforming to

Bureau of Indian Standards (BIS) code are a bare necessity.

175. Preventive measures need to be directed more effectively at the source. To illustrate, the horns

which if fitted with the automobiles would create hawking sound beyond permissible limits, should

not be allowed to be manufactured or sold in the market as once they are available they are likely to

be used.

176. Loudspeakers and amplifiers or other equipments or gadgets which produce offending noise

once detected as violating the law, should be liable to be seized and confiscated by making provision

in the law in that behalf.

177. Prohibiting the sale of such firecrackers which create noise pollution by producing noise beyond

permissible limits is practically unmanageable. A better option certainly is to prescribe the chemical

contents and composition for each type of firecrackers to effectively curb noise pollution. The Chief

Controller of Explosives has also been agreeable to take steps in this regard but has pointed out

difficulties attributable to shortage of personnel and non- availability of lab facilities and requisite

equipments for this purpose.

178. We hasten to add that during the course of the proceedings the parties have been generally

agreeable to solicit directions on the lines as indicated hereinabove. There should be no difficulty in

issuing directions and ensuring compliance to the extent as indicated hereinabove. Wherever there

are difficulties they have to be sorted out in the larger public interest.

DIRECTIONS

179. It is hereby directed as under:-

I. Firecrackers

1. On a comparison of the two systems, i.e. the present system of evaluating firecrackers on the

basis of noise levels, and the other where the firecrackers shall be evaluated on the basis of chemical

composition, we feel that the latter method is more practical and workable in Indian circumstances.

It shall be followed unless and until replaced by a better system.

2. The Department of Explosives (DOE) shall undertake necessary research activity for the purpose

and come out with the chemical formulae for each type or category or class of firecrackers. The DOE

shall specify the proportion/composition as well as the maximum permissible weight of every

chemical used in manufacturing firecrackers.

3. The Department of Explosives may divide the firecrackers into two categories- (i) Sound emitting

firecrackers, and (ii) Colour/light emitting firecrackers.

4. There shall be a complete ban on bursting sound emitting firecrackers between 10 pm and 6 am.

It is not necessary to impose restrictions as to time on bursting of colour/light emitting firecrackers.

5. Every manufacturer shall on the box of each firecracker mention details of its chemical contents

and that it satisfies the requirement as laid down by DOE. In case of a failure on the part of the

manufacturer to mention the details or in cases where the contents of the box do not match the

chemical formulae as stated on the box, the manufacturer may be held liable.

6. Firecrackers for the purpose of export may be manufactured bearing higher noise levels subject to

the following conditions: (i) The manufacturer should be permitted to do so only when he has an

export order with him and not otherwise;(ii) The noise levels for these firecrackers should conform

to the noise standards prescribed in the country to which they are intended to be exported as per

the export order; (iii) These firecrackers should have a different colour packing, from those intended

to be sold in India; (iv) They must carry a declaration printed thereon something like 'not for sale in

India' or 'only for export to country AB' and so on.

II. Loudspeakers

1. The noise level at the boundary of the public place, where loudspeaker or public address system

or any other noise source is being used shall not exceed 10 dB(A) above the ambient noise standards

for the area or 75 dB(A) whichever is lower.

2. No one shall beat a drum or tom-tom or blow a trumpet or beat or sound any instrument or use

any sound amplifier at night (between 10. 00 p.m. and 6.a.m.) except in public emergencies. 3. The

peripheral noise level of privately owned sound system shall not exceed by more than 5 dB(A) than

the ambient air quality standard specified for the area in which it is used, at the boundary of the

private place.

III. Vehicular Noise

No horn should be allowed to be used at night (between 10 p.m. and 6 a.m.) in residential areas

except in exceptional circumstances.

IV. Awareness

1. There is a need for creating general awareness towards the hazardous effects of noise pollution.

Suitable chapters may be added in the text-books which teach civic sense to the children and youth

at the initial/early level of education. Special talks and lectures be organised in the schools to

highlight the menace of noise pollution and the role of the children and younger generation in

preventing it. Police and civic administration should be trained to understand the various methods

to curb the problem and also the laws on the subject.

2. The State must play an active role in this process. Residents Welfare Associations, Service Clubs

and Societies engaged in preventing noise pollution as a part of their projects need to be

encouraged and actively involved by the local administration.

3. Special public awareness campaigns in anticipation of festivals, events and ceremonial occasions

whereat firecrackers are likely to be used, need to be carried out.

The abovesaid guidelines are issued in exercise of power conferred on this Court under Articles 141

and 142 of the Constitution of India. These would remain in force until modified by this Court or

superseded by an appropriate legislation.

V Generally1. The States shall make provision for seizure and confiscation of loudspeakers,

amplifiers and such other equipments as are found to be creating noise beyond the permissible

limits.2. Rule 3 of the Noise Pollution (Regulation and Control) Rules, 2000 makes provision for

specifying ambient air quality standards in respect of noise for different areas/zones, categorization

of the areas for the purpose of implementation of noise standards, authorizing the authorities for

enforcement and achievement of laid down standards. The Central Government/State Governments

shall take steps for laying down such standards and notifying the authorities where it has not already

been done.

180. Though, the matters are closed in consonance with the directions as above issued in public

interest, there will be liberty of seeking further directions as and when required and, in particular, in

the event of any difficulty arising in implementing the directions.

181. The CWP, CA and all pending IAs be treated as disposed of.

182. Before parting, we would like to place on record our deep appreciation of valuable assistance

rendered by Shri Jitendra Sharma, Senior Advocate assisted by Shri Sandeep Narain, Advocate (and

earlier by late Shri Pankaj Kalra, Advocate) who highlighted several relevant aspects of the issues

before us and also helped in formulating the guidelines issued as above.

Equivalent Citation: 2005(1)KLT650


W.P. No. 1062 of 2005

Appellants: Pavithran Vs. Respondent: District Superintendent of Police: Decided On: 04.01.2005

Hon'ble Judges:

K.M. Joseph, J.

Counsels:

For Appellant/Petitioner/Plaintiff: C.P. Peethambaran and R. Dyana, Advs.

For Respondents/Defendant: George Mecheril, Government Pleader


Catch Words:

Noise Pollution, Statutory Authority

Acts/Rules/Orders:

Kerala Noise Pollution (Regulation and Control) Rules, 2000 - Rule 5(2)

Cases Referred:

Forum for the Prevention of Environmental and Sound Pollution v. Union of India, 2004(1) KLT 134

JUDGMENT

K.M. Joseph, J.

1. The prayer in the Writ Petition is to quash part of the order in Ext.P2 rejecting the request for use

of loud speaker from 6 p.m. on 29.1.2005 to 6 a.m. on 1.2.2005 on the occasion of the annual

Theyyam Festival. The further prayer is for directing the second respondent to grant permission for

using loud speakers from 6 p.m. on 29.1.2005 to 6 a.m. of 1.2.2005.

2. The complaint of the petitioner is that Theyyam is performed in a remote village area and all the

people who are the devotees without any objection wanted the loud speaker to be used for

conveniently enjoying the cultural programes apart from hearing the Thottampattu and Drum

beating. It is stated that this year programmes are consisting of Mimics, Ganamela and Opera of

Adhimuthachan to be performed by Thiruvithankoor Nadakavethy, Kottayam. Ext.Pl is the

programme notice. Learned counsel for the petitioner submits that Ext.P2 application was made for

permission only for three days to the second respondent through the third respondent and the third

respondent rejected the application. Learned counsel for the petitioner relies on the decision

reported in Forum for the Prevention of Environmental and Sound Pollution v. Union of India

(2004(1) KLT 134) to contend that the Government has ample power to grant permit for using loud

speaker during night hours for a limited period and purposes. Learned counsel for the petitioner

would further contend that the order is non-speaking and he would also rely on Rules 5(1) and (3) of

the Noise Pollution (Regulation and Control) Rules, 2000. Learned counsel contends that the

Government has power under Sub-rule (3) to permit the use of loud speakers in the night hours on

or during any cultural or religious occasion of a limited duration not exceeding 15 days in all during a

calender year. A perusal of Rule5 of the Rules will show that the contention of the petitioner cannot

be accepted. Sub-rule (1) of Rule5 makes it clear that the loud speaker or a public address system

shall not be used except after obtaining written permission from the authority. Sub-rule (2) casts an

embargo against the use of loud speaker during night, which is shown in the statute itself as 10 p.m.

to 6 a.m. except in the cases of closed premises for communication. Examples are given, namely,

auditorium, conference rooms, community halls and banquet halls. Sub-rule (3) no doubt acts as a

proviso to Sub-rule (2). This is for the reason that despite the embargo against the use of loud

speaker during night, that is, between 10 p.m. and 6 a.m., power is vested with the State

Government to permit use of loud speakers during night hours which is confined to 10 p.m. to 12

midnight on or during any cultural or religious occasion of a limited duration not exceeding fifteen

days. The contention of the learned counsel for the petitioner would appear to be that since the

word 'or' is used in Sub-rule (3), it means that night hours as defined as 10 p.m. to 12 midnight need

not necessarily limit the power in respect of a cultural or a religious occasion. This argument has only

to be rejected for, it is clear that the power to relax the rigour of Sub-rule.(2) is available to the State

Government only in respect of a cultural or religious occasion of a limited duration not exceeding 15

days and it is in respect of such a cultural or religious occasion that Government has power to relax

the limitation embedded in Sub-rule (2) against the use of loud speaker or public address system

during night. In other words, the relaxation of the embargo in Sub-rule (2) is limited to 10 p.m. and

12 midnight and that too for a period of 15 days in a calender year. To put it differently, the right to

use loud speaker or a public address system cannot be given under the Rules for use beyond 12'o

clock in the night even on a religious or cultural occasion. If that be so, the contention of the

petitioner that the petitioner is entitled to use the loud speaker beyond 12'o clock in the night has

necessarily to be rejected. Learned counsel further contended that notwithstanding the Rules, this

Court has power under Article 226 to permit use of loud speakers having regard to all facts and

particularly since no injury is caused to anyone and all persons in the locality are looking forward to

the items which are to be performed after 12'o clock and nobody has any objection. I am of the view

that such a contention will be in the teeth of a statutory prohibition. It is trite law that powers under

Article 226 of the Constitution be they extraordinary are not meant to overwhelm the mandate of

the statute. On the other hand the power under Article 226 of the Constitution wide as it may be, it

cannot be used to issue a direction to a statutory authority to act against the statute. Learned

Government Pleader on instructions submits that Government of Kerala has issued G.O.(Ms) No.

11/2005/Home. dated 7.1.2005 wherein the Government has been pleased to permit the use of loud

speaker till 12'o clock in the night. The judgment of the Division Bench reported in Forum for the

Prevention of Environmental and Sound Pollution's case also does not support the contention of the

petitioner that permission can be granted to use loud speakers beyond 12'o clock in the night. In

view of this order even though the request of the petitioner for use of the loud speaker beyond 12'o

clock in the night cannot be granted, at the same time the petitioner can be granted permission till

12'o clock.

3. Learned counsel for the petitioner submits that after the filing of the Writ Petition, the petitioner

has filed an application and a chalan is also received.

Accordingly there will be a direction to the second respondent to consider and pass appropriate

orders on the application filed by the petitioner in accordance with law subject to the observations

made in this judgment and in the light of the Government Order, a copy of which shall be produced

by the petitioner, within a period of two days from the date of receipt of a copy of this judgment.

Writ Petition is disposed of as above.


W.P. Nos. 35483 and 37462 of 2002 and W.P.M.P. Nos. 52936 and 56253 of 2002


Appellants: Sundaram Brake Linings Ltd., rep. by its Financial Controller and Secretary

Vs. Respondent: Corporation of Chennai, rep. by its Commissioner and Ors.

AND

Appellants: Suriya Sweets, rep. by its Managing Partner, Mrs. R. Parvathy

Vs. Respondent: Tamilnadu Pollution Control Board, rep. by its Member Secretary and The District

Environmental Engineer, Tamil Nadu Pollution Control Board

Hon'ble Judges:

N.V. Balasubramanian and R. Banumathi, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: P.S. Raman, Sr. Counsel for P.R. Raman and C. Seethapathy in W.P.

No. 35483 of 2002 and Nalini Chidambaram, Sr. Counsel for S. Silambannan in W.P. No. 37462 of

2002

For Respondents/Defendant: Nalini Chidambaram, Sr. Counsel for S. Silambannan for R5, P.

Bagyalakshmi, Adv. for R1, V. Perumal, Adv. for R2, S. Srinivasan, G.A. for R3 and Rita Chandrasekar,

Adv. for R4 in W.P. Nos. 35483 and 37462 of 2002


Catch Words:

Air Pollution, Emission, Industrial Plant, Mandamus, Noise Pollution, Odour, Pollution Control, Public

Interest, Sewage, Trade Effluent, Trade Effluent Discharge

Acts/Rules/Orders:


Cases Referred:

Griffiths v. J.P. Harrison (Watford) Ltd., LVIII ITR 328; Rama Muthuramalingam v. The Deputy

Superintendent of Police, 2004(5) CTC 554

Case Note:

Environment � pollution � Town and Country Planning Act, 1971 and Rule 7 of Development

Control Rules � petition to direct authorities to take action against respondent for causing nuisance

and environmental pollution � respondent business cannot be treated as cottage industry �

business of respondent situated in primary residential area in violation of Development Control

Rules � Corporation authorities directed to take necessary action against respondent.

ORDER

N.V. Balasubramanian, J.

1. W.P. No. 35483 of 2002 is filed by Sundaram Brake Linings Ltd., No. 81, First Main Road, R.A.

Puram, Chennai represented by its Financial Controller and Secretary (hereinafter referred to as 'the

Company) for the issue of a writ of Mandamus directing the respondents 1 to 4 in the writ petition,

namely, Corporation of Chennai, Chennai Metropolitan Development Authority, The Deputy

Commissioner of Police, Traffic (South), Vepery, Chennai and Tamil Nadu Pollution Control Board to

initiate action against the fifth respondent, namely, Suriya Sweets, the petitioner in the other writ

petition for operating a full fledged commercial establishment in No. 66, First Main Road, R.A.

Puram, Chennai 600 028 causing inconvenience and hardship to the residents of the locality, without

necessary approvals and licences of the statutory authorities.

2. W.P. No. 37462 of 2002 is filed by M/s. Suriya Sweets, represented by its Managing Partner, No.

47, I Main Road, R.A. Puram, Chennai 600 028. The writ petition has been filed to quash the order of

the Tamil Nadu Pollution Control Board made in proceedings No.T1/TNPCBD/F.1070/CHN/2002

dated 9.9.2002 and to direct the respondents in the writ petition, namely, the Tamil Nadu Pollution

Control Board and its District Environmental Engineer, to pass orders on the consent application

dated 1.7.2002 filed under Section 25 of the Water (Prevention & Control of Pollution) Act, 1974

(hereinafter referred to as 'the Water Act').

3. Both the writ petitions were heard together and the points raised in them are almost common

and hence, we are disposing of both the writ petition by this common judgment.

4. In so far as W.P. No. 37462 of 2002 filed by M/s. Suriya Sweets (hereinafter referred to as 'Suriya

Sweets') is concerned, it is stated in the affidavit filed in support of the petition that Suriya Sweets is

a partnership concern and it commenced its business of selling sweets in the year 1998. It is stated

that Suriya Sweets is a sweet shop wherein sweets, snacks and chat eatables are made and sold. It is

also stated that it has a small kitchen for the preparation of sweets and snacks which are sold in the

sale area in the front side of the building. It is stated that the activities carried on by Suriya Sweets

are not causing any pollution. It is stated that due to the commercial nature of the business of selling

sweets and eatables prepared, Suriya Sweets complied with all the formalities and procedures and

obtained necessary licences for running the concern. It is also stated that Suriya Sweets obtained a

food licence under Section 279 of the Chennai City Municipal Corporation Act, 1919 from the

Revenue Department of the Corporation of Chennai. It is also stated that Suriya Sweets has a

commercial sewerage pipe connection from the Chennai Metropolitan Water Sewerage Board

(CMWSSB). It is stated that Suriya Sweets has all other permissions like, Parking Licence from the

police, Certificate from the Department of Industries and Commerce as the activity of Suriya Sweets

falls under the classification of Cottage Industry and a copy of the Certificate from Chennai

Metropolitan Development Authority (CDMA) stating that the activity of manufacturing sweets is a

permissible activity in the Zone under the CDMA Rules and Regulations is also produced.

5. Suriya Sweets referred to the show-cause notice issued by the District Environmental Engineer,

Tamil Nadu Pollution Control Board (hereinafter referred to as 'the Pollution Control Board) dated

2.4.2002 as to why penal action should not be taken against Suriya Sweets for the offence under

Section 44 of the Water Act and also issued directions under Section 33A of the Water Act for the

closure of the unit, stoppage of power supply, etc. Suriya Sweets sent a reply on 23.4.2002 wherein

it is stated that all permissions from other authorities have been sought and granted and there was

no trade effluent discharged in the activity of sweet making by Suriya Sweets. It is also stated that

the discharge water from sweet making was filtered before being let into the sewerage of CMWSSB.

It is stated that Suriya Sweets has constructed three chambers with filter points into which water is

let and undertakes to abide by any direction to comply with the requirements of the Water Act and

Rules. It is also stated that Suriya Sweets applied for consent from the Pollution Control Board under

the Water Act and under the Air (Prevention and Control of Pollution) Act, 1981 (hereinafter

referred to as 'the Air Act') by letter dated 1.7.2002 with necessary documents. Suriya Sweets

referred to the proceedings of the Pollution Control Board dated 9.9.2002 wherein it is stated that

complaints have been received from the residents of First Main Road, R.A. Puram, Chennai regarding

odour and noise nuisance emanating from the operations of Suriya Sweets. It is also alleged that the

odour from the preparation of sweets and savouries created odour nuisance and the vehicular

movement due to the activity caused congestion and noise nuisance. It is also alleged that the trade

effluent generated from the unit is discharged without treatment. The further allegation is that the

premises is located in the primary residential area and the operations are without the consent of the

Pollution Control Board. Hence, Suriya Sweets was directed to relocate its unit within two months

from the date of receipt of the order dated 9.9.2002.

6. Suriya Sweets admitted that it is located in a primary residential area, but it is stated that in that

area, there is a primary school and Suriya Sweets is not responsible for the traffic congestion. In the

affidavit, Suriya Sweets also stated that there is a Country Club situate close to it and it has a

restaurant and other activities and there is also a dental clinic and other commercial activities in the

First Main Road, R.A. Puram, Chennai. It is stated that major sweet concerns in the City are located

in residential localities and sweet shops are not considered as polluting industries and Suriya Sweets

has been functioning without any complaint from 1998. It is therefore stated that without passing

any order in the consent application under Water Act and Air Act, the Pollution Control Board passed

the impugned order directing Suriya Sweets to relocate its unit. Hence, the writ petition has been

filed challenging the order on various grounds raised in the writ petition.

7. W.P. No. 35483 of 2002 is filed by the company (Sundaram Brake Linings Ltd). As already noticed

by us, it is for the issue of a writ of Mandamus directing the respondents 1 to 4 in the writ petition to

take action against Suriya Sweets which, according to the company, is running a full-fledged

restaurant-cum-snack bar-cum-sweet stall-cum-departmental store in primary residential locality. It

is stated that Suriya Sweets is functioning just opposite to the residence of the Chairman and

Managing Director of the company.

8. In the affidavit filed in support of the petition, it is alleged that First Main Road, R.A. Puram,

Chennai is a primary residential area and Suriya Sweets has a full-fledged catering establishment

with full table service, a huge sweet and savouries shopping centre, a huge vegetable and fruit

market, etc., and it has the staff of several cooks, servers, washing staff, sales personnel and other

watch and ward apart from managerial staff. In the affidavit various problems are listed such as,

garbage disposal and sewerage problems coupled with 50 employees living in the same premises. It

is stated that due to its popularity, the road is filled with motor cars, motor cycles, etc. leading to

lack of any space in the road for free movement of vehicles. It is stated that nearly 600 vehicles per

day are visiting Suriya Sweets. It is further alleged that excessive movement of vehicles is also

causing great noise pollution in the area apart from causing dust pollution and smoke emission

causing problems to the neighbours. It is also stated that Suriya Sweets is functioning for 12 hours

per day. A reference is made to the complaint made by the company and neighbours. The writ

petition has been filed alleging that Suriya Sweets is located in the area which is classified as primary

residential use zone and the commercial activities carried on by Suriya Sweets are impermissible.

The petitioner company also referred to the licence obtained by Suriya Sweets from the Corporation

of Chennai which was meant for trading as Sweet Meat Stall, valid till 31.3.2002. It is stated that the

licence for running Sweet Meat Stall should not be renewed as Suriya Sweets has been running a

full-fledged restaurant and catering facilities in violation of the said licence. It is also stated that the

police pleaded helplessness as the matter is under the purview of Corporation and the petitioner

company also sent a reminder letter dated 31.5.2002 and in spite of the same, the licence was

renewed beyond 31.3.2002. It is stated that the writ petition is filed not only to safeguard the

property and health of its Managing Director and his family who reside in its premises, but also to

safeguard the entire citizenry of the locality. It is alleged that large scale cooking and catering

activities including manufacturing sweets and savouries attract the provisions of the Pollution

Control Acts. It is stated that it is not clear that Suriya Sweets obtained the requisite consent from

the Pollution Control Board. Hence, the writ petition has been filed with the prayer as stated earlier.

9. In the writ petition filed by the company, the third respondent, namely, The Deputy Commissioner

of Police, Traffic (South), Vepery, Chennai has filed a detailed counter affidavit. So also, the

Commissioner, Corporation of Chennai has filed an independent counter affidavit. Suriya Sweets also

filed a separate counter affidavit. The Pollution Control Board has placed before the Court its

reports.

10. In the counter affidavit filed by Suriya Sweets in the writ petition filed by the company, the main

allegation is that the company has no locus standi to file the writ petition. It is fairly admitted that

Suriya Sweets is a sweet shop where sweets and savouries are sold and it has a small kitchen for the

preparation of sweets and savouries. It is also its case that its activities do not cause any pollution. It

is stated that due to the commercial nature of the business of selling sweets and eatables and

preparation thereof, Suriya Sweets obtained necessary licences and most of the averments in the

counter affidavit are all repetition of the averments made in the writ petition filed by it. In the

counter affidavit there is also a reference to the interim order of this Court dated 21.11.2002 by

which interim stay was granted of the order of the Pollution Control Board with a condition that

Suriya Sweets should not run any restaurant except selling sweets and savouries.

11. We have gone through all the counter affidavits filed by the parties as well as the reports filed by

the Pollution Control Board. As already stated by us, the issues raised in both the writ petitions are

common and hence, both the writ petitions were considered together. We heard Mr. P.S. Raman,

learned senior counsel for the petitioner in W.P. No. 35483 of 2002 and Mr. Nalini Chidambaram,

learned senior counsel for the petitioner in W.P. No. 37462 of 2002, Mr. Bagyalakshmi, learned

counsel for the Corporation of Chennai, Mr. V. Perumal, learned counsel for Chennai Metropolitan

Development Authority (CMDA) and Mr. Rita Chandrasekar, learned counsel for the Pollution

Control Board.

12. After considering the arguments of learned senior counsel and learned counsel for the parties,

we are of the view, it would be convenient to consider the points that arise in the writ petitions as

under:

LOCATION:

13. The first point arises with regard to the location of Suriya Sweets. The Government of Tamil

Nadu enacted an Act called, The Tamil Nadu Town and Country Planning Act, 1971 with the avowed

objects to provide for planning the development and use of rural and urban land in the State of

Tamil Nadu and for purposes connected therewith and the Act was published in the Tamil Nadu

Government Gazette dated 29.11.1972. There is no dispute that the Town and Country Planning Act

is in force in the area in question. Section 9-C of the said Act provides that CMDA shall carry out a

survey of the Chennai Metropolitan Planning Area and prepare a master plan as referred to in

Section 17 of the Act. Accordingly, CMDA has carried out necessary surveys and studies and

prepared a master plan for Chennai Metropolitan Area which was approved by the Government of

Tamil Nadu also. The master plan prepared by the CMDA has been approved by the Government

laying down policies and programmes for the overall development of Chennai Metropolitan Areas

taking long term view requirements of the City. CMDA has classified all lands in Chennai

Metropolitan Area into ten use zones, namely, primary residential use zone, mixed residential use

zone, commercial use zone, etc., and in each zone, certain uses are permitted. For use of each zone,

there are regulations for construction of buildings in respect of height of the building, floor space

index, etc., and the grant of planning permission for construction of building is regulated by the

Development Control Rules for Chennai Metropolitan Area (hereinafter referred to as 'the

Development Control Rules'). Rule 7 of the Development Control Rules deals with primary

residential use zone and Rule 8 deals with mixed residential use zone, Rule 9 relates to commercial

use zone and Rule 10 deals with light industrial zone. There are Rules dealing with other zones also,

but however, we are not concerned with the same. In respect of primary residential use zone, the

Development Control Rules provide that buildings or premises shall be normally permitted only for

the purposes mentioned in Rule 7 and the relevant sub-rules for the purpose of this case are 7(a)(iii),

7(a)(iv), 7(a)(v), 7(a)(x), 7(b), 7(b)(i) and 7(c) and the said sub-rules are as under:-

"7. Primary residential Use Zone:-

(a) In the Primary Residential use zone, buildings or premises shall be normally permitted only for

the following purposes and accessory uses. Permissible non-residential activity shall be limited to

one in a sub-division.

(i) & (ii) xxxx

(iii) Petty shops dealing with daily essentials including retail sale of provisions, soft drinks, cigarettes,

newspapers, tea stalls, confectionary retail shops, mutton stall and milk kiosks, cycle repair shops,

tailoring shops and trades declared as non-offensive as per G.O. Ms. No. 2771, Rural Development

and Local Administration dated the 22nd December, 1962 (as amended from time to time) may be

permitted subject to the restrictions contained in the said order occupying a floor area not

exceeding 20 square metres.

(iv) Nursery, Primary and high schools.

(v) School of commerce including tutorial institutions occupying a floor area not exceeding 40 square

metres.

(iv) to (ix) xxxx

(x) Cottage industries listed in G.O. Ms. Nos.565 and 566, dated the 12th March 1962 as amended

run by power upto 5 horse power. Also craft centres and assembly of electronic parts for

manufacture of radios transistors, television sets, computer chips and such others with installations

not exceeding 5 HP and the number of employees not exceeding 25.

(xi) xxxx

(b) The following uses may be permitted with special sanctions of the Authority.

(i) Hostels, dormitories, restaurants not exceeding 300 square metres in floor area.

(ii) to (viii) xxx

(c) all uses not specifically permitted under sub-rules (a) and (b) above shall be prohibited in the

zone."

It is seen that there are permitted non-residential uses in primary residential use zone with special

sanctions of the Authority as described in Rule 7(b) of the Development Control Rules. In Rule 7(b)(i),

hostels, dormitories, restaurants not exceeding 300 square metres in floor area are dealt with. In

mixed residential use zone which is dealt with in Rule 8 of the Development Control Rules, all uses

permissible under sub-rules (a) and (b) of Rule 7 are permitted. Under Rule 8(a)(iii), restaurants

occupying floor area not exceeding 500 square metres are permitted in mixed residential use zone. It

is also relevant to notice that under Rule 8(a)(v), establishment and shops retailing in vegetables,

fruits, flowers, fish, meat and such other daily necessities of the residents occupying a floor area not

exceeding 500 square metres or an organised markets are all permitted in mixed residential use

zone. Rule 8(b) deals with the permission to be granted with special sanction of the authority for the

uses mentioned thereunder.

14. Admittedly, there is no dispute that Suriya Sweets is located at No. 66, First Main Road, R.A.

Puram, Chennai and it is situate in an area which is classified as primary residential use zone. The

case of Suriya Sweets is that though its unit is situate in primary residential use zone, its activity of

manufacture and sale of sweets would fall under cottage industry which is a permissible non-

residential activity in the said zone. On the basis of order of this Court in W.P.M.P. No. 56253 of

2002 dated 21.11.2002, an interim stay of relocation of the sweet stall was granted subject to the

condition that Suriya Sweets should not run any restaurant except selling sweets and savouries. That

order came to be modified by this Court by order dated 1.4.2004 directing Suriya Sweets not to carry

on any manufacturing activity in sweets and savouries or run the restaurant for serving sweets and

savouries. This Court also ordered that sweets and savouries may be manufactured elsewhere where

it is permissible without causing any pollution and such sweets can be brought to the present shop

at No. 66 (Old No. 47), First Main Road, R.A. Puram, Chennai 28 and can be sold there. This order

was also again modified by order dated 30.4.2004 wherein it was held that Suriya Sweets, which was

running its business, should continue to do so and it was only a temporary measure till the Pollution

Control Board takes measures as mentioned in the said order.

15. Section 47 of the Town and Country Planning Act provides that after the coming into operation

of any development plan in any area, no person other than any State Government or the Central

Government or any local authority, shall use or cause to be used, any land or carry out any

development in that area otherwise than in conformity with such development plan. Section 48 of

the said Act deals with the restrictions on buildings and lands in the area of the planning authority.

Section 49 deals with application for permission and Section 50 deals with the duration of

permission and Section 52 provides for appeal against the order refusing to grant permission or

granting permission subject to certain conditions. Suriya Sweets claims itself to be a cottage

industry. The cottage industries which are permissible to be located in primary residential use zone

are listed in Annexure-V of the Development Control Rules. Item No. 4 of the said Annexure refers to

bakery, biscuits, cakes and item No. 6 refers to confectionery sweets.

16. The first question that arises is whether the location of Suriya Sweets in primary residential use

zone is permissible under Rule 7 of the Development Control Rules. It is fairly stated by Mr. Nalini

Chidambaram, learned senior counsel for Suriya Sweets that it has not obtained any special sanction

of the authority to run the restaurant. The submission of Mr. P.S. Raman, learned senior counsel for

the company is that the activity of manufacture and sale of sweets and savouries is not permissible

in primary residential use zone under Rule 7 of the Development Control Rules. It is his submission

that Suriya Sweets is not a cottage industry at all as it is a commercial concern. He submitted that if

Suriya Sweets is allowed to carry on its business which is of commercial in nature in a primary

residential use zone, no distinction will be maintained between primary residential use zone and

mixed residential use zone. He submitted that the location of Suriya Sweets is in violation of

Development Control Rules. He also referred to the dictionary meaning of the words, 'sweets and

savouries' and submitted that in common parlance, the items found in Annexure-V of Development

Control Rules under the caption, 'List of Cottage Industries' do not cover the manufacture of

savouries.

17. Mr. Nalini Chidambaram, learned senior counsel contended that Suriya Sweets is a cottage

industry within the meaning of Rule 7(a)(x) of Development Control Rules and it is also a petty shop

under Rule 7(a)(iii) and according to her, in common parlance, the expression, 'sweets' includes

savouries also and since it is a cottage industry run by using the electric power up to the extent of 5

H.P., the activity of manufacture and sale of sweets and savouries is permissible in the primary

residential use zone. Learned senior counsel also submitted that under the Development Rules when

the running of restaurant is permitted in primary residential use zone subject to the special sanction

of the authority, there can be no objection at all to permit the lesser activity of manufacture and sale

of sweets and savouries. Mr. V. Perumal, learned counsel appearing for CDMA submitted that the

location of Suriya Sweets in primary residential use zone is not permissible as there can be no

trading activity in primary residential use zone. Mr. Nalini Chidambaram, learned senior counsel also

referred to the permission and licence granted by the Corporation of Chennai and other authorities

and submitted that Suriya Sweets has been recognised as a cottage industry by the Regional Joint

Director of Industries and Commerce, Chennai. She submitted that the licence and permission

obtained by Suriya Sweets from the Corporation of Chennai and other authorities would also show

that all the statutory authorities have recognised that the location of Suriya Sweets is not in violation

of the Development Control Rules.

18. We hold that the Development Control Rules make a classification of uses which are permissible

in primary residential use zone, which are permissible in mixed residential zone, which are

permissible in commercial use zone, etc. In so far as primary residential use zone is concerned,

buildings or premises shall be normally permitted only for the purposes mentioned in Rule-7 along

with accessory uses and the uses are permitted with special sanction of the authority in respect of

those mentioned in Rule 7(b). We are unable to accept the submission of Mr. Nalini Chidambaram,

learned senior counsel that Suriya Sweets can be regarded as a petty shop. Petty Shop is one which

deals with items like, provisions, soft drinks, cigarettes, newspapers, tea stalls, etc. and Suriya

Sweets cannot be regarded as a petty shop. Moreover, the area of Suriya Sweets exceeds 20 sq. ft.

Which is a pre-requisite for a shop being regarded as a petty shop. Therefore, there is no difficulty in

holding that Rule 7(a)(iii) of the Development Control Rules does not apply to Suriya Sweets and it

cannot be regarded as a petty shop.

19. There is no difficulty in holding as it is not seriously disputed that confectionery sweets in Item

No. 6 of Annexure V of the D.C.R. Rules would include all sweets as item-4 of the list which deals

with bakery includes biscuits and cakes. If item-4 and item-6 are read together, item-6 which deals

with confectionery sweets would also include all sweets and it is not confined to normal

confectionary sweets as mentioned in the dictionary. Mr. P.S. Raman, learned senior counsel for the

company refers to the dictionary meaning of the word, 'sweets' and also 'savouries' as found in The

Concise Oxford Dictionary of Current English as well as The Pocket Oxford Dictionary of Current

English. We are, however, of the view that it is not necessary to refer to the meaning of the words,

sweets and savouries in the dictionary to find out the articles which can be regarded as sweets and

which can be regarded as savouries. We are unable to accept the submission of Mr. P.S. Raman,

learned senior counsel that in primary residential use zone, there can be no vending at all and his

submission that vending is limited to petty shops as found in Rule 7(a)(iii) is not acceptable. We are

of the view, under Rule 7(a)(x), cottage industry is permitted and we find that Annexure-V to the

Development Control Rules enumerates the list of cottage industries and for some of items therein

only manufacturing activity is permitted, like item No. 2 Appalam manufacture and item No. 13

Vermicelli manufacture and item No. 20 brush manufacture, but in respect of other items, there are

no restrictions at all. We are of the view that a cottage industry manufacturing confectionary sweets

should also be permitted to sell the same in the same area as the sale in such case can be regarded

as an accessory use to the main purpose of manufacture.

20. We also hold that Mr. Nalini Chidambaram, learned senior counsel is right in her submission that

the expression, 'Confectionary Sweets' in item No. 6 of Annexure V to the Development Control

Rules should not be confined to confectionary sweets, but it should be extended to savouries also.

Though savouries may be antithesis to sweets, we are of the view, the cottage industry

manufacturing confectionary sweets is also permitted to manufacture all its accessory products and

one such accessory products of confectionary sweets can be the manufacture of savouries. Hence,

we are unable to accept the submission of Mr. P.S. Raman, learned senior counsel appearing for the

petitioner company that the manufacture of confectionary sweets is only permitted in Rule 7(a) of

the Development Control Rules read with Item No. 6 of the Annexure-V thereto as we are of the

opinion that the manufacture of confectionary sweets would also encompass the manufacture of

savouries. Further, we find from a reading of the Development Control Rules and Annexure-V

thereto that there is no separate rule for the manufacture or the sale of savouries and the intention

of the legislature seems to be that when it used the expression, 'confectionary sweets', it would also

also include the manufacture and vending of savouries.

21. As regards the submission that Suriya Sweets is a cottage industry is concerned, there is no

definition of the term 'cottage industry' either in the Development Control Rules or in the Town and

Country Planning Act. In Webster's Third New International Dictionary - Vol.I, at page 516, the

expression, 'cottage industry' is defined as under:-

" an industry based upon the family unit as a labor force in which workers using their own

equipment at home process goods usu. belonging to a merchant employer and supplement their

income from small agricultural holdings".

The expression, 'cottage industry' used in the Development Control Rules has to be construed in the

context in which the said expression has been used and the related non-residential purposes which

are permitted in a primary residential area by the cottage industry. In Rule 7(a)(x) of the

Development Control Rules, there is no limit as to the amount of capital to be employed or the

turnover to regard an establishment as a cottage industry. Though the expression, 'cottage industry'

has not been defined in the Development Control Rules, it is an expression of normal use and its

meaning is also well defined. Normally, it includes the industry carried on by a family in dwelling

house and the list of industries specified in Annexure-V also gives a clue as to the types of activities

or the extent of the activity of an industry to regard an industry as a cottage industry. But, the

essential ingredient of a cottage industry is that the industry must be carried on by

workers/members of the family in the house, and if the industry is run on a commercial scale, then,

it would cease to be a cottage industry and would become a commercial concern. It would be

beneficial to refer to the case of tailoring, one of the items mentioned in Annexure-V. If tailoring

work is done by members of the family or even with the help of outside employees in the home,

then, it can be regarded as a cottage industry. However, if tailoring is done on commercial basis and

readymade garments are also manufactured in the same house by employing employees on a

commercial scale and garments manufactured therein are sold in the house like a commercial

establishment by opening a shop, then, the tailoring business carried on by the members of the

family would cease to be a cottage industry, and it would become a commercial establishment.

22. It is apparent that there may be certain common characteristics between cottage industry and

other industries and cottage industry can be run on the same line of commercial industry. What has

to be seen is the essential and basic characteristic of the industry. The observation of Lord Denning

in Griffiths v. J.P. Harrison (Watford) Ltd. (LVIII ITR 328 at 344 & 345) is relevant for the purpose of

this case which reads as under:-

"We can recognise a 'trade' when we see it, and also an 'adventure in the nature of trade'. But we

are hard pressed to define it. Donovan L.J. gave an apt illustration (40 ATC 132, 136). Is a monkey a

'human being' or an animal 'in the nature of a human being?' It has a head, a body, two legs and two

arms. What detail does it lack?"

Similarly, the cottage industry may partake some of the characteristics of commercial activity, but

that would not make the cottage industry as a commercial establishment as the main and essential

characteristic of a commercial establishment is to run business on profit and in a commercial

manner. We are of the view, applying the test, Suriya Sweets can be regarded as a commercial

activity. Suriya Sweets has also admitted that it is carrying on business on commercial basis by

manufacturing and selling sweets and savouries prepared and its only plea is that it is not causing

any pollution. In the affidavit filed in support of the writ petition filed by Suriya Sweets in W.P. No.

37462 of 2002, it is stated that due to the commercial nature of the business of selling the sweets

and eatables prepared, the petitioner concern has complied with all the formalities and procedures

and has obtained the necessary licences for running the concern. Since it is admitted by Suriya

Sweets that it is a commercial concern, it cannot be regarded as a cottage industry. Further, it is also

seen that the licence obtained by Suriya Sweets from the Corporation of Chennai is a trading licence,

and Suriya Sweets has also obtained a commercial sewerage pipe connection from CMWSSB and

parking licence from the police. In the application for consent submitted by Suriya Sweets to the

Pollution Control Board under 'Details of products manufactured', the main products are described

as sweets and savouries and the quantity of sweets manufactured is shown as 3.6 MT., equivalent to

3600 Kgs. and the quantity of savouries manufactured is indicated as 2.7 MT., equivalent to 2700

kgs. per month. We find, on the facts of the case, Suriya Sweets has employed nearly 30 persons and

the quantity of sweets and savouries manufactured would also show that they are being prepared

on commercial basis and sweets and savouries manufactured are also sold as an commercial

establishment and there is nothing to show that the business carried on by Suriya Sweets is a

cottage industry and no materials have also been placed before us to show that the activities are

carried on as a cottage industry.

23. As far as the certificate given by CMDA dated 12.7.2002 is concerned, we have seen that it is

based on misconception that confectionary is different from sweets. That is why it is certified that

Suriya Sweets can manufacture confectionaries and sweets. We have also gone through the records

and we find that the authority has not applied its mind to the question whether Suriya Sweets is a

cottage industry and the authority seems to have gone only by the expression used in the Annexure-

V to the Development Control Rules, and there is no indication to show that Suriya Sweets is really a

cottage industry. The other certificate issued by the Regional Joint Director of Industries and

Commerce, Chennai dated 19.7.2002 is also liable to be ignored as the said authority has not

considered the question whether Suriya Sweets is a cottage industry or not and no reasons are also

given in the said order. We are of the view that the industry set up in the residential use zone area

should first be the cottage industry and it should manufacture or sell anyone of the items mentioned

in Annexure-V to the Development Control Rules. We are of the view that both the conditions

should be satisfied for the permitted non-residential purposes in a residential area.

24. Moreover, under Rule 7(a)(x) of the Development Control Rules, the number of employees

should not exceed 25, but, as seen from the documents submitted by Suriya Sweets when it applied

for consent from the Pollution Control Board, the number of employees in Suriya Sweets exceeds 25.

We therefore hold that Suriya Sweets is not a cottage industry and the location of the commercial

establishment in the primary residential use zone is not permissible.

25. As far as the permission granted by the Corporation of Chennai is concerned, it was issued as a

licence for trading. We find the Chennai City Municipal Corporation Act, 1919 was enacted prior to

the Town and Country Planning Act, 1971 as well as Pollution Control Acts. The Chennai City

Municipal Corporation Act has not made any distinction between the primary residential use zone,

mixed residential use zone, commercial use zone and other zones and the fact that permission has

been obtained from the Chennai Corporation to trade in the area in question is not at all material as

Suriya Sweets, in its location, has violated the provisions of the Town and Country Planning Act

which is a later enactment. Hence, we direct the second respondent (CMDA) to take necessary

action under the Town and Country Planning Act,1971.

POLLUTION ASPECT:

26. It is seen that Suriya Sweets has not obtained necessary consent from the Pollution Control

Board and it has filed an application for consent under Section 21 of the Air Act. Section 21 of the Air

Act provides that subject to the provisions of the section, no person shall, without the previous

consent of the State Board, establish or operate any industrial plant in an air pollution control area.

Under Section 19 of the Air Act the area in which Suriya Sweets is operating is an air pollution

control area as the State Government has declared the entire area within the State of Tamil Nadu as

Air Pollution Control Area from 1.10.1983. Suriya Sweets has also applied for consent under Sections

25 and 26 of the Water Act which deal with 'the restrictions on new outlets' and 'new discharges and

also existing discharge of sewage or trade effluent'. The applications of Suriya Sweets are pending

and it has not obtained the necessary consent from the Pollution Control Board and pending

consideration of those applications, the order which is challenged in the writ petition filed by Suriya

Sweets has been passed on 9.9.2002 and the said order has been passed under Section 31-A of the

Air Act and 33A of the Water Act directing Suriya Sweets to relocate the unit from the present

primary residential area. During the pendency of the writ petition, on the basis of directions of this

Court, the Pollution Control Board has filed a report dated 23.6.2004 pointing out the steps to be

taken to mitigate the causes of pollution. The report refers to the inspection earlier made on

7.6.2004 and the inspection made on 23.6.2004 and also the reply by Suriya Sweets dated 14.6.2004

wherein Suriya Sweets has stated that the energy requirement for providing the suggested air

pollution control measures and the treatment system for the washing would exceed 5 H.P. and

CMDA would not permit the same as the norms prescribed by CMDA for primary residential zone is

only 5 HP. In our view, it is not necessary for us to go into the validity of the directions issued by the

Pollution Control Board dated 23.6.2004 and it is for the Pollution Control Board to decide whether

to grant necessary consent under Section 25 of the Water Act and Section 21 of the Air Act or not. It

is also made clear that since the Pollution Control Board has issued necessary directions under

Section 31A of the Air Act and 33A of the Water Act, it cannot be presumed that Suriya Sweets has

obtained a deemed consent under the proviso to sub-section (2) of Section 21 of the Air Act as well

as under sub-section (7) of Section 25 of the Water Act. The Pollution Control Board is directed to

consider the applications for consent and pass necessary orders within a period of one month from

the date of receipt of copy of this order. Though we are directing the Pollution Control Board to

consider the applications for consent filed by Suriya Sweets, the Pollution Control Board is also

directed to take note of the fact that Suriya Sweets is a commercial concern and is located in a

primary residential use zone in violation of the Development Control Rules. It is also directed that

the Pollution Control Board should take note of its directions issued earlier and the reply submitted

by Suriya Sweets. It is needless to state that the Pollution Control Board will act in accordance with

law and will comply with the principles of natural justice.

LOCUS STANDI:

27. The submission raised by Mr. Nalini Chidambaram, learned senior counsel appearing for Suriya

Sweets is that the company, petitioner in W.P. No. 35483 of 2002 has no locus standi. We make it

clear that the writ petition filed by the company has not been filed as a public interest litigation, but

the writ petition has been filed by a person who is said to have been affected by the location of the

Suriya Sweets. Further, Suriya Sweets has also challenged the directions issued by the Pollution

Control Board. Both the writ petitions were heard together in detail and in view of the same, the

question of locus standi recedes to the back ground as we have considered the issues that arise in

both the writ petitions.

28. Mr. Nalini Chidambaram, learned senior counsel also submitted that in Rama Muthuramalingam

v. The Deputy Superintendent of Police, a Division Bench of this Court, in which one of us was party,

held that it is not proper for the judiciary to encroach upon the domain of the executive or

otherwise, the delicate balance in the Constitution would be upset and there would be a reaction

and the administrative authorities have expertise in their respective fields and the courts should not

ordinarily interfere in such matters and the judiciary must exercise self-restraint and not to interfere

with the functions of the executive. However, we are of the view, this Court has already admitted

both the writ petitions and heard the matter in full regarding location of Suriya Sweets in the

primary residential use zone and on the question whether the unit is required to be relocated.

Hence, the decision of this Court in Rama Muthuramalingam case, cited supra, does not aid the

petitioner in W.P. No. 37462 of 2002.

29. Accordingly, both the writ petitions are disposed of with the above directions. No costs.

Connected WP.M. Ps. are closed.


Criminal Appeal No. 485 of 1988

Appellants: The State of Maharashtra Vs. Respondent: Sham Namdev Sonawane:Decided On:

10.01.2005

Hon'ble Judges:

V.M. Kanade, J.

Counsels:

For Appellant/Petitioner/Plaintiff: D.P. Adsule, A.P.P.

For Respondents/Defendant: None

Subject: Criminal


Catch Words:

Documentary Evidence, Prevention of Corruption, Reasonable Doubt, Sanction to Prosecute

Acts/Rules/Orders:

Indian Penal Code - Section 161; Prevention of Corruption Act - Section 5(1) and 5(2); Forest Act -

Section 41A

Disposition:

Appeal dismissed

JUDGMENT

V.M. Kanade, J.

1. The State has filed this appeal against the judgment and order passed by the Special Judge, Thane,

in Special Case No. 4 of 1984. By the said judgment and order dated 28.1.1988, the Special Judge,

Thane, acquitted the accused of the offences punishable under section 161 of the Indian Penal Code

read with section 5(1)(d) r/w section 5(2) of the Prevention of Corruption Act.

2. The prosecution case in brief is that Shri Sham Namdeo Sonawane was working as Forester in

Dugar Forest Round in Bhiwandi range. He was residing in the official quarters given to him at village

Waret. According to the prosecution, Vinayak Motiram Kadam was working as a Primary Teacher at

village Ghotgaon. His wife was also working as a Primary Teacher in the same village. He purchased a

plot of land on 3.1.1983 and intended to construct a house on the said plot. He also purchased a

cattle shed from one Ladyaka Thakare - P.W. 4, which was situated at a distance of 1 km. from his

house in the house of Kadam. P.W. 2 - Kadam made an application for demolishing cattle shed on

10.3.1983 to the Range Forest Officer, Bhiwandi. In the said application he made a request to the

Range Forest Officer to make a panchanama in respect of valuation of the cattle shed. Before any

order was passed on the said application, P.W. 2 - Kadam demolished the cattle shed and

transported its timber to village Ghotgaon in two bullock carts and dumped the pieces of the timber

in the nearing house. Thereafter, he made enquiry with the Range Forest Officer and on 14.3.1983

he was informed that his application had been allowed. He accordingly met the accused and

requested him to make panchanama of the timber of the cattle shed. Prosecution case is that the

accused demanded Rs.1,000/ - for making panchanama as it was demolished without any permission

or intimation to the Forest Office. Accordingly, on the next day, i.e. 15.3.1983 he went to the house

of P.W. 2 - Kadam along with other forest officers and had lunch at the place of P.W. 2 - Kadam.

After accused demanded Rs.1,000/ - from P.W. 2, P.W. 2 called his landlord Kisan Patil. Thereafter

P.W. 2 - Kadam brought the amount of Rs. 1,000/ - and handed over the same to Kisan Patil, who

counted it and returned the amount to Kadam, who, thereafter paid the same to the accused.

Prosecution case is that the accused informed P.W. 2 - Kadam that he would issue receipt for the

said payment later on.

3. According to the prosecution, one of the forest guards - Gavhane asked the accused to issue

receipt for payment of Rs. 1,000/ - made by Kadam. The accused refused to do so and there was

quarrel between the two. Thereafter complaint was filed by P.W. 9 - Gavhane to the District Forest

Officer who directed that enquiry be made in the allegation made against the accused. Accordingly,

statements were recorded and complaint was filed against the accused. Ultimately, permission of

the Judicial Magistrate was obtained to investigate the complaint and sanction to prosecute was also

granted by P.W. 8 - Chief Conservator of Forest and charge sheet was thereafter filed against the

accused.

4. The trial Court after appreciating the evidence adduced by the prosecution came to the

conclusion that the prosecution has not proved its case beyond reasonable doubt and accordingly

acquitted the accused of the offences with which he was charged.

5. Shri Adsule, learned A.P.P. appearing on behalf of the State took me through the oral and

documentary evidence on record and also judgment and order of the trial Court. He submitted that

the trial Court has erred in coming to the conclusion that the prosecution has failed to establish the

offence against the accused. He further submitted that demand and acceptance of bribe was proved

by the evidence of P.W. - Kadam, P.W. 7 - Gaikwad and P.W. 9 - Gavhane. He submitted that the

prosecution has further proved payment of money to the accused through evidence of P.W. 5 -

Keshav Bapu Patil and P.W. 6 - Madhukar Patil. He submitted that the trial Court has erred in coming

to the conclusion that evidence of these witnesses was not acceptable as prosecution case was

improbable.

6. The prosecution has examined P.W. 2 - Kadam, who stated that he had purchased the property at

village Ghotgaon and that he intended to construct his residential house on the said plot of land. He

also stated that he had purchased the cattle shed and intended to use its timber for construction of

his house. From his evidence it can be seen that he had demolished the cattle shed before necessary

permission was granted by the Forest office. Under the provisions of the Forest Act, timber cannot

be transported from one place to another without obtaining permission from the forest office. P.W.

2 Kadam had applied for permission to carry timber on 10.3.1983. However, before such permission

was granted, on the very next day, on 11.3.1983 he demolished the cattle shed and transported its

timber to Ghotgaon in two bullock carts. Thus, he has committed offence under section 41 - A of the

Forest Act. The accused took inspection of the premises. He questioned P.W. 2 as to why cattle shed

was demolished before permission was obtained and asked him to pay a fine of Rs.1,000/ - . P.W. 2

has stated in his evidence that when payment of Rs. 1,000/ - was made by the accused other Forest

Guards viz. P.W. 7 - Gaikwad and P.W. 9 - Gavhane told the accused that P.W. 2 - Kadam was their

man and that accused should do his work after accepting the said amount towards expenses. The

prosecution has examined P.W. 7 - Gaikwad and P.W. 9 - Gavhane to corroborate the statement of

P.W. 2 - Kadam. However, none of these witnesses have stated that the accused had demanded

Rs.1,000/ - as bribe. On the contrary, these witnesses have stated that the accused after accepting

the amount of Rs.1,000/ - had informed P.W. 2 - Kadam that he would get receipt or the said

amount later on.

7. Apart from this, it has come on record that on the very next day P.W. 9 - Gavhane had demanded

receipt for the payment of Rs. 1,000/ - paid by Kadam when there was altercation between the two

and a complaint was lodged by accused against Gavhane and cross complaint was lodged by

Gavhane against the accused. Both P.W. 7 and P.W. 9 also have not supported the statement of P.W.

2 - Kadam regarding certain material particulars. P.W. 7 has not stated that after amount of

Rs.1,000/ - was demanded by the accused he told him that P.W. 2 was their man and that accused

should do his work. Thus, P.W. 7 and P.W. 9 have tried to protect themselves regarding the

allegations made by P.W. 2. Moreover, P.W. 7 and P.W. 9 appear to be in league with P.W. 2. Thus, it

is difficult to accept the testimony of P.W. 2, P W.7 and P.W. 9.

8. The prosecution also appears to have made an attempt to create evidence regarding procurement

of Rs.1,000/ - which were to be paid to the accused. According to P.W. 2 - Kadam, the said amount

was sent by his wife Indumati through P.W. 6 - Madhukar Patil. It has come on record that the

accused had already Rs.3500/ - in his possession in his house. Indumati had not withdrawn this

amount of Rs..1,000/ - from the bank. There was no occasion for Indumati to have carried the said

amount and then to have sent said amount with a young boy of 12 years age. She would have very

well handed over the said amount to her husband before he left the house. As it is, there was no

necessity to carry this amount as amount of Rs.3500/ - was already in the house. This evidence

indicates that an attempt is made to create evidence in order to prove that the said amount was

paid to the accused. Further P.W. 5 - Keshav Patil also appears to be a got up witness. P.W. 5 is the

landlord of P.W. 2 - Kadam. P.W. 2 in his evidence has stated that before handing over the amount

to the accused he called P.W. 5 - Keshav Patil and handed over money to him, who counted the

same and handed it over to P.W. 2, who then handed over the same to the accused. It is not possible

to accept the version of P.W. 2 as ordinarily, person who accepts bribe would not do so in the

presence of any witnesses. Therefore, P.W. 5 appears to be a got up witness.

9. Another fact which needs to be considered is that the accused had accepted the said amount of

Rs.1,000/ - towards fine. While accepting the said amount he has not stated that the said amount

was accepted as bribe. Thus demand and acceptance have not been proved by the prosecution.

10. The trial Court has passed a reasoned order and has considered the evidence of all the witnesses

and has rightly come to the conclusion that the prosecution evidence suffers from basic infirmities

and has, therefore, come to the conclusion that in view of the broad improbabilities, the prosecution

case could not be accepted. The trial Court, in my view, has correctly appreciated evidence and I

concur with the finding recorded by the trial Court. There is thus, no merits in the submissions made

by the learned A.P.P. The order passed by the Special Judge, Thane, is accordingly confirmed. Appeal

is dismissed.

Equivalent Citation: AIR2005Ker177


W.P. (C) No. 1062 of 2005 (B)

Appellants: K.V. Pavithran Vs. Respondent: The District Superintendent of Police and Ors.: Decided

On: 17.01.2005

Hon'ble Judges:

K.M. Joseph, J.

Counsels:

For Appellant/Petitioner/Plaintiff: C.P. Peethambaran and R. Dyana, Advs.

For Respondents/Defendant: George Mecheril, Govt. Pleader


Subject: Civil

Catch Words:

Government Pleader, Noise Pollution, Statutory Authority

Acts/Rules/Orders:

Constitution of India - Article 226; Noise Pollution (Regulation and Control) Rules, 2000 - Rules 5, 5(1)

and 5(3)

Cases Referred:

Environmental and Sound Pollution v. Union of India, 2004(1) Ker LT 134

ORDER

K.M. Joseph, J.

1. The prayer in the writ petition is to quash part of the order in Ext. P2 rejecting the request for use

of loudspeaker from 6 p.m. on 29-1-2005 to 6 a.m. on 1-2-2005 on the occasion of the annual

Theyyam Festival. The further prayer is for directing the second respondent to grant permission for

using loudspeakers from 6 p.m. on 29-1-2005 to 6 a.m. of 1-2-2005.

2. The complaint of the petitioner is that Theyyam is performed in a remote village area and all the

people who are the devotees without any objection wanted the loudspeaker to be used for

conveniently enjoying the cultural programmes apart from hearing the Thottampattu and Drum

beating. It is stated that this year programmes are consisting of Mimics, Ganamela and Opera of

Adhimuthachan to be performed by Thiruvithankoor Nadakavethy, Kottayam. Ext. PI is the

programme notice. Learned counsel for the petitioner submits that Ext. P2 application was made for

permission only for three days to the second respondent through the third respondent and the third

respondent rejected the application. Learned counsel for the petitioner relies on the decision

reported in Forum for the Prevention of Environmental and Sound Pollution v. Union of India

(2004(1) Ker LT 134) to contend that the Government has ample power to grant permit for using

loudspeaker during night hours for a limited period and purposes. Learned counsel for the petitioner

would further contend that the order is non-speaking and he would also rely on Rule 5(1) and (3) of

the Noise Pollution (Regulation and Control) Rules, 2000. Learned counsel contends that the

Government has power under sub-rule (3) to permit the use of loud-speakers in the night hours on

or during any cultural or religious occasion of a limited duration not exceeding 15 days in all during a

calender year. A perusal of Rule 5 of the Rules will show that the contention of the petitioner cannot

be accepted. Sub-rule (1) of Rule 5 makes it clear that the loudspeaker or a public address system

shall not be used except after obtaining written permission from the authority. Sub-rule (2) casts an

embargo against the use of loudspeaker during night, which is shown in the statute itself as 10 p.m.

to 6 a.m. except in the cases of closed premises for communication. Examples are given, namely,

auditorium, conference rooms, community halls and banquet halls. Sub-rule (3). no doubt acts as a

proviso to sub-rule (2). This is for the reason that despite the embargo against the use of

loudspeaker during night, that is, between 10 p.m. and 6 a.m., power is vested with the State

Government to permit ' use of loudspeakers during night hours which is confined to 10 p.m. to 12

midnight on or during any cultural or religious occasion of a limited duration not exceeding fifteen

days. The contention of the learned counsel for the petitioner would appear to be that since the

word 'or' is used in sub-rule (3), it means that night hours as defined as 10 p.m. to 12 midnight need

not necessarily limit the power in respect of a cultural or a religious occasion. This argument has only

to be rejected, for, it is clear that the power to relax the rigour of sub-rule (2) is available to the State

Government only in respect of a cultural or religious occasion of a limited duration not exceeding 15

days and it is in respect of such a cultural or religious occasion that Government has power to relax

the limitation embedded in sub-rule (2) against the use of loudspeaker or public address system

during night. In other words, the relaxation of the embargo in sub-rule (2) is limited to 10 p.m. and

12 midnight and that too for a period of 15 days in a calender year. To put it differently, the right to

use loudspeaker or a public address .system cannot be given under the Rules for use beyond 12' O

clock in the night even on a religious or cultural occasion. If that be so, the contention of the

petitioner that the petitioner is entitled to use the loudspeaker beyond 12'0 clock in the night has

necessarily to be rejected. Learned counsel further contended that notwithstanding the Rules, this

Court has power under Article 226 to permit use of loudspeakers having regard to all facts and

particularly since no injury is caused to anyone and all persons in the locality are looking forward to

the items which are to be performed after 12'O clock and nobody has any objection. I am of the view

that such a contention will be in the teeth of a statutory prohibition. It is trite law that powers under

Article 226 of the Constitution be they extraordinary are not meant to overwhelm the mandate of

the statute. On the other hand the power under Article 226 of the Constitution, wide as it may be, it

cannot be used to issue a direction to a statutory authority to act against the statute. Learned

Government Pleader on instructions submits that Government of Kerala has issued G.O. (Ms) No.

11/2005/ Home, dated 7-1-2005 wherein the Government has been pleased to permit the use of

loudspeaker till 12'O clock in the night. The judgment of the Division Bench reported in Forum for

the Prevention of Environmental and Sound Pollution's case also does not support the contention of

the petitioner that permission can be granted to use loudspeakers beyond 12'O clock in the night. In

view of this order even though the request of the petitioner for use of the loudspeaker beyond 12'0

clock in the night cannot be granted, at the same time the petitioner can be granted permission till

12'0 clock.

3. Learned counsel for the petitioner submits that after the filing of the writ petition, the petitioner

has filed an application and a challan is also received.

Accordingly there will be a direction to the second respondent to consider and pass appropriate

orders on the application filed by the petitioner in accordance with law subject to the observations

made in this judgment and in the light of the Government Order, a copy of which shall be-produced

by the petitioner, within a period of two days from the date of receipt of a copy of this judgment.

Writ Petition if disposed of as above.

Equivalent Citation: 2005CriLJ2405, 2005(2)KLT456


C.R.P. No. 616 of 2003

Appellants: Joy Joseph Vs. Respondent: D.F.O.: Decided On: 25.01.2005

Hon'ble Judges:

K.S. Radhakrishnan, J.

Counsels:

For Appellant/Petitioner/Plaintiff: C.C. Thomas, Adv.

For Respondents/Defendant: Suseela Bhatt, Government Pleader


Subject: Criminal

Catch Words:

Legal Right, Reason to Believe, Seizure of Property

Acts/Rules/Orders:

Kerala Forest Act, 1961 - Sections 53, 55, 61A and 61B; Forest Act, 1927 - Sections 2(3), 52, 52(1),

52(3) and 68; Constitution of India - Article 226

Cases Referred:

Pushpan v. State, 1984 KLT 1021; State of Kerala v. Sukumara Panicker, 1987 (2) KLT 341; State of

West Bengal v. Gopal Sarkar, (2002) 1 SCC 495; State of Jharkhand v. Govind Singh, 2005 (1) KLT 34

(SC), 2004 (8) Supreme 678

Disposition:

Petition dismissed

ORDER


1. Revision petitioner is the registered owner of a mini lorry bearing registration No. KL-7/Q-8946.

Lorry was seized by the Sub Inspector of Police, Erattupetta while it was transporting timber logs

without any valid documents and handed over to the Forest Ranger Officer, Erumely for further

action as per Forest Act. Articles were produced before the Authorised Officer, Divisional Forest

Officer, Kottayam on 23.8.1999 for initiating proceedings under Section 61A of the Kerala Forest Act,

1961. During the course of investigation revision petitioner filed O.P.22578/99 for getting the vehicle

released and this Court vide judgment dated 7.9.1999 directed release of the vehicle on furnishing

sufficient security. Vehicle was released on the original title deed No. 431 relating to 4 acres of land

owned by the petitioner and encumbrance certificate issued by the Sub Register, Rajakumari and

after executing a bond.

2. Enquiry revealed that the timber logs transported were illegally collected by telling one big green

venteak tree which stood in the coffee plantation, within the Cardamom Hill Reserve which is a

notified Reserve Forest. A stump mahazar was prepared by the Forest Officer on 25.8.1999 for the

illicit felling and removal of the timber. The case was transferred from Erumeli Range to Kumily

Forest Range by the Divisional Forest Officer, Kottayam as per Order No. A2-5356/99 dated

21.2.2000 and registered as OR.73/99 in Kumily Forest Range, the Forest Range Officer, Kumily

investigated the case and submitted the investigation Report vide letter No. OR.73/99 dated

27.1.2001. Investigating Officer recommended confiscation of mini lorry No. KL-7/Q 8946 along with

80 pieces of timber logs to Government under Section 61 A of Kerala Forest Act, 1961.

3. The D.F.O. then issued a show cause notice dt. 19.2.2001 to the registered owner and others

explaining the grounds leading to the confiscation proceedings. Opportunity of hearing was also

afforded to the registered owner and others. Notice were returned unclaimed. The D.F.O.

considering all aspects of the matter passed an order dt. 27.3.2001 confiscating the vehicle and the

materials transported as per Section 61 A of the Kerala Forest Act, 1961.

4. Aggrieved by the said order registered owner took up the matter before the District Judge,

Kottayam. Learned District Judge found no illegality in the confiscation proceedings and upheld the

order. The fact that lorry has been used to commit the offence cannot be disputed. It is the duty of

the registered owner and others to produce relevant documents to show that the goods are

transported with valid permit. They could not prove the same. On the other hand, the pass produced

No. 22-1998-99 was issued before 31.3.1999 and the pass was valid only for a period of four months.

Seizure of the vehicle and the contraband articles in this case was on 22.8.1999. Pass did not cover

goods transported. So found by the Forest Officers as well as by the District Judge. I therefore find

no illegality in the order of the Divisional Forest Officer which was confirmed by the District Judge.

5. Counsel appearing for the petitioner submitted that in any view of the matter there is no

justification in confiscating the vehicle since there is no comparison between the value of the vehicle

and the timber seized. Such a ground was taken by the petitioner in ground D of the revision petition

and tried to apply the decision in Pushpan v. State, 1984 KLT 1021. The fact that such a decision was

overruled has not been stated in the Revision Petition. In ground E of the Revision Petition,

petitioner has also referred to the decision in W.A.No. 2521 of 1998. It is also stated that the value

of the timber is Rs. 4,000/- and the value of the vehicle assessed by the Assistant Executive Engineer

is Rs. 1,59,931/-.

6. The Divisional Forest Officer has filed a counter affidavit wherein it has been stated that the value

of the timber seized is Rs. 20,000/-. Further it is also stated that the decision relied on by the

petitioner, viz., 1984 KLT 1021 has already been overruled in State of Kerala v. Sukumara Panicker,

1987 (2) KLT 341. Petitioner should not have urged the contention on the basis of an overruled

decision. Further petitioner has stated that the value of the timber is only Rs .4,000/-, but the

affidavit filed by the Forest Department would show that the value of the timber is Rs. 20,000/-.

7. The Apex Court in State of West Bengal v. Gopal Sarkar, (2002) 1 SCC 495, has held that exercise of

the power of confiscation is independent of any proceeding of prosecution initiated in respect of

forest offence committed. I am of the view of the view of the decision of the Full Bench of this Court

in Sukumara Panicker's case, supra, judgment in W.A.No. 2521 of 1998 cannot be applied to the

facts of this case. I may also refer to the decision of the Apex Court in State of Jharkhand v. Govind

Singh, 2005 (1) KLT 34 (SC) = 2004 (8) Supreme 678, wherein the Apex Court has dealt with in detail

the scope of Section 52(3) of the Indian Forest Act, 1927. That was a case where truck was found

loaded with 11.8 tonnes of coal. Confiscation proceeding No. 3/1997 was instituted and show cause

notice was issued. After considering the reply submitted by the respondent Divisional Forest Officer

ordered confiscation of the truck. Appeal was preferred against the said order before the Deputy

Commissioner which was dismissed. Matter was taken up in revision which was also dismissed.

Aggrieved by the same Writ Petition was filed under Article 226 of the Constitution. Contention was

raised by the respondent that there was no prohibition in directing release of the vehicle on

payment of fine in lieu of confiscation. It was noted that the value of the coal was not established

and considering the value of coal which was being transported it would be inequitable to direct

confiscation. High Court therefore held that to meet the ends of justice the power to impose fine in

lieu of confiscation can be read into under Section 52(3) of the Act. Accordingly fine of Rs. 50,000/-

was imposed and the seizing authority was directed to release the vehicle on payment thereof. Apex

Court interfered with the order of the High Court and decided the scope of Section 52 as well as

Section 68 of the Act and held as follows:-

"Therefore, on a combined reading of Section 52 and Section 68 of the Act as amended by the Bihar

Act, the vehicle as liable for confiscations may be released on payment of the value of the vehicle

and not otherwise. This is certainly a discretionary power, exercise of which would depend upon by

gravity of the offence. The officer is empowered to release the vehicle on the payment of the value

thereof as compensation. This discretion has to be judicially exercised, Section 68 of the Act deals

with power to compound offences. It goes without saying that when the discretionary power is

conferred, the same has to be exercised in a judicial manner after recording of reasons by the

concerned officer as to why the compounding was necessary to be done. In the instant case, learned

Single Judge did not refer to the power available under Section 68 of the Act and on the contrary,

introduced the concept of reading into Section 52 of the Act, a power to levy fine in lieu of

confiscation which is impermissible. In the impugned judgment nowhere the value of the truck

which as liable for confiscation was indicated. It appears that the first appellate court and the

revisional authority did not consider it to be a fit case where the vehicle was to be released and were

of the considered view that confiscation was warranted. They took specific note of the fact that fake

and fabricated documents were produced to justify possession of the seized articles. In any event

the respondent had not made any prayer for compounding in terms of Section 68 of the Act.

Confiscation in terms of Sub-section (3) of Section 52 of the Act is the immediate statutory action

which provides that when forest offence as defined in Section 2(3) of the Act is believed to have

been committed in respect of the seized vehicle, the authorised officer may confiscate the forest

produce and the vehicle involved in the transportation of the forest produce. Foundation for action

in terms of Section 52(3) of the Act is the belief entertained by the concerned officer that forest

offence has been committed. It is not the value of the forest produce which is irrelevant, but the

value of the article liable for confiscation. In the instant case it is the truck carrying the forest

produce".

I may examine whether any power is conferred on the forest officials to release the vehicles on

payment of fine. Section 52 of the Act deals with seizure of property liable to confiscation, which

reads as follows:

52. Seizure of property liable to confiscation.-- (1) When there is reason to believe that a forest

offence has been committed in respect of any forest produce, such timber or produce, together with

all tools, ropes, chains, boats, vehicles and cattle used in committing any such offence, may be

seized by any Forest Officer or Police Officer.

Explanation: The term "boats" and "vehicles" in this section (Section 53, Section 55, Section 61A and

Section 61B) shall include all the articles and machinery kept in it whether fixed to the same or not.

(2) Every officer seizing any property under Sub-section (1) shall place on such property or the

receptacle, if any, in which, it is contained a mark indicating that the same has been so seized and

shall, as soon as may be make a report of such seizure to the Magistrate having jurisdiction to try the

offence on account of which the seizure has been made;

Provided that, when the timber or forest produce with respect to which such offence is believed to

have been committed is the property of Government, and the offender is unknown, it shall be

sufficient if the Forest Officer makes, as soon as may be, a report of the circumstances to his

superior".

Section 53 states that any Forest Officer of a rank not inferior to that of a Ranger, who or whose

subordinate has seized any tools, boats, vehicles or cattle under the provisions of Section 52, may

release the same on the execution by the owner thereof a bond for the production of the property

so released, if an when so required before the Magistrate having jurisdiction to try the offence on

account of which the seizure has been made. Section 61 -A empowers the officers to confiscate

vehicles. This provision is extracted below for easy reference.

61A. Confiscation by Forest Officers in certain cases: Notwithstanding anything contained in the

foregoing provisions of this Chapter, where a forest of fence is believed to have been committed in

respect of timber, charcoal, firewood or ivory which is the property of the Government, the officer

seizing the property under Sub-section (1) of Section 52 shall, without any unreasonable delay,

produce it, together with all tools, ropes, chains, boats, vehicles and cattle used in committing such

offence, before an officer authorised by the Government in this behalf by notification in the Gazette,

not being below the rank of an Assistant Conservator of Forests (hereinafter referred to as the

authorised officer).

(2) Where an authorised officer seizes under Sub-section (1) of Section 52 any timber, charcoal,

firewood or ivory which is the property of the Government, or where any such property is produced

before an authorised officer under Sub-section (1) of this section and he is satisfied that a forest

offence has been committed in respect of such property, such authorised officer may, whether or

not a prosecution is instituted for the commission of such forest offence, order confiscation of the

property so seized together with all tools, ropes, chains, boats, vehicles and cattle used in

committing such offence.

Section 68 confers power to compound offences, which is extracted below:

68. Power to compound offence: (1) Any Forest Officer not below the rank of an Assistant

Conservator of Forests may accept from any person, reasonably suspected of having committed any

forest offence other than an offence under Section 62 or Section 65 a sum of money by way of

compensation for the offence which may have been committed and where any property has been

seized as liable to confiscation, may release the same on payment of the value thereof as estimated

by such officer or confiscate such property to the Government.

On the payment of such sum of money or such value of both, as the case may be, to such officer, the

accused person, if in custody, shall be discharged, the property seized shall be released and no

further proceedings shall be taken against such person or property.

Section 61A(2) states that where an Authorised Officer seizes the property of the Government, and if

the property is produced before the Authorised Officer if he is satisfied that a forest offence has

been committed in respect of such property, he may order confiscation of the property so seized

together with all tools. No power has been conferred on the Forest Officer to release the vehicle in

lieu of confiscation. On a bare reading of Section 52, 61A and 68 would show that the vehicle liable

for confiscation may be released on payment of the value of the vehicle and not otherwise. Value of

the forest produce confiscated is irrelevant and the accused has no legal right to insist that the

vehicle be released on payment of fine in lieu of confiscation. In the instant case, the value of the

timber seized was Rs. 20,000/- and the value of the vehicle was Rs. 1,59,931/-. In view of the

decision of the Full Bench in 1987 (2) KLT 341 read with the decision of the Apex Court reported in

2005 (1) KLT 34 (SC) the request of the petitioner to release of the lorry on payment of fine in lieu of

confiscation cannot be granted.

8. In the light of the above mentioned principle laid down in the decision aforesaid, I find no illegality

in the order passed by the authorities below confiscating the timber and the vehicle. Petition

therefore lacks merits and it is accordingly dismissed.

Equivalent Citation: RLW2005(2)Raj1336

IN THE HIGH COURT OF RAJASTHAN

D.B. Civil Special Appeal No. 136 of 1997

Appellants: State of Rajasthan and Ors. Vs. Respondent: Nathu Lal:Decided On: 03.02.2005

Hon'ble Judges:

Rajesh Balia and Dinesh Maheshwari, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: N.M. Lodha, Addl. Adv. General

For Respondents/Defendant: K.N. Joshi, Adv.

Subject: Commercial


Catch Words:

Agreement, Alternative Remedy, Auction, Breach of Condition, Breach of Contract, Communication,

Compensation, Concealment, Condition, Consideration, Counter Offer, Covenant, Damage, Deposit,

Earnest Money, Essential Fact, Evidence, Illegal, Interpretation, Limitation, Liquidated Damages,

Material Fact, Part of Consideration, Prima Facie, Reasonable Compensation, Unconscionable

Acts/Rules/Orders:

Rajasthan Forest Act, 1953 - Section 85; Public Demands Recovery Act; Land Revenue Act - Section

229; Contract Act, 1872 - Section 74

Cases Referred:

Badhava Singh and Anr. v. Charan Singh and Anr., AIR 1955 Rajasthan 87

Disposition:

Appeal dismissed

JUDGMENT

Dinesh Maheshwari, J.

1. The appellants State of Rajasthan and others have submitted this appeal against the order dated

28.11.1995 passed in Writ Petition No. 86/1986 whereby the learned Single Judge allowed the writ

petition, quashed the demand notice-Annex. 13 and directed the State Government to deposit the

amount of Rs. 29,627/- received from the petitioner in the welfare fund at the disposal of the Chief

Minister.

2. The matter pertains to the attempted recovery towards alleged breach of contract by the writ

petitioner-Nathulal. Brief facts leading to the present appeal are that the appellants issued a notice

inviting offers for the contract of collection of Tendu leaves in different forest areas. The invitation

was issued on 30.1.1973 (Annex.R/1) fixing the date of auction as 22.2.1973. It is not in dispute that

the petitioner was one of the bidders for the area of erstwhile Bijoliya Jagir falling in Mandalgarh

range of Forest Division, Chittorgarh for the season of 1973. The petitioner gave highest bid for the

said area for Rs. 51,100/-. The bid amount was recoverable in four equal installments of Rs. 12,775/-

each. It is also not in dispute that on the very day of the auction i.e., 22.2.1973 itself, the petitioner

deposited a sum of Rs. 29,627/- comprising of Rs. 22,550/- towards two installments, Rs. 500/- as

earnest money and Rs. 3577/- towards sales tax. An agreement was also executed by the petitioner

(Annex.1) on 22.2.1973 confirming the terms and conditions of the contract which provide inter alia

that the possession of the area contracted would be delivered to the contractor by the Officer of the

Department upon acceptance of the contract. Laying down different conditions to be followed by

the contractor while executing the contract, it was also provided that the contractor would be

required to make payment by way of four installments. The terms and conditions also provide that if

there be any dues remaining against the contractor, then the government would be entitled to

recover such amount in accordance with Section 85 of the Rajasthan Forest Act, 1953. It was also

provided that for interpretation of any of the conditions of the agreement or for determination of

the questions which may be related to the agreement directly or indirectly or in case of any dispute

or difference, then every such question would be placed before the Chief Conservator of Forest and

his decision would be final and binding. It was also provided that in case of violation of any of the

terms of the agreement, the contract could be annulled and if the contract be put to fresh auction

and bid received be falling short, then the difference could be recovered from the contractor as

arrears of land revenue.

3. The petitioner alleged that despite conclusion of the auction on 22.2.1973, no acceptance of the

bid was received by him till 20.5.1973 and possession was also not delivered. The petitioner alleged

that the contract in question was a seasonal business and the collection of Tendu leaves start from

1st March every year and the Tendu leaves are to be collected within a month or two and by the

month of May, the entire leaves are wasted. According to the petitioner, when he did not receive

any information by 20.5.1973 he sent a communication on 21.5.1973 addressed to all concerned

pointing out that the season was already over and as such he was not prepared to do anything now

in pursuance to the contract and his deposit may be refunded. The petitioner has alleged that after

receipt of his such letter, an ante-dated letter (Annex.6) was sent to him by the department which

was of course dated 21.5.1973 but was dispatched only on 23.5.1973 after receipt of his letter and in

support of such averments, the original envelope has been produced as Annex.7. The petitioner

alleged that despite no contract having been given to him, the order was passed by the non-

petitioner No. 3 Divisional Forest Officer forfeiting the deposit and demanding the remaining

amount and against such demand, he appealed to the non-petitioner No. 2 Chief Conservator of

Forest on 6.4.1976 but the non-petitioner No. 2 without applying mind and without considering the

record rejected the appeal by his order dated 9.12.1985 (Annex.12). The petitioner alleged that after

rejection of his appeal, the non-petitioners threatened recovery under Public Demands Recovery Act

(PDR Act). The petitioner challenged the notice dated 26.12.1985 (Annex. 13) and the previous

orders Annex.8, 9 and 12 by way of writ petition.

4. The non-petitioners-appellants in their reply admitted the fact of bid of Rs. 51,100/- by the

petitioner on 22.2.1973, of his signing the agreement on 22.2.1973, and so also his depositing the

amount of Rs. 29,627/- on that very day. However, it was alleged that the State Government

approved the bid on 3.4.1973 and sanction of the contract was conveyed to the petitioner by the

Divisional Forest Officer, Chittorgarh by his notice dated 5.4.1973 (Annex.R/3). According to the non-

petitioners, the possession was to be delivered after sanction was received and when sanction was

conveyed to the petitioner on 5.4.1973, it was his duty to have commenced the work and to have

taken possession form the Range Officer. The non-petitioners denied the allegation of the petitioner

that he did not receive any information upto 20.5.1973 reiterating that sanction was conveyed to

him by the letter dated 5.4.1973 and subsequently also, the Range Forest Officer informed the

petitioner by his letter dated 6.5.1973 that the petitioner had not taken possession yet. The Division

Forest Officer allegedly issued a notice on 16.5.1973 asking as to why action as per Clause 8 of the

agreement be not taken and it was further mentioned in the notice that if possession would not be

taken within three days, the non-petitioners would adopt proceedings for cancelling and re-

auctioning of the contract.

5. The non-petitioners further submitted in their reply that contract for collection of Tendu leaves is

given only for a period of about one year and after acceptance of the auction bid, the petitioner was

to take possession within a period of fifteen days and the contract was to last till 30.6.1974 with the

condition that the contractor was allowed to remove material upto 15.7.1974. It has been submitted

that Tendu leaves are collected in the month of May and collection continues till Mansoon arrives

which may be end of June and July. The non-petitioners denied ante-dating letter sent by them

dated 21.5.1973 and further pointed out that upon receipt of the petitioner's letter dated 21.5.1973,

yet another letter was sent on 7.6.1973 by registered post which was received by the petitioner. The

petitioner submitted appeal to the Chief Conservator but the same was dismissed on 9.12.1985. The

area was put to re-auction but nobody came forward to extend the bid and therefore the petitioner

was liable for remaining amount of the contract. An objection has also been taken in the reply that

when the petitioner was issued notice by the Tehsildar under the PDR Act, the petitioner filed an

application before the Collector, Bundi. The Collector by his order dated 4.1.1978 found that no such

application was maintainable against the demand of recovery but yet on the administrative side

examined the papers and found the recovery to be justified. Against the order passed by the

Collector on administrative side, the petitioner also filed a petition before the Board of Revenue for

Rajasthan, Ajmer which was rejected by the Board finding it to be not maintainable. It has been

alleged that petitioner is guilty of suppression of these material facts.

6. The learned Single Judge considered the substance of the submission of the parties and found that

it was undisputed that factually no possession was taken by the petitioner and that for nearly 12

years nothing was done and then notice Annex. 13 came to be issued requiring the petitioner to pay

balance of bid money failing which the coercive recovery under Section 229 of the Land Revenue Act

would be taken. The amount of Rs. 29,627/- deposited by the petitioner was also never returned to

him. The learned Judge found notice Annex. 13 to be unsustainable in law. The learned Judge found

that contract was frustrated and remedy on account of such frustration or breach of contract is an

action for liquidated damages in a court of civil jurisdiction and the recovery under Land Revenue

Act in such circumstances is not permissible. Notice Annex. 13 was held illegal and quashed.

However, so far the deposited amount of Rs. 29,627/- was concerned, the learned counsel for the

petitioner did not press any ground for refund of the amount and instead made a request of

transferring the amount to some charitable institution of the Government which prayer was allowed

and the amount was directed to be placed in the welfare fund at the disposal of the Chief Minister.

7. The learned Addl. Advocate General arguing the appeal contended that the petitioner failed to

take possession of the area despite sanction made in his favour and as such he was liable for balance

amount of contract when no other bid came up when the area was put to auction. It was also

contended that the recovery was being made as arrears of land revenue under and by virtue of

Section 85 of the Rajasthan Forest Act. The learned Addl. Advocate General also submitted that

respondent-writ petitioner has pursued the remedy before the Collector and the Board of Revenue

and was not entitled for issuance of any writ at his instance and for contesting the recovery, the only

remedy was to deposit the amount under protest and to file a suit.

8. The learned counsel for the respondent supported the order passed by the learned Single Judge

and submitted that it being clearly an allegation based upon alleged breach of contract, the

appellants are not entitled at their whims to determine the amount and to proceed with its

recovery. The learned counsel also submitted with reference to the order Annex.12 that the Chief

Conservator of Forest failed to determine the questions he was required to determine and the

recovery proceedings were wholly without jurisdiction and that the applications before the Collector

and the Board of Revenue were rejected as not maintainable, hence there is no suppression of any

fact which could be material to the merits of the case.

9. We have given our thoughtful consideration to the rival submissions and perused the entire

record.

10. The undisputed facts of the present case make it evident that contract in question was for about

an year and so far the contractor petitioner is concerned, his keenness to obtain the contract is

evidenced by the material on record. From the bid sheet (Annex.R/2) it appears that nine persons

participated in the bids which started from an amount of Rs. 5000/- which were gradually raised by

other bidders and the petitioner ultimately gave out highest bid of Rs. 51,100/-. The agreement

Annex.1 executed on the same day of 22.2.1973 shows that amount of contract was to be paid in

four installments of Rs. 12,775/- each spread over an year. As against this, the petitioner deposited a

sum of Rs. 25,550/-, representing two installments alongwith other amount of earnest money and

sales tax, totaling to Rs. 29,627/- on that very day of 22.2.1973. It has also not been seriously

disputed by the appellants that it was the seasonal business and the Tendu leaves were to be

collected within a short span till arrival of Mansoon by about the end of months of June.

11. A party to the contract while making an offer takes into consideration various facts and factors

and variation of a substantial part of consideration nullifies against the basic requirement of meeting

of minds for conclusion of an agreement. For the contract of the present nature in which the

seasonal months of March and April were of relevance, the appellants have not been able to show if

they retained within themselves a right to issue sanction of the bid as per their convenience. On

22.2.1973, the petitioner has not only given the highest bid of Rs. 51,100/- but executed the

agreement and deposited even half of the bid amount. Thereafter, according to the showings of the

appellants themselves, for the first time, the government sanctioned the grant of contract only on

3.4.1973 and for the first time, sanction was allegedly sent to the petitioner on 5.4.1973 which

according to the appellants was received by the petitioner on 7.4.1973 although the petitioner has

denied receiving of any such acceptance. Without going into this dispute of fact, we are clearly of

opinion that even if the acceptance was issued on 5.4.1973, a substantial and relevant period of

contract had passed by, nullifying the very basis of the offer made by the petitioner.

12. Moreover, we have examined the acceptance dated 5.4.1973 and the alleged reminder dated

16.5.1973 and it is apparent that the appellants were clearly acting contrary to and beyond the

record. In the alleged notice informing of sanction dated 5.4.1973 (Annex.R/3), the petitioner has

been called upon to deposit first installment of Rs. 12,775/- and to obtain the possession. The

sanction is incorrect on material particulars inasmuch as not one, but two installments had already

been deposited by the petitioner. The letter dated 16.5.1973 (Annex.R/5) suffers from the same

vice. The petitioner has been reminded that he has not deposited the amount of contract and the

sales tax even until 5.5.1973 and not taken possession. The petitioner has been called upon to

deposit the amount within there days but the amount deposited by the petitioner has been totally

omitted from even a mention. It is difficult to believe that the so-called acceptance refers to the

offer made by the petitioner. We are further of opinion that the appellants were not entitled to act

in an arbitrary manner in the matter of award of contract also and could not have kept the petitioner

waiting for an abnormally long time after 22.2.1973, when in the meantime, the season has

commenced. In our opinion, the so-called sanction made by the respondents could only amount to a

counter offer and the petitioner having not accepted the same, no concluded contract came into

existence between the parties so as to invest the appellant with any right to recover any amount in

case of any breach of contract.

13. Apart from the aforesaid, even if it be assumed for the sake of arguments that a concluded

contract came into existence between the parties because of putting into communication the

acceptance letter (Annex.R/3), we are clearly of opinion that the appellants are not entitled to

recover any amount from the petitioner on the assumed breach of contract, it is clear on the fact of

record that in the present case, the petitioner has been disputing any breach on his part. Any

entitlement of the appellants to recover money by way of damages would arise only upon proof of

the essential fact of breach of contract by the petitioner. The appellants, a party to the contract, are

not entitled to assume a breach of contract upon the petitioner and are not entitled to recover any

amount on the basis of the assumed breach of contract. On a plain reading the words of the

agreement, it is clear that right of the appellant to recover the damages would have arisen only after

the breach of conditions was established. When a party to the contract disputes committing any

breach of conditions, in our opinion, there is always required an adjudication by an independent

body on the factum of breach before a right to recover the damages on account of such breach

could be pressed.

14. In the present case, although the Chief Conservator of Forest was invested with powers to decide

upon any question or difference, it is found from the order dated 9.12.1985 (Annex.12) that the

appeal submitted by the petitioner has been disallowed with a wholly cryptic, cursory and non-

speaking order by saying that the grounds raised were not legal and logical and therefore the appeal

was dismissed. The order Annex.12 could least be termed as an expression of any adjudication by

the concerned authority.

15. The learned Addl. Advocate General has placed strong reliance on Section 85 of the Rajasthan

Forest Act which reads as under:-

"85. Recovery of penalties due under bond,-When any person in accordance with any provision of

this Act, or in compliance with any rule made thereunder, binds himself by any bond or instrument

to perform any duty or act or covenants by any bond or instrument that he or that he and his

servants and agents, will abstain from any act, the whole sum mentioned in such bond or instrument

as the amount to be paid in case of a breach of the conditions thereof may, notwithstanding

anything in Section 74 of the Indian contract Act, 1872 be recovered from him in case of such

breach, as if it were an arrear of land revenue."

16. On a plain reading of Section 85, it is evident that when a sum is mentioned in any instrument as

the amount payable in case of breach of conditions, the same could be recovered as arrears of land

revenue notwithstanding Section 74 of the Indian Contract Act.

17. It may be pointed out that so far Section 74 of the Contract Act is concerned, its effect and

operation is that even if a sum is named in the agreement as payable on breach, the party

complaining of breach by the other may not be entitled to the entire of that sum but would be

entitled to a reasonable compensation subject to the maximum as stated in the agreement and what

would be the reasonable compensation would depend upon circumstances of each case. However, it

is always for the party complaining of breach to prove the damage suffered by him, although such

proof may be direct or circumstantial and need not possess the quality of arithmetical exactitude.

Such party, in given case may even establish that sum mentioned in the agreement answers the

requirement of reasonable compensation and the court may grant the entire sum named in the

agreement in case of breach as compensation. However, if the court comes to the conclusion that

the amount fixed in the agreement was 'in terrorem' or unconscionable or extravagant, the court

may award such sum as may appear to be reasonable. In determining the reasonableness of the

compensation, its proportion to the injury caused is a relevant factor. The other relevant factor

being whether the burden evenly and equitably falls on both parties of the contract. There principles

have been summarised by a Division Bench of this Court in Badhava Singh and Anr. v. Charan Singh

and Anr., AIR 1955 Rajasthan 87.

18. Viewed in the light of the aforesaid principles emanating from Section 74 of the Contract Act,

when read in the context of Section 85 of the Rajasthan Forest Act, in our opinion, the requirement

for the complaining party i.e. the government of establishing the sum named in the contract to be

reasonable compensation and its proportion to the injury might have been done away with, and

therefore, the sum mentioned in the agreement itself would be taken to be the reasonable

compensation. However, the right and entitlement to receive such sum as a reasonable

compensation could arise only in case of breach having been established.

19. Exclusion of Section 74 of the Indian Contract Act only means that in case of breaking of a

contract, the liability of the party who has broken the contract would not be restricted to

"reasonable compensation" as envisaged by Section 74. Obviously therefore, in case of breach of

contract, the appellants would be entitled to recover the amount named in the contract but the

applicability of Section 85 itself pre-supposes an established factum of such breach. When the

breach itself is in dispute, the appellants cannot rely upon Section 85 nor could recover an amount

merely for the same having been stated in the contract to be recoverable in case of a breach. Doing

away with the requirement of Section 74 does not dispense with the requirement of establishing the

breach by the contractor in the first place. The appellants are not entitled to presume a breach and

proceed with the recovery as arrears of land revenue. The attempt on the part of appellants to do

away with the adjudication of the question of breach remains illegal and without adjudication of the

question of breach, the intended recovery remains wholly unauthorised. We are, therefore, of

opinion that learned Single Judge was right in observing that without adjudication of the question of

breach of contract, the attempted recovery under Annex.13 remains illegal and the same has rightly

been quashed.

20. So far the concealment of the facts is concerned, it not doubt appears from the record that the

petitioner approached the Collector on 6.9.1977 when he was called upon to make payment of the

remaining amount under the contract. However, the Collector found that the application filed by the

petitioner was not maintainable under any law, yet according to the Collector, the proceedings of

the Forest Department were called by her on the administrative side for verification of the facts. The

Collector observed that prima facie it appeared that the Forest Department was proceedings under

the contract and therefore no administrative order was required form the Collector. The petitioner

approached the Board of Revenue against the order passed by the Collector but the learned

Member of the Board of Revenue was also of the opinion that the application filed by the petitioner

was not maintainable and dismissed the same by the order dated 25.10.1983. These facts have of

course not been stated by the petitioner in the writ petition but on the comprehension of all the

facts of the present case, we are of opinion that this omission on the part of the petitioner is neither

of any significance nor of any relevance.

21. Suppression of a material fact definitely disentitles a petitioner from obtaining any relief in the

writ jurisdiction of this Court. Any attempt to abuse the process of the Court has always been viewed

with considerable disfavour. But then, the omission ought to be of the nature of suppression of a

fact and the suppression again ought to be of a material fact, the test being to see had the fact been

not suppressed, it would have had effect on the adjudication on merits by this Court.

22. In the facts and circumstances of the present case where by the petitioner has submitted the

writ petition after issuance of recovery notice which was issued immediately after passing of the

order by the Chief Conservator of Forest on 9.12.1985 and when the writ petition was entertained

and allowed on merits, we find no ground to non-suit the petitioner at this stage of appeal for not

stating the fact of rejection of his prayers by the Collector and the Board of Revenue as not

maintainable. In our opinion, the omission does not partake the character of suppression of a

material fact.

23. So far the contention regarding availability of the remedy of civil suit is concerned, we are of the

opinion that when the action of the respondents was challenged as being wholly illegal and without

jurisdiction, the availability of the remedy of filing the suit for cancellation of the certificate of

recovery cannot be pressed as a ground to deny writ jurisdiction of this Court. Secondly, in the

present case, the impugned notice (annex.13) was issued on 26.12.1985 and the petitioner

submitted the writ petition immediately thereafter on 7.1.1986 and the petition was admitted on

20.1.1986 and was allowed by the impugned order on 28.11.1995. The objection regarding

availability of alternative remedy cannot be countenanced at this stage of the appeal.

24. We are, therefore, clearly of opinion that the writ petition has rightly been allowed and the

recovery notice Annex. 13 has rightly been quashed. The present appeal deserves to be dismissed.

However, so far the amount deposited by the petitioner Rs. 29,627/- is concerned, it appears that

the petitioner himself has given up his claim for this amount and rightly so as the petitioner who was

also equally required to take appropriate civil action for recovery of the amount, failed to do so

within limitation. However, we find no jurisdiction in the order passed by the learned Single Judge

directing this amount to be diverted to the Chief Minister's welfare fund. When the petitioner has

already given up his right to recover the amount, no purpose was to be achieved by diverting the

amount from the Forest Department of the government to the Chief Minister's fund. The directions

by the learned Single Judge to that extent deserve to be modified with the clarification the the

petitioner would not make any claim for recovery of the said amount from the government.

25. The appeal is, therefore, dismissed subject to aforesaid clarification. There shall be no order as to

costs.


Writ Petition Nos. 5494 of 1998 and 30153 of 2003 and W.P.M.P. Nos. 8495/98, 36836/2003 and

13140 and 43335/2004

Appellants: People Health and Development Council, represented by its Secretary, S.M.

Govindasamy Vs. Respondent: State of Tamil Nadu, represented by Secretary to Government, Forest

and Environment Department and Ors. Decided On: 15.02.2005

AND

Appellants: M. Thangavelu Vs. Respondent: The Chairman, Tamil Nadu Pollution Control Board and

Ors.

Hon'ble Judges:

P. Sathasivam and S.K. Krishnan, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: D. Nagasaila, Adv. in W.P. No. 5494/1998 and R. Dhanapal Raj,

Adv. in W.P. No. 30153/2003

For Respondents/Defendant: E. Sampathkumar, Govt. Adv. for Respondents 1, 2 and 4 in W.P. No.

5494/98 and for 2nd Respondent in W.P. No. 30153/2003, Rita Chandrasekaran, Adv. for (TNPCB)

3rd respondent in W.P.5494/98 and for R1 and R3 in W.P. No. 30153/2003, R. Krishnamoorthy,

Senior Counsel for Rangarajan, Adv. for R5, R6 and R-30 in W.P. 5494/98, B. Kumarasamy, Adv. for R-

7, R-17. R-32, R-34 in W.P. No. 5494/98, G. Masilamani, Senior Counsel for T.P. Manoharan, Adv. for

R9 to R-13, R-15, R-18 to R-20, 23, 26, 27, 35, 36 in W.P. 5494/98, D. Selvaraj, Adv. for R14, 25 in

W.P. 5494/98, S.V. Jayaraman, Senior Counsel for T. Dhanasekaran, Adv. for R-8, R-22, R-29 in W.P.

5494/98, V. Thillaisamy, Adv. for R-21, 31, 33 and 36 in W.P. No. 5494/98, AR.L. Sundaresan, Adv. for

R-38 in W.P. No. 5494/98 and R-4 in W.P. 30153/2003 and A. Suresh, Adv. for R-5 in W.P.

30153/2003

Subject: Trusts and Societies


Catch Words:

Agricultural Land, Damage, Domestic Sewage, Drinking Water, Emission, Inland Water, Mandamus,

Non Governmental Organisation, Official Gazette, Pollution Control, Precautionary Principle,

Prohibition, Public Health, Sewage, Statutory Provision, Trade Effluent

Acts/Rules/Orders:


Cases Referred:

M.C. Mehta v. Union of India, AIR 1988 SC 1037; Vellore Citizens' Welfare Forum v. Union of India,

(1996) 5 SCC 647

ORDER

P. Sathasivam, J.

1. People Health and Development Council, represented by its Secretary S.M. Govindasamy, East

Sottaiyampalayam, R.M. Puthur, Erode-5 has filed Writ Petition No. 5494 of 1998 for issuance of a

Writ of Mandamus, directing the respondents 1 to 4 therein, namely, Forest and Environment

Department, Housing and Urban Development Department, Pollution Control Board and Collector,

Erode District respectively to close down Tannery Units of respondents 5 to 38. One M. Thangavelu

of Ayagoundarapalayam, Gnanapathipalayam, Erode has filed Writ Petition No. 30153 of 2003

praying for a Writ of Mandamus, directing the respondents 1 to 3, namely, Tamil Nadu Pollution

Control Board, the District Collector, Erode and the District Environment-Welfare Engineer, Tamil

Nadu Pollution Control Board, Erode-3 to take action against all the industries in and around Erode

by closing the industries.

2. The case of the People Health and Development Council, as set out in W.P.No. 5494/1998 is

briefly stated hereunder:

It is a Society registered under the Societies Registration Act. It is a voluntary organisation working

for the protection of environment and promoting public health in and around the District of Erode.

The said writ petition was filed against the operation of 34 tanneries which were shown as

respondents 5 to 38 situated in Erode District in and around Suriyampalayam Town Panchayat, P.B.

Agraharam Town Panchayat, Periyasemur Town Panchayat, Veerappanchatram Town Panchayat,

Gangapuram and Kandampalayam Village Panchayats. These tanneries are functioning without

proper authorisation and in violation of all the laws. They are causing severe water, air and soil

pollution. Out of these 34 tanneries, 18 are located in agricultural zones and about five are situated

in residential areas. The five tanneries mentioned as Sl.Nos. 1,2,4,13 and 34 in the Annexure to the

writ petition are located within 1 K.M. of Kalingarayan Canal which is the main water source for all

the villages in that area. The polluting tanneries also lie within the range of one K.M. which is in

violation of G.O.Ms.No. 213 of 89 dated 30-3-1989 which prohibits such location. These tanneries

which are functioning in agricultural, residential and industries zones within one kilo metre radius of

water source have all started functioning without obtaining proper sanction from the 2nd

respondent herein.

3. It is their further case that all the tanneries are letting out untreated effluents into Cauvery River.

The tanneries use about 170 types of chemicals in the chrome tanning process. These effluents have

spoiled the physico-chemical properties of the soil and have contaminated the ground water by

percolation. This is causing untold misery to the residents of that area. There is a unbearable stench

in the surrounding air near every tannery making it impossible for the local residents to live. The

letting out of effluents into the water has polluted both surface water as also ground water to such

an extent that the water which is used for irrigation and drinking has become unfit for the same.

Agriculture has been affected badly and yields have gone down considerably. This has caused great

financial hardship to local farmers. The household articles and utensils have become corroded

because of the use of such contaminated water. The relatives of the petitioner are refusing to visit

him and his family and his family in their house owing to the poor quality of water and air in their

house and nearby. Because of the chemical residues remaining in the ear and skin of the cattle

carcasses even after the preliminary treatment of the skin, the local stray dogs which have been

feeding on the waste remains, are growing to an abnormal size.

4. The Government of Tamil Nadu has acquired more than 2,800 acres of land in Perunthurai Taluk

of Erode District for locating all the hazardous industries. The Government has also assured financial,

technical, and other assistance for setting up modern effluent treatment plants. However, the

tannery owners have been resisting and not cooperating with the Government plans by shifting their

units to the Perunthurai Industrial Estate. The petitioner has made several representations in respect

of individual tanneries to the respondents 1 to 4. The Pollution Control Board has not taken effective

and prompt steps so far. They have no effective machinery to take action against the erring

tanneries.

5. The case of the petitioner in W.P.No. 30153/2003 is briefly stated hereunder:

River Bhavani is running through Erode District. Apart from the river Bhavani there is a canal called

Kalingarayan canal. The people living in and around Erode are totally depending upon the

Kalingarayan Canal for irrigation and drinking water. 15,000 acres of agricultural lands are classified

wet in resettlement records for the past 100 years. There are about hundreds of major industries

engaged in dying processing and the calendering process in and around the banks of Kalingarayan

Canal. Those industries do not have facility to treat effluent materials in the factory premises itself.

All these industries discharged the effluent water into the Kalingarayan canal. Due to the discharge

of poisonous effluent water into the Kalingarayan canal, the water has become totally poisonous and

unfit for irrigation. Due to the mixing of effluent water in the river, the ground water level is highly

affected. The industries should have facility for treating the effluent materials inside their unit. The

discharge of untreated water effluents is illegal and against the provisions of Pollution Control Act.

The industrial unit did not care for the lives of the people. SIPCOT Industrial Globe Centre has

already been set up by the Government at Perundurai wherin eight common effluent treatment

plants would be established for the tanneries and dying industries. If the industries in and around

Erode are shifted to Perundurai, the people will be relieved of their sufferings from pollution. At

present, the industries are functioning, in total violation of the provisions of the Pollution Control

Act.

6. Before referring to the stand taken by Tamil Nadu Pollution Control Board in the form of counter,

additional counter and reply, let us refer the case of the other respondents. Fourth respondent in

W.P.No. 3011153/2003 and 38th respondent in W.P.No. 5494/98-M.A. Bagrudeen has filed a

counter affidavit wherein it is stated that they have erected an effluent treatment plant of their own

costing nearly Rs.40 lakhs and that the same has also been duly inspected by the Tamil Nadu

Pollution Control Board. They also stated that after being satisfied with the same, consent was given

by the Pollution Control Board and they have been duly remitting the renewal fees periodically.

There is no discharge of effluent either into the stream, well, sewer or the land. The agricultural

operations are going on in and around Erode as usual and no set back has been caused either to the

agricultural operations or to the irrigation facilities or to the human health or to the quality of food

grains on account of any activity attributable to the 4th respondent. The Pollution Control Board

through their Unit monitoring their tanneries and pollution is not caused at their instance.

7. 5th and 6th respondents in W.P.No. 5494/1998, namely, Hyder Ali and Rafiz and K.K.S.K. Leather

Processors Private Limited filed a common counter affidavit wherein it is stated that they have been

properly complying with the requisite statutory rules, regulation and norms. Most modern effluent

treatment plants were installed in both their premises, in 1987 and 1995, at the cost of Rs. One

Crore and Rs.80 lakhs respectively and since then these respondents have been properly treating the

effluent generated and the treated effluent is discharged on the lands owned by these respondents.

They have set up a Research and Development (R & D) wing of their own in which qualified

technicians are working full time and are supervising and monitoring the entire treatment process.

Impressed by their "IN-PLANT SYSTEM", the UNIDO invited them to present their experience by

publishing a technical paper in their International Workshop on cleaner tanning technology held in

September, 1998. They also filed an additional counter affidavit wherein it is stated that as per the

directions of the Supreme Court in Vellore Citizens Welfare Forum, the Authority for the Loss of

Ecology (Prevention and Payment of Compensation) for the State of Tamil Nadu was asked to

inspect all the 1961 existing industries within 1 K.M. radius of the specified water sources and

submit their report to the Court, for facilitating this Court to take a final decision on the question of

relocation of any of the said industries. The said authority has also submitted a report. While the

matter is still pending consideration of this Court, the Pollution Control Board ("TNPCB" in short) has

erroneously passed shifting orders dated 18-12-2002. In so far as their units are concerned, they are

complying with the standards prescribed by TNPCB. They are also sincerely and honestly taking steps

to install the Reverse Osmosis Plant suggested by TNPCB.

8. Respondents 7, 8 and 22, 9, 10, 11, 12, 13, 15, 17, 18, 19, 20, 21, 23, 26, 27, 28, 29, 30, 34, 35, 37

filed separate counter affidavit disputing various averments made by the petitioner. They also

highlighted the necessary steps taken by them, and the approval given by TNPCB and other factual

and scientific information regarding their industries. Inasmuch as they raised identical and similar

averments, there is no need to refer the same one by one.

9. Member Secretary, Tamil Nadu Pollution Control Board furnished elaborate details in the form of

counter affidavit and additional counter affidavit in both the writ petitions, namely, W.P.Nos.

5494/98 and 30153/2003. With reference to averments in W.P.No. 5494/98, it is stated that no

tannery units mentioning in the annexure to the writ petition are permitted to operate without

having pollution control measures. The conventional treatment systems provided by these tanneries

are unable to contain the TDS (Total Dissolved Solids) parameter and this parametric value does not

conform to the limit of 2100 mg/lit as prescribed by the Board. The discharge of high TDS trade

effluent from the treatment system provided by the tanneries pollute the land, water sources,

ground-water and affect the agricultural activity; hence frequent complaints have been received

from the public of tannery clusters. The TNPCB is in strict compliance with the direction oof the

Supreme Court in W.P. (C)No. 914/91 dated 28-8-96 and no new tanneries are permitted to set up

within the prohibited area. All the 34 tanneries stated in the affidavit are functioning with individual

effluent treatment plants. Most of these tanneries are discharging their effluent into Cauvery River

or Kalingarayan channel either directly or through the roadside drain. The said water from the

Kalingarayan channel which takes off from Bhavani River and join with Cauvery River has been

utilised for irrigation of 8300 hectares of agricultural land. The water from the Cauvery River is

supplied to public of Erode Municipality and nearby surrounding Town Panchayats apart from its use

to agricultural lands along its course on the downstreams. The said water sources are included in

G.O.Ms.No. 213, (E&F) Department dated 30-3-89, which prohibits 14 categories of industries

including tanneries within 1 Km. Also the Cauvery river and its tributaries are included in the

G.O.Ms.No. 127, (E&F) Department dated 8-5-98 which prohibits the said categories of industries

within 5 km radius. Frequent complaints have been received from the public of Erode regarding

ground water pollution caused by the discharge of high TDS trade effluent from these tanneries into

water sources.

10. The Tamil Nadu Corporation for Industrial Infrastructure Development (TACID), a Government of

Tamil Nadu enterprises have put up an Industrial Growth Centre at Perundurai and Ingur villages,

Perundurai Taluk, Erode District by acquiring 1133 hectares (2800 acres) of land. This industrial

growth centre has been planned to accommodate various types of industries including textile

dyeing, tanneries and chemicals. The TACID applied to Tamil Nadu Pollution Control Board on 2-4-

1996 and obtained consent to establish under Water and Air Acts from Tamil Nadu Pollution Control

Board on 18-8-97. Subsequently, during 1999, the said Perundurai Industrial Growth Centre has

been merged with SIPCOT, Tamil Nadu that is now known as SIPCOT Industrial Growth Centre (SIGC).

During December, 2002, since no concrete proposal was forthcoming from the tanneries at Erode to

combat the TDS problem, the TNPCB has issued direction under Section 33-A of the Water

(Prevention and Control of Pollution) Act, 1974, as amended to all the 44 tanneries at Erode

including 34 tanneries mentioned in the affidavit to shift their industrial activity to SIGC and

commonly implement the comprehensive treatment proposal for zero discharge of effluent in order

to protect and prevent the water sources viz., Kalingarayan channel and Cauvery River and to

redress the public complaints. The effluent discharged from effluent treatment systems provided by

the 44 tanneries including 34 tanneries mentioned in this case are not complying the TDS norms

prescribed by the Board. The Board has been exhorting these tanneries to implement Reserve

Osmosis (R.O.)/other membrane technologies with suitable evaporation systems for the disposal of

rejects, to achieve zero discharge. Some of the tanneries have submitted their proposal for

implementation of common tertiary treatment plant, which is yet to be technically scrutinised.

However, the proposal submitted does not achieve zero discharge. These tanneries at Erode have to

implement an approved comprehensive treatment system on or before March, 2005 and that the

effluent is within the norms prescribed by the TNPC Board and preferably achieves zero discharge.

All the 44 tanneries including the 34 tanneries mentioned in the petitioner affidavit have to comply

with the time limit.

11. The Pollution Control Board has also filed an additional counter affidavit. All the 34 tanneries

mentioned in W.P.No. 5494/98 have provided Effluent Treatment Plant system individually

comprising primary treatment of physio-chemical system and secondary treatment of biological

treatment system. However, in spite of providing the system, they could not achieve zero discharge.

The significance and importance of Kalingarayan canal, which takes off from Bhavani river and joins

with Cauvery river finally, is that the water from it has been utilized for irrigation of 8300 hectares of

agricultural land. Likewise, the significance and importance of Cauvery River, a major river source for

the State of Tamil Nadu, is that the water from this river is supplied to public of Erode Municipality

and nearby surrounding Town Panchayats apart from its use to agricultural lands along its course on

the down streams. Several complaints about the pollution caused by these tanneries have been

received from the public, Farmers Association, Non Governmental Organisations, Office of the

District Collector, Erode and also from the Chief Minister's Cell. The TDS content in the effluent

discharged from the 34 tanneries are far exceeding the norms prescribed of 2100 mg/lit. by the

Board and ordered to be complied by the Hon'ble Supreme Court of India in its final judgement

dated 28-8-1996 in W.P.(C) No. 914/91. The parameter TDS in the effluent discharged from the

existing primary and secondary treatment system could be contained less than 2100 mg/lit., under

their individual Effluent Treatment Plants only by implementing suitable membrane technologies

(Reverse Osmosis System) with suitable evaporation system for the rejects as tertiary treatment. By

implementing the said R.O. system, the standards of 2100 mg/lit. for TDS could be achieved and

further the permeate of R.O. System could be reused completely in the tanning process. Hence, by

implementing the membrane technologies the effluent generated in the tanning process could be

completely recovered and reused in the process, leaving a small quantity of rejects which could be

evaporated through suitable evaporation systems, and discharge of treated effluent not satisfying

the norms either on land for irrigation or on land for open percolation/into water courses could be

avoided. The said R.O. system has been implemented by two tanneries at Ambur in Vellore District

are functioning satisfactorily in containing the TDS matter in the effluent. The permeate of this R.O.

system is being effectively reused in the tanning process completely. Further, the implementation of

the said R.O. system are nearing completion in another two units and the works pertaining to it are

under progress in another 5 units in Vellore District. The implementation of R.O. system with

suitable evaporation system as tertiary effluent system for the existing secondary treated trade

effluent either commonly or individually would ensure zero discharge of effluent and complete

reuse of treated effluent and this will not affect the ground water and all other water sources

mentioned in the affidavit filed by the petitioner. The proposal furnished by M/s. Erode Tannery

Owners Association is in preliminary stage only. Accordingly, it is proposed to blend the treated

tannery effluent with the treated sewage effluent arising from Erode town. The Association is yet to

submit a detailed technical proposal for diluting the treated trade effluent from the proposed

Common Tertiary Treatment Plant with sewage, which will need clearance from the local body and

approval from the National River Conservation Directorate. Further, this proposal also cannot be

claimed as zero effluent discharge system. The tanneries at Erode have to implement the approved

comprehensive treatment system on or before March, 2005. Similar information/steps taken and to

be taken are furnished by the Board in W.P.No. 30153/2003.

12. We have heard Ms. D. Nagasaila, learned counsel for the petitioner in W.P.No. 5494/1998 and

Mr. R. Dhanapal Raj, learned counsel for the petitioner in W.P.No. 30153/2003; and Mr. E.

Sampathkumar, learned Government Advocate for Respondents 1, 2 and 4 in W.P.No. 5494/1998;

Mrs. Rita Chandrasekar for (TNPCB) 3rd respondent in W.P.No.5494/1998 and for respondents 1 and

3 in W.P.No. 30153/2003; Mr. R. Krishnamoorthy, Senior counsel for respondents 5, 6 and 30 in

W.P.No. 5494/1998; Mr. B. Kumarasamy for respondents 7, 17, 32 and 34 in W.P.No. 5494/1998;

Mr. G. Masilamani, senior counsel for respondents 9 to 13, 15,18 to 20, 23, 26, 27, 35, 36 in W.P.No.

5494/98; Mr. D. Selvaraj for respondents 14 and 25 in W.P.No. 5494/98; Mr. S.V. Jayaraman, senior

counslel for respondents 8, 22 and 29 in W.P.No. 5494/98; Mr. V. Thillaisamy for respondents 21, 31,

33 and 36 in W.P.No. 5494/98; Mr. AR.L. Sundaresan for 38th respondent in W.P.No. 5494/98 and

4th respondent in W.P.No. 30153/2003; and Mr. A. Suresh for 5th respondent in W.P.No.

30153/2003.

13. Before proceeding to consider the facts of these cases, it is necessary to state a few words about

the importance of and need for protecting our environment. Article 48-A of the Constitution

provides that the State shall endeavour to protect and improve the environment and to safeguard

the forests and wild life of the country. Article 51-A of the Constitution imposes as one of the

fundamental duties on every citizen the duty to protect and improve the natural environment

including forests, lakes, rivers and wild life and to have compassion for living creatures. Realising the

importance of the prevention and control of pollution of water for human existence, Parliament has

passed the Water (Prevention and Control of Pollution) Act, 1974 (Act 6 of 1974) to provide for the

prevention and control of water pollution and the maintaining or restoring of wholesomeness of

water, for the establishment, with a view to carrying out the purposes aforesaid, of Boards for the

prevention and control of water pollution, for conferring on and assigning to such Boards powers

and functions relating thereto and for matters connected therewith.

14. In addition to the above Act, Parliament has also passed the Environment (Protection) Act, 1986

(29 of 1986) which has been brought into force throughout India with effect from November 19,

1986. Section 3 of this Act confers powers on the Central Government to take all such measures as it

deems necessary or expedient for the purpose of protecting and improving the quality of the

environment and preventing, controlling and abating environmental pollution. 'Environment'

includes water, air and land and the inter-relationship which exists among and between water, air

and land and human beings, other living creatures, plants, micro-organism and property. (Vide

Section 2 (a) of the Environment (Protection) Act, 1986). Under Section 3 (2)(iv) of the said Act the

Central Government may lay down standards for emission or discharge of environmental pollutants

from various sources whatsoever. Notwithstanding anything contained in any other law but subject

to the provisions of the Environment (Protection) Act, 1986, the Central Government may under

Section 5 of the Act, in the exercise of its powers and performance of its functions under that Act

issue directions in writing to any person, officer or authority and such authority is bound to comply

with such directions. The power to issue directions under the said section includes the power to

direct the closure, prohibition or regulation of any industry, operation or process or stoppage or

regulation of the supply of electricity or water or any other service. Section 9 of the said Act imposes

a duty on every person to take steps to prevent or mitigate the environmental pollution. Section 15

of the said Act contains provisions relating to penalties that may be imposed for the contravention

of any of the provisions of the said Act or directions issued thereunder.

15. Now let us consider the relevant statutory provisions of The Water (Prevention and Control of

pollution) Act, 1974, which are applicable to the cases on hand. The words "pollution", "stream", and

"trade effluent" are defined in the Act as follows:

"Section 2 (e) "pollution" means such contamination of water or such alteration of the physical,

chemical or biological properties of water or such discharge of any sewage or trade effluent or of

any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may, or is

likely to, create a nuisance or render such water harmful or injurious to public health or safety, or to

domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of

animals or plants or of aquatic organisms;

(j) "stream" includes-

(i) river;

(ii) water course (whether flowing or for the time being dry);

(iii) inland water (whether natural or artificial);

(iv) sub-terranean waters;

(v) sea or tidal waters to such extent or, as the case may be,

to such point as the State Government may by notification in the Official Gazette, specify in this

behalf;

(k) "trade effluent" includes any liquid, gaseous or solid substance which is discharged from any

premises used for carrying on any industry operation or process, or treatment and disposal system,

other than domestic sewage."

Sections 3 and 4 empower both Central and State Governments to constitute Boards in order to

exercise powers and perform the functions in terms of the provisions. Among the other provisions,

Sections 24 and 25 are relevant for these cases. Section 24 speaks about prohibition on use of

stream or well for disposal of polluting matter, etc., and Section 25 pertains to restrictions on new

outlets and new discharges. Sub-section (4) of Section 25 enables the State Board to grant its

consent referred to in sub-Section (1), subject to certain conditions. It runs as follows:

Section 25 (4). The State Board may-

(a) grant its consent referred to in sub-section (1), subject to such conditions as it may impose,

being-

(i) in cases referred to in clauses (a) and (b) of sub-section (1) of section 25, conditions as to the

point of discharge of sewage or as to the use of that outlet or any other outlet for discharge of

sewage;

(ii) in the case of a new discharge, conditions as to the nature and composition, temperature,

volume or rate of discharge of the effluent from the land or premises from which the discharge or

new discharge is to be made; and

(iii) that the consent will be valid only for such period as may be specified in the order, and any such

conditions imposed shall be binding on any person establishing or taking any steps to establish any

industry, operation or process, or treatment and disposal system of extension or addition thereto, or

using the new or altered outlet, or discharging the effluent from the land or premises aforesaid; or

(b) refuse such consent for reasons to be recorded in writing."

Section 44 prescribes penalty for contravention of Section 25 or Section 26, according to which, any

person who contravened the provisions of Section 25 or 26 shall be punishable with imprisonment

for a term which shall not be less than one year and six months but which may extent to six years

and with fine.

16. Polluting industries in the cases before us are leather industries and few dying factories. Though

the leather industry is of vital importance to the country as it generates foreign exchange and

provides employment avenues, it has no right to destroy the ecology, degrade the environment and

pose as a health-hazard. As observed in Vellore Citizens' Welfare Forum v. Union of India, it cannot

be permitted to expand or even to continue with the present production unless it tackles by itself

the problem of pollution created by the said industry. Some of the tanneries operating in the District

of Erode by now have installed necessary pollution control measures. They have been polluting the

environment for over a decade and in some cases even for a longer period. The Supreme Court has

in various orders indicated that those tanneries are liable to pay pollution fine, the polluters must

compensate the affected persons and also pay cost of the damaged ecology. The Pollution Control

Board has the power under the Environment Act and the Rules to lay down standards for emissions

or discharge of environmental pollutants. Rule 3 (2) of the Rules even permits the Board to specify

more stringent standards from those provided under the Rules.

17. In the light of the statutory provisions, and keeping in view that a State Pollution Control Board

has been constituted with enormous power conferred on it, now we shall consider the steps taken

by the polluting industries, the preventive measures being enforced by the Pollution Control Board.

18. In the earlier part of our order, we have referred to the stand taken by the tanneries and dying

factories. Though it is stated that they provided Effluent Treatment Plant (ETP)in all these

industries/factories as per the norms prescribed by the Central Leather Research Institute and Tamil

Nadu Pollution Control Board, the fact remains that they have not fulfilled the standard prescribed

as per the provisions of the Act, Rules and the Guidelines issued by the Supreme Court. The Member

Secretary, Tamil Nadu Pollution Control Board filed a status report containing the details of name

and address, consent status, ETP status, mode of effluent disposal and confluence point of effluents

of 34 tannery units in the annexure to his counter affidavit. It is stated that no tannery units are

permitted to operate without having pollution control measures. The conventional treatment

systems provided by these tanneries are unable to contain the Total Dissolved Solids (TDS)

parameter and this parametric value does not conform to the limit of 2100 mg/lit as prescribed by

the Board. The discharge of high TDS trade effluent from the treatment system provided by the

tanneries pollute the land, water sources, ground water and affect the agricultural activity. It is

relevant to mention that the Hon'ble Supreme Court in its final order dated 28-8-1996 in W.P (C) No.

914 of 1991, ordered that the standards stipulated by the Board regarding TDS (2100 mg/lit.,) and

approved by NEERI shall be operative. All the tanneries and other industries in the State of Tamil

Nadu shall comply with the said standards. The quality of ambient water has to be maintained

through the standards stipulated by TNPCB. It is the stand of the Board that in order to comply with

the directions of the Supreme Court, the Board has been exhorting continuously the tanneries in the

State to implement treatment technologies such as membrane systems with suitable evaporation

methods for the disposal of rejects. It is the further stand of the Board that by implementing the

R.O. system, the standards of 2100 mg/lit for TDS could be achieved. Further, the permeate of the

R.O. system could be reused completely in the tanning process and thus zero discharge of tannery

effluent could be ensured.

19. The information furnished by the Board would go to show that all the 34 tanneries stated in the

affidavit filed in support of W.P.No. 5494/1998 are functioning with individual effluent treatment

plants. However, most of the tanneries are discharging their effluent into Cauvery River or

Kalingarayan channel either directly or through the roadside drain. The said water from the

Kalingarayan channel which takes off from Bhavani River and join with Cauvery River has been

utilised for irrigation of 8300 hectares of agricultural land. Further, the water from the Cauvery River

is supplied to public of Erode Municipality and nearby surrounding Town Panchayats apart from its

use to agricultural lands along its course on the down streams. The said water sources are included

in G.O.Ms.No. 213, (E&F) Department dated 30-3-1989, which prohibits 14 categories of industries

including tanneries within 1 Km. It is further seen that the Cauvery River and its tributaries are

included in G.O.Ms.No. 127, (E&F) Department dated 8-5-98 which prohibits the said categories of

industries within 5 Km radius.

20. We have already referred to the relevant remedial measures taken by the Government of Tamil

Nadu, namely, setting of Industrial Growth Centre at Perundurai and Ingur villages, Perundurai

Taluk, Erode District by acquiring 1133 hectares (2800 acres) of land. The Board has explained that

this industrial growth centre has been planned to accommodate various types of industries including

textile dyeing, tanneries and chemicals. It is further seen that the Tamil Nadu Corporation for

Industrial Infrastructure Development (TACID) applied to Tamil Nadu Pollution Control Board on 2-4-

1996 and obtained consent to establish under Water and Air Acts from Tamil Nadu Pollution Control

Board on 18-8-97. Thereafter, in 1999, the said Perundurai Industrial Growth Centre has been

merged with SIPCOT and that is now known as SIPCOT Industrial Growth Centre (SIGC). It is

significant to mention that this industrial complex is located away from the prohibited area as

contemplated in G.O.Ms.No. 213, E and F Department, dated 30-3-1989 and G.O.Ms.No. 127, E and

F Department, dated 8-5-1998. It is brought to our notice that the District Collector, Erode has

addressed the Chairman and Managing Director, SIPCOT, Chennai, in his letter dated 24-3-2001 to

allot land in the SIGC, Perundurai for the tanneries. The status report further shows that since no

concrete proposal was forthcoming from the tanneries at Erode to combat the TDS problem, the

TNPCB has issued direction under Section 33-A of the Water (Prevention and Control of Pollution)

Act, 1974 as amended to all the 44 tanneries at Erode including 34 tanneries mentioned in the

affidavit in W.P.No. 5494/1998 to shift their industrial activity to SIGC and commonly implement the

comprehensive treatment proposal for zero discharge of effluent in order to protect and prevent the

water sources viz., Kalingarayan channel and Cauvery River and to redress the public complaints.

Pursuant to the said direction, M/s. Perundurai Leather Industries Eco Security Private Limited

(PLIES) formulated by 25 member tanneries have come forward to implement a CETP system with

zero effluent discharge concept at SIGC, Perundurai, Erode District with Central Leather Research

Institute, Chennai, a pioneer leather research institute as their technical partner. It is further brought

to our notice that as per the "Precautionary Principle" the Board has also issued consent

establishment to the said CETP Company on 16-08-2002, and that the implementation of the above

CETP system by M/s. PLIES as per the conditions imposed in the consent for establishment issued by

the Board ensure zero discharge of effluent and hence, this will not affect the prevailing

environment of the industrial area of SIGC, Perundurai, Erode.

21. As said earlier, though all the 34 tanneries mentioned in W.P.No. 5494/1998 have provided ETP

system individually comprising primary treatment of physio-chemical system and secondary

treatment of biological treatment system, the additional counter affidavit filed by the Board shows

that the TDS discharged from the ETP system has not reduced. The details furnished in the additional

counter affidavit dated 7-1-2005 shows that the TDS value is more than the prescribed norm of 2100

mg/lit. The discharge of high TDS effluent increases the salinity of receiving body and thus pollutes

the land, water sources and ground water and affects the agricultural activity. The facts and

particulars furnished by the Board clearly show that the TDS content in the effluent discharged from

the 34 tanneries are far exceeding the norms presciribed of 2100 mg/lit. and this proves that the

existing treatment provided by these 34 tanneries including the 5th, 6th and 12th respondent (in

W.P.No. 5494/1998) is unable to contain the pollutant, TDS. Hence the claim of the tanneries that

they are continuously complying with the Tamil Nadu Pollution Control Board norms is proved

incorrect.

22. The Board has also suggested that the parameter TDS in the effluent discharged from the

existing primary and secondary treatment system could be contained less than 2100 mg/lit. under

the individual Effluent Treatment Plants only by implementing suitable membrane technologies

(Reverse Osmosis System) with suitable evaporation system for the rejects as tertiary treatment. By

implementing the said R.O. system, the standards of 2100 mg/lit. for TDS could be achieved and

further the permeate of R.O. system could be reused completely in the tanning process. Hence, by

implementing the membrane technologies the effluent generated in the tanning process could be

completely recovered and reused in the process, leaving a small quantity of rejects which could be

evaporated through suitable evaporation systems, and discharge of treated effluent not satisfying

the norms either on land for irrigation or on land for open percolation/into water courses could be

avoided. The discharge of effluent by the respondent tanneries, after treatment in their existing

treatment systems, on land for irrigation, without complying the TDS norms either within unit

premises or land outside the premises owned by the unit cannot be construed as zero discharge

system. In this regard, it is relevant to point out that the above R.O. system has been implemented

by two tanneries at Ambur in Vellore District and they are functioning satisfactorily in containing the

TDS matter in the effluent. According to the Board, the permeate of this R.O. system is being

effectively reused in the tanning process completely. The Board has also informed this Court that the

CETP of M/s. PLIES at SIGC, Perundurai, Erode District has proposed to implement the zero effluent

discharge system and the said CETP was permitted to establish the said zero effluent discharge

system by this Court in W.P.No. 1682 of 2003. Though the Board has directed all the tanneries at

Erode to implement the approved comprehensive treatment system on or before March, 2005, all

the learned counsel appearing for the respondents requested this Court that by granting a

reasonable time, it would be possible for them to achieve the TDS norms of 2100 mg/lit by

implementing the R.O. system.

23. In the light of our discussion, it is clear that though all the tanneries in and around Kalingarayan

channel and Bhavani River have Effluent Treatment Plants, in the absence of implementation of

suitable membrane technologies, namely, Reverse Osmosis system (R.O. system), the TDS in the

effluent discharged from the existing treatment system is not under control. Undoubtedly, all the

tanneries and dying factories have to strictly adhere to the norms namely that the effluent discharge

either on land or any water course shall not contain constituents in excess of the tolerance limit laid

down for TDS as 2100 mg/lit. In order to achieve this goal, they have to adopt and implement

suitable membrane technologies, Reverse Osmosis system with evaporation system for the rejects

as tertiary system. This will go a long way in curbing the environmental hazard. For compliance of

the same, this Court feels that a further reasonable time may be granted. Accordingly, all the

tanneries/dyeing units located in Erode District are granted time till 31-08-2005. The District

Collector and the officers of the TNPCB are directed to give wide publicity in the area concerned

regarding the direction and the extension of time granted for compliance. It is made clear that those

who are not willing to adhere to this direction and adopt the R.O. system, they are free to shift their

concern to SIGC, Perundurai within that period. The Collector and the officers of the Board are

directed to make periodical inspection to the tanneries/dyeing units for proper implementation of

the above direction. Before conclusion, as observed in M.C. Mehta v. Union of India, though we are

conscious of the fact that these tanneries bring more employment and revenue, but life, health and

ecology have greater importance to the people. Post these writ petitions for reporting compliance

on 16-09-2005.

Equivalent Citation: AIR2005Ker223, 2005(2)KLT485


O.P. No. 14224 of 1994

Appellants: Balakrishnan Nair Vs. Respondent: Government of Kerala:Decided On: 22.02.2005

Hon'ble Judges:

K.S. Radhakrishnan and M.N. Krishnan, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: P.N.K. Achan, Sr. Adv., T. Sethumadhavan and K. Mohana Kannan,

Advs.

For Respondents/Defendant: Susheela Bhat, Spl. Government Pleader


Catch Words:

Act, Appeal, Application, Arrangement, Assignment, Attached, Authorised Officer, Authoritative

Pronouncement, Case, Consideration, Date, Dead, Decision, Decree, Destroyed, Destruction,

Disease, Ecological Imbalance, Exercise Of Power, Explanatory Note, Form, Government,

Government Pleader, Ground, Hereby, Information, Interpretation, Issue, Judgment, Land, Lead,

Loss, Name, Notification, Notified Area, Object, Object of, Officer, Order, Permission, Petition, Plant,

Plantation, Pleader, Power-of-attorney, Powers under, Preservation, Previous Permission, Private

Land, Prohibition, Promulgation, Property, Publish, Published, Reference, Refused, Repeal, Repealed,

Reserve, Restored, Restriction, State, Survey, Time being in Force, Tribunal, Vested, Warrant, Writ,

Writ Petition, Writing

Acts/Rules/Orders:

Kerala Preservation of Trees Act, 1986 - Section 4, 5, 5(1) and 5(2); Kerala Private Forest (Vesting and

Assignment) Act, 1971 - Section 3(2); M.P.P.F. Act; Kerala Restriction on Cutting and Destruction of

Valuable Trees Act, 1974

Cases Referred:

Mathew and Anr. v. D.F.O. and Ors., 1997 (1) KLT 61, 1996 (2) KLJ 461; Kummath Chandran and Ors.

v. State and Ors., 1996 (2) KLJ 781

Disposition:

Petition dismissed

JUDGMENT


1. This matter has been placed before us on a reference made by the learned Single Judge.

2. The question is with regard to the interpretation of Section 5(1) of the Kerala Preservation of

Trees Act, 1986 which prohibits cutting of trees in the notified area. Contention was raised by the

petitioner laying stress on the expression "tree growth" stating that what is envisaged in Section 5(1)

is only wild growth and not the trees planted by the petitioner. Counsel submitted Section 5 of the

Act enables the Government to issue notification only to preserve tree growth in private forests, or

in the Cardamom Hills reserve or in any other areas cultivated with Cardamom and that the words

"tree growth" refers only to wild growth and not plantations. Learned Single Judge felt that on the

above question an authoritative pronouncement is warranted.

3. We heard Senior Counsel Sri.P.N.K. Achan as well as Special Government Pleader for Forests Smt.

Susheela Bhat.

O.P.No. 14224 of 1994. Decided on 22nd February, 2005.

4. Petitioner through his Power-of-Attorney had filed O.A. before the Forest Tribunal, Palakkad for

exempting 8.22 acres of land in Keralassery village from the provisions of Section 3(2) of the Kerala

Private Forest (Vesting and Assignment) Act, 1971. Application was allowed by the Forest Tribunal

on 2.8.1977. State took up the matter in appeal M.F.A. No. 108 of 1978 which was dismissed.

Consequently the area involved in O.A. was restored to the petitioner on 9.7.1993 after notifying the

area under Section 5 of the Kerala Preservation of Trees Act.

5. Notification issued under the Act was published in the Gazette dated 2.7.1991 as per G.O.(P) No.

45/91/F&WLD dated 10.6.1991. The notification and the explanatory note attached to it is extracted

hereunder for easy reference.

S.R.O. No. 891/91 -- In exercise of the powers conferred by Sub-section (1) of Section 5 of the Kerala

Preservation of Trees Act, 1986 (35 of 1986) read with Sub-section (2) of Section 5 thereof the

Government of Kerala hereby direct that no tree standing in the area specified in the Schedule

below, shall be cut, uprooted, burnt or otherwise destroyed except on the ground that--

(a) the tree constitutes a danger to life or property, or

(b) the tree is dead, deceased or wind fallen.

� O.A.No.�� :�� O.A.548/74

� District�� :�� Palghat

� Taluk�� :�� Palghat

� Village�� :�� Keralassery

� Name of Malavaram :�� Tadukkassery Malavaram

� Survey No.�� :�� ResurveyNos. 201/1, 11, 12, 13,31,206/10, 11,

�� (Old Survey Nos. 255/1 , 2, 256/1 , 2, 3,

6, 257/2, 3,

��11)

�� Extent�� :�� 3.3251 hectares

�� Boundaries:

��East�� :�� Changanathu Chinnammalu Amma Paramba and

�� areas in Survey field No. 202/pt.

�� South�� :�� do

�� North�� :�� Vested Forest and area in survey Field No. 201/9,

�� 10 and area 200.

�� West�� :�� Thodu

Explanatory Note

(This does not form part of notification but is intended to indicate its general purport)

The area forms parts of private forests coming under erstwhile M.P.P.F. Act and having large

spontaneous tree growth of forest species. The petitioner in O.A. 548/74 succeeded in getting the

area restored as per Section 3(2) of the Kerala Private Forests (Vesting and Assignment) Act, 1971. It

is likely that the petitioner will cut and remove the trees available there which will result in wanton

destruction of trees and will lead to ecological imbalance including land slide, soil erosion etc.

Therefore, this area has to be notified under Section 5 of the Act.

The above mentioned notification was issued in exercise of the powers conferred by Sub-section (1)

of Section 5 of the Kerala Prevention of Trees, 1986. The said provision is extracted below for easy

reference.

"5. Prohibition of cutting of tree in notified areas:- (1) Notwithstanding anything contained in any

law for the time being in force, or in any judgment, decree or order of any Court, tribunal or other

arrangement, the Government may, with a view to preserving the tree growth in private forests, or

in the Cardamom Hills Reserve or in any other areas cultivated with cardamom, by notification in the

Gazette, direct that no tree standing in any such area specified in the notification shall be cut,

uprooted, burnt or otherwise destroyed except on the ground that-

(a) the tree constitutes a danger to life or property; or

(b) the tree is dead, diseased or windfallen:

Scope of the above mentioned provision came up for consideration before one of us (K.S.

Radhakrishnan, J.) in Mathew and Anr. v. D.F.O. and Ors., 1997 (1) KLT 61 = 1996 (2) KLJ 461 and

Kummath Chandran and Ors. v. State and Ors., 1996 (2) KLJ 781. Decision in Mathew's case, supra,

1997 (1) KLT 61 = 1996 (2) KLJ 461, was appealed against in W.A. No. 1906 of 1996 and the appeal

was dismissed on 27.2.2002. The scope of Sections 4 and 5 of the Act was considered in Mathew's

case, supra and the Court held as follows:

"Act 35 of 1986 is an Act enacted to preserve trees in the State of Kerala. Act was enacted to

regulate indiscriminate felling and destruction of trees in the State of Kerala, since it was found that

there has been indiscriminate felling and destruction of trees in the State of Kerala resulting in

considerable soil erosion and destruction and loss of timber wealth of the State. Before the

Promulgation of this Act, Kerala Restriction on Cutting and Destruction of Valuable Trees Act, 1974

was in force in the State of Kerala. It restricted cutting and destruction of certain valuable trees in

private lands in the State of Kerala. Valuable tree had been defined in the said Act to mean

sandalwood, rosewood and teakwood tree. Kerala Prevention of Trees Ordinance, 1986 was also in

force. Both the Act of 1974 and Ordinance of 1986 were repealed by 1986 Act. Object of the present

Act, apart from making restriction on cutting and destruction of trees in private lands, is also to

prevent soil erosion and destruction and loss of timber wealth in the State.

Section 4 of the Act restricts the cutting of trees without previous permission of the authorised

officer in writing. This provision only restricts the cutting, so as to achieve the object of the Act that

is to prevent soil erosion and destruction of loss of timber generally from private holdings. However,

permission shall not be refused if the tree constitutes danger to life or property or if the tree is dead,

diseased, or windfallen."

Contention was raised by the Senior Counsel Sri. P.N.K. Achan that the Government have got the

power to issue notification only to preserve tree growth in private forests or in any other areas

cultivated with cardamom and that the words "tree growth" refers only to wild growth and not

plantations. We are of the view, the expression "tree growth" as such cannot be read in isolation.

For the preservation of tree growth Government can issue notification under the preservation of

Trees Act. Tree growth would take in the trees specified in the notification. Notification has to be

issued by the Government in exercise of powers under Section 5(1) of the Act to preserve tree

growth which takes in all trees specified in the notification. We are of the view that is the only

interpretation possible. In the light of the above interpretation, contention raised by the counsel has

no force. In such circumstances, Writ Petition lacks merits and the same would stand dismissed.

Equivalent Citation: ILR2005KAR1870, 2005(3)KarLJ555

IN THE HIGH COURT OF KARNATAKA

Writ Petition No. 28928/2000

Appellants: Rudrachari Vs. Respondent: The Principal Chief Conservator of Forest and Ors.: Decided

On: 09.03.2005

Hon'ble Judges:

K.L. Manjunath, J.

Counsels:

For Appellant/Petitioner/Plaintiff: Jagadeeshachari, Adv.

For Respondents/Defendant: B.N. Prasad, HCGP


Catch Words:

Accessories, Act, Application, Bullock Cart, Case, Commencement, Concern, Control, Date, Date Of,

Forest Officer, Grant, Grant of License, Ground, Information, Interim Order, Licence, License,

Machinery, Month, Obtain Licence, Officer, Order, Owner, Person, Petition, Principal, Proprietor,

Protected, Release, Repair, Reserve, Return, Right, Seized, State, Undertaking, Work, Writ, Writ

Petition

Acts/Rules/Orders:

Karnataka Forest (Amendment) Act, 1974; Karnataka Forest Rules, 1969 - Rule 163, 163(1) and

163(2)

Disposition:

Petition dismissed

Case Note:

KARNATAKA FOREST RULES, 1969 - RULES - 163 (1) & (2) - CONTROL OF PRIVATE SAW PITS, SAW

MILLS OR ANY OTHER SAWING CONTRIVANCES UNDER - HELD, No person shall have any right to

establish a saw mill or any other Sawing controvances, for cutting or converting Timber any where in

the state without obtaining a Licence from the concerned divisional Forest Officer - ON FACTS, HELD-

The petitioner has instated C.I. Bend Saw Machine 24" For the purpose of cutting the wood - The

petitioner has to obtain licence under Sub-rule (2) of Rule 163 of the Karnataka Forest Rules, 1969.

Rejecting the writ petition, the Court

Held:

It is not the case of the petitioner that he has installed machinery in question for the purpose other

than cutting of w0ood. Therefore this court is of the opinion that petitioner has to obtain licence

under the karnataka Forest Rules, 1969 in order to instal C.I. Bend saw machine 24 "

ORDER

K.L. Manjunath, J.

1. Petitioner is a Blacksmith by profession and is undertaking repair works of bullock carts. While

manufacturing wooden wheels and other accessories required for the bullock carts, petitioner has

installed 24" C.I. Bend Saw Machine, Respondents have seized the machine on 18.8.2000 on the

ground that the same has been installed without obtaining any license. Therefore, present petition is

filed by him contending that he is not liable to obtain a license to instal such machine and to direct

the respondents to return the seized machine.

2. By virtue of an interim order granted by this court, machine in question is released to the

petitioner. Therefore, what is to be considered by this court in this writ petition is whether

petitioner has to obtain license under the Karnataka Forest Rules, 1969 to instal such a machine.

Rule-163 provides for control of private saw pits, saw mills or any other sawing contrivances. Rule-

163(1) & (2) reads as hereunder:

"163 Control of private saw pits, saw mills or any other sawing contrivances-

(1) No saw pit or any other hand-sawing contrivance for cutting or converting timber shall be

established within the limits of any reserved forest, protected forest or district forest or within 2

kilometers of such limits or within the areas specified below, without obtaining a licence from the

concerned Range Forest Officer-

1. Shimoga District.

2. Chickmagalur District.

3. Coorg District.

4. South Kanara District.

5. North Kanara District.

6. Hassan District excluding

channarayapatna & Holenarasipura Tq.

7. Khanapura Tq. of Belgaum Dist.

8. Kalghatgi, Hangal, Shiggaon & Dharwad Taluks of Dharwar Dist.

9. Sandur & Kudligi Tq. of Bellary Dist

10. Chincholi Tq. of Gulbarga Dist.

(2) No person shall establish a saw mill or any other sawing contrivance other than those specified in

Sub-rule (1) for cutting or converting timber, anywhere in the State without obtaining a licence from

the concerned Divisional Forest Officer.

(2A) No owner or proprietor of a saw mill or a saw pit or any other sawing cantrivance existing on

the date of commencement of the Karnataka Forest (Amendment) Act, 1974 shall run or use such

mill, pit or contrivance for the purpose of cutting or sawing any tree or timber thereof after the

expiry of three months from the date of commencement of the said Act without obtaining a licence

from the concerned Divisional Forest officer".

From reading of Sub-rule(2) of Rule-163 it is clear that no person shall have any right to establish a

saw mill or any other sawing controvances, for cutting or converting timber anywhere in the state

without obtaining a license from the concerned Divisional Forest officer. It is not the case of the

petitioner that he has installed machinery in question for the purpose other than cutting of wood.

Therefore, this court is of the opinion that petitioner has to obtain licence under the karnataka

Forest Rules, 1969 in order to instal C.I. Bend Saw Machine 24"

3. In the circumstances, this petition is rejected. It is open for the petitioner herein to make

necessary application before the respondents for grant of license. If such an application is filed,

same shall be considered by the respondents in accordance with law. Three months time is granted

for the petitioner to obtain license from the respondents.

Equivalent Citation: (2005)140PLR457

IN THE HIGH COURT OF PUNJAB AND HARYANA

Civil Writ Petition No. 4506 of 2004

Appellants: Kala Singh and Ors. Vs. Respondent: Union of India (UOI) and Ors.:Decided On:

14.03.2005

Hon'ble Judges:

D.K. Jain, C.J. and Hemant Gupta, J.

Counsels:

For Appellant/Petitioner/Plaintiff: S.S. Narula, Adv.

For Respondents/Defendant: Gurpreet Singh, Adv. for Respondent No. 1, A.G. Mashih, Deputy Adv.

General, Punjab for Respondent No. 2, A.R. Takkar, Adv. for Respondent No. 3, Anil Malhotra, Adv.

for Respondent No. 4, Ashwani Kumar Chopra, Sr. Adv. and Rajbir Singh, Adv. for Respondent No. 5


Catch Words:

Air Pollution, Certiorari, Environmental Impact Assessment, Odour, Pollution Control

Acts/Rules/Orders:

Environment (Protection) Act 1986; Water (Prevention and Control of Pollution) Act, 1974; Air

(Prevention and Control of Pollution) Act, 1981; Environment (Protection) Rules; Constitution of

India - Article 226

Disposition:

Petition dismissed

JUDGMENT

Hemant Gupta, J.

1. The present writ petition is under Article 226 of the Constitution of India for restraining the Union

of India from issuing an Environment Clearance Certificate in favour of M/s. Pioneer Ltd. respondent

No. 5 permitting it to establish and run a Distillery Unit and a writ of certiorari quashing and setting

aside the recommendation/No Objection Certificate issued by the Punjab Pollution Control Board

(hereinafter referred to as the Board).

2. The petitioners are the residents of the villages situated in the close vicinity of Industrial Growth

Centre, Defence Road, Village Ranipur near Pathankot, where respondent No. 5 has set up a unit for

the manufacture of Gluten and Glucose. It is alleged that the said unit is emitting pollution much

beyond the prescribed limits. It is not only polluting the air but is also causing water pollution as

effluents are discharged with water without treatment. The area does not even have a proper

sewerage system and thus, the waste disposal is becoming a health hazard for the residents of the

area.

3. The petitioners have further pleaded that as industrial growth was not taking place in the

Industrial Growth Centre, therefore, the Punjab Small Industries and Export Corporation Ltd. who

has set up such Industrial Growth Centre, converted the land meant for setting up of Industrial Units

into residential area. About 400 plots were allotted in the year 2000/2001. The residential plots

were carved out adjacent to the unit of respondent No. 5. Village Akhwana with a population of

about 3000 is situated at a distance of about 100 yards from the outer wall of the unit of respondent

No. 5. About 30 villages surrounded such Industrial Growth Centre within a radius of 5 kilometres

with a population of 1,25,000. It is pleaded that despite the pollution emitted by the unit already run

by respondent No. 5, the said respondent is proposing to set up a distillery for manufacturing of

alcohol in the said area.

4. By virtue of notification dated 27.1.2004, Environment Clearance is contemplated from the

Central Government after granting a public hearing. A public notice was issued to convene a public

meeting in pursuance of the said notification for 29.4.2003. Since only few persons turned out on t

he said d ate, the public hearing was organised on 13.5.2003 at the factory gate of unit of

respondent No. 5, on which date about 1500 persons from the vicinity including the petitioners and

other respectables attended such meeting. It is the case of the petitioners that public clearly

objected in the said meeting the setting up of a distillery as it would completely destroy the area on

account of air and water pollution. The level of sub soil water would be further lowered and the air

pollution on account of the burning of fuel comprising of rice husk would create a hazard to the

health of the residents of the area which was already economically backward. The air pollution was

alleged to be apparent to the naked eye as the effluents in the air were settling on the people who

had "gathered for the public hearing. Though the public meeting was attended by a large number of

residents but as the outcome of the meeting was not likely to be favourable to respondent No. 5,

another public hearing was organised on 29.10.2003. The said meeting was organised at P.W.D. Rest

House, Pathankot, which is about 8 kilometres from the spot whereas the previous public hearing

was organised at the factory gate of the unit of respondent No. 5. It is further pointed out that the

petitioners reached at the spot for meeting but none of the officials of respondent No. 2 were

present. A memorandum was submitted to the Sub Divisional Officer (C) objecting to setting up of

distillery at the said place, but subsequently, the petitioners came to know that the meeting dated

29.10.2003 was cancelled. Another meeting was organised for 3.12.2003 but the petitioners were

not permuted to attend the meeting which was convened in the said P.W.D. Rest House. The

petitioners submitted a memorandum to the Sub Divisional Officer (C), Pathankot.

5. It is the grievance of the petitioners that, the State Authorities have failed to comply with the

provisions of the Environment (Protection) Act 1986 (hereinafter referred to as the Act) and the

Rules framed thereunder. It has failed to consider and appreciate the effect of the air and water

pollution emitted by the distillery unit proposed to be established and the public hearing was

organised as an eye wash to manipulate a favourable finding in favour of respondent No. 5. It is

further pointed out that in terms of notification dated 20.1.1998 the distillery unit cannot be set up

at the proposed site as it is in the near vicinity of residential colony establishment by Punjab Small

Industries and Export Corporation Ltd. respondent No. 4. The said notification contemplates that

consent to establish any industry in any approved residential area colony developed by any

Government Agency shall not be granted. Thus, it is alleged that "No Objection Certificate" cannot

be granted to respondent No. 5.

6. Separate written statements have been filed by each of the respondents. In the written

statements dated 19.5.2004, it was the stand of respondent-No. 1 that the said respondent has not

received any application from respondent No. 5 or any other person for environmental clearance of

the proposed distillery unit under the provisions of Environmental Impact Assessment Notification of

the year 1994. However, during the course of hearing, a communication dated 31.1.2005 was

produced wherein Ministry of Environment and Forests has accorded environmental clearance to

the project under the provisions of EIA notification dated 27th January, 1994 subject to the strict

compliance of the specific and general conditions and subject to the decision of the present writ

petition. It also contemplated that unit will adopt continuous fermentation technology. Spantwash

generation will be less than 12 KL of alcohol produced. Spantwash generated will be evaporated in a

multiple effect evaporator, which will be designed for continuous concentration from 2.25% solids to

35% solids. Solid wastes generated in the form of MEE residue will be used as cattle feed. There will

be zero discharge of effluents from the distillery.

7. The State of Punjab, respondent No. 2 reply stated that "No Objection Certificate" has been issued

in favour of respondent No. 5 for setting up distillery in the same premises subject to the meticulous

adherence to all the norms and conditions applicable and laid down by the Board and Central

Pollution Control Board. Respondent No. 3 Punjab Pollution Board denied that unit of respondent

No. 5 is creating water and air pollution. The said Industrial Unit is situated in designated industrial

area and had been operating from March, 2002 after obtaining necessary consent to operate under

Water (Prevention & Control of Pollution) Act, 1974 and Air (Prevention & Control of Pollution) Act,

1981. It was further stated that the industry has been visited from time to time by the officials of the

respondent and the samples of effluents/emissions from the said industry were collected and

analysed which clearly reveal that various parameters of the effluents/emissions are within the

permissible limits. It is denied that public hearing on 13.5.2003 was an eye wash which was

supervised by a panel of members nominated by the Government as per the procedure laid down in

the notification. 165 persons were present in the hearing which is evident from the attendance

register maintained at the time of the hearing. Subsequently, the industry submitted a

representation to the Board stating that they have informed the public about the pollution control

measures which would be taken to control any pollution likely to be caused by the proposed

distillery project and requested the Board to conduct the public hearing again. The said public

meeting was held on 11.2.2004 after reschedule of the meeting date. Not only the public notices

were published in the daily newspapers but also Sarpanches of the affected villages were personally

informed about the public hearing and 257 persons attended the hearing. The Board in its written

statement stated to the following effect:-

"The answering respondent has technically evaluated the pollution control equipments proposed to

be installed in the distillery project. In this regard it would be relevant to bring to the kind notice of

this Hon'ble Court that the proposed distillery project will have zero discharge i.e. no waste water

generated from the distillery will be discharged anywhere. This technology of zero discharge has

been proposed by the project proponent in accordance with the guide-lines framed by the Ministry

of Environment & Forests/Central Pollution Control Board with regard to the distilleries. In fact, the

water pollution control equipments proposed by the project proponent i.e. multiple effect

evaporator are first of its kind in the State. The entire spent wash generated from the distillery will

be burnt in the multiple effect evaporator. Moreover, the raw material to be used in the distillery

will be wheat grains instead of molasses traditionally used by the distilleries which are potentially

more pollution generating and cause odour problem. It is further pertinent to mention here that the

Board has yet not issued 'No Objection Certificate' (NOC) to the industry. All the pollution control

measures proposed by the industry will be thoroughly checked for their feasibility before the grant

of NOC to the said industry."

8. Respondent No. 4 Punjab Small Industries and Export Corporation Limited, permitted distillery

unit in view of the undertaking of the industry that alcohol shall be their by product and that the

proposed distillery shall conform to the zero effluent/emission discharge as per norms and guide-

lines of the Board.

9. The learned counsel for the petitioners has vehemently argued that public hearing on 11.2.2004

was a farce and thus, clearance granted by the Ministry of Environment and Forests is not legal and

proper. It has also been argued that the plot measuring 22 acres has been allotted to respondent No.

5 only for setting up of a unit Wheat Starch, Gluten, Modified Starch and its by product. Therefore,

the distillery should not be set up at the said plot. It is further argued that the distillery unit is sought

to be set up near the residential area and such distillery unit is to cause water and air pollution

which would be hazardous to the health of the inhabitants of the locality.

10. We have heard the learned counsel for the parties and do not find any merit in the arguments

raised by the learned counsel for the petitioners. The detailed facts and circumstances have been

given in the written statements filed on behalf of the Board as well as that of respondent No. 5 to

the effect that public hearing was held on 11.2.2004. In fact, the factum of hearing on the said date

is not disputed by the petitioners as well. A reading of the written statements leaves no manner of

doubt that such meeting was attended by large number of persons. But we do not find any

irregularity in the conduct of meeting on 11.2.2004 which was attended by more than 250 persons.

It is not the case of the petitioners that any of the requirements of public hearing contemplated in

notification dated 27.1.1994 has not been complied with. Therefore, the Environmental Clearance

granted by or on behalf of respondent No. 1 cannot be said to be suffering from any illegality or

irregularity.

11. The plot measuring approximately 22 acres was, no doubt, allotted for setting up a unit for

Wheat Starch, Gluten, Modified Starch and its by product by issuance of a letter of intent on

30.12.1999. Clause 19 of such letter contemplates that the allottee shall not carry on without the

written consent of the Corporation or permit to be carried on the plot or use the same or permit the

same to be used for any other purpose other than that for which it has been offered. In pursuance of

such condition in letter of allotment, respondent No. 5 has sought user thereof for the purpose of

distillery by representing that the alcohol shall be by product and the distillery shall conform to the

zero effluent/emissions discharge as per the norms of the Board. In pursuance of such

communication, respondent No. 4 has given in principal "No. Objection" in setting up distillery by

respondent No. 5 subject to their meticulous adherence of all norms and condition as applicable and

laid by the Board and Central Pollution Control Board, especially subject to discharge of effluents

after appropriate/prescribed pre-treatment as per norms of the Board. It is, thus, apparent that

respondent No. 5 has requisite consent to use the plot allotted for the purpose of distillery. The said

respondent has been granted permission to set up distillery for the reason that it is a zero

affluent/emission discharge project. The entire discharge is prepared to be evaporated as per the

project propounded by respondent No. 5. Still further, raw material to be used in the distillery will

be wheat grains instead of molasses traditionally used by the distilleries which are potentially more

pollution generating and cause odour problems.

12. Therefore, we do not find any merit in the second argument raised by the learned counsel for

the petitioner that respondent No. 5 cannot use the plot for the purpose of distillery.

13. The argument that the distillery should not be set up by respondent No. 5 near the residential

colony set up is again devoid of merit. Reliance is on the notification dated 20.1.1998 published by

the Board w herein it is stipulated t hat consent shall not be granted to any industry which proposes

to establish in any approved residential area/colonies developed by any Government agency such as

Punjab Urban Development Authority, Municipal Corporation and Improvement Trust etc. However,

the said argument is again not tenable for the reason that the unit has been set up in an Industrial

Growth Centre. After the plot was allotted to respondent No. 4, respondent No. 3 has carved out

residential plots. The unit is not sought to be established in residential area but in an Industrial

Growth Centre. Therefore, bar in the notification dated 20.1.1998 is not applicable. Since the

residential plots have been carved out after setting up of Industrial Growth Centre, the allottees

thereof cannot make a grievance of industrial activity being carried out in the said Industrial Growth

Centre. It may be noticed that it is the categoric case of the respondents that there is no

effluent/emission of any discharge nor the unit is using molasses for the purpose of distillery,

therefore, there is no cause of concern to the inhabitants of the residential area.

14. In view of the above, we do not find that the action of the respondent in granting "No Objection

Certificate" and/or Environmental clearance to respondent No. 5 suffers from any illegality or

material irregularity warranting interference by this Court in extra ordinary writ jurisdiction of this

Court.

Dismissed.

Equivalent Citation: 2005(3)ALD272, 2005(3)ALT779


WP No. 17440 of 2004

Appellants: Centre for DNA Fingerprinting and Diagnostic (An Autonomous Centre of the

Department of Biotechnology) Vs. Respondent: A.P. Pollution Control Board and Anr.:Decided On:

16.03.2005

Hon'ble Judges:

Devinder Gupta, C.J. and B. Seshasayana Reddy, J.

Counsels:

For Appellant/Petitioner/Plaintiff: P.B. Vijay Kumar, Adv.

For Respondents/Defendant: S.V. Bhatt, Adv. for Respondent No. 1 and Adv.-General for

Rrespondent No. 2


Catch Words:

Air Pollution, Biodiversity, Catchment Area, Damage, Domestic Sewage, Drinking Water,

Environmental Impact Assessment, Industrial Plant, Pollution Control, Precautionary Principle, Public

Interest, Sewage, Statutory Appeal, Sustainable Development, Trade Effluent

Acts/Rules/Orders:

Water (Prevention and Control of Pollution) Act, 1974 - Sections 2, 21, 25, 25(1), 25(3), 28, 33, 37

and 44; Air (Prevention and Control of Pollution) Act, 1981 - Sections 21, 22, 26, 31, 37 and 44;

Societies Registration Act; Industries (Development and Regulation) Act, 1951; Constitution of India -

Articles 32, 136 and 226; Water Rules - Rule 32; National Environmental Appellate Authority Act,

1997

Cases Referred:

A.P. Pollution Control Board v. Prof. M.V. Naidu, 1999 (2) SCC 718, 1999 (2) ALD (SCSN) 5; A.P.

Pollution Control Board v. Prof. M.V. Naidu and Ors., 2001 (2) SCC 62

Disposition:

Petition allowed

JUDGMENT

Devinder Gupta, C.J.

1 The petitioner is a Central Government autonomous body under the Ministry of Science and

Technology fully funded by the Government of India. It is a research laboratory established by the

Presidential sanction to apply the fruits of modern biology to serve the public with varied objectives.

It is a center for DNA Fingerprinting and Diagnostics (CDFD). On 6.8.1996 the petitioner applied to

the State of Andhra Pradesh for alienation of land Ac.10.15 in its favour to set up Center for DNA

Fingerprinting and Diagnostics at Hyderabad stating that the proposed centre will be first of its kind

in the entire world and will cater to the needs of the country besides functioning as centre of

excellence for International Scientists for study of biodiversity. It is also stated that eventually the

centre will be developed on the lines of Centre for Cellular and Molecular Biology (CCMB), which is

now considered a pioneer institute in the country and best in the world, which is housed in 14 acres

of land. The State Government considered the request of the petitioner and on 12.3.1996 accorded

sanction for alienation of ten acres of land in petitioner's favour in Survey No. 17/1 situate at

Himayatsagar Village, Moinabad Mandal, Rangareddy District. The petitioner thereafter commenced

setting up of its laboratory.

2. On 3.12.2002 a news item appeared in Deccan Chronicle that CDFD Laboratory being constructed

at the site would endanger Gandipet and Himayatsagar, the two water bodies that quench the thirst

of fifty lakhs and odd population of the twin cities. Newspaper clipping also high-lighted that setting

up of CDFD research facility is in violation of G.O. Ms. No. 111 dated 8.3.1996 issued by the State

Government banning any activity within 10 K.Ms. of full tank level of the water bodies.

3. On publication of the paper clipping aforementioned, the officials of the A.P. Pollution Control

Board (hereinafter referred to as "the Board") are stated to have inspected the proposed location of

the laboratory on 4.12.2002. It was noticed that Civil construction of the CDFD Laboratory was

almost complete but the infrastructure in the research laboratory was yet to be installed at the site

located adjacent to Osman Sagar lake at a distance of about 500 metres. As the research lab had not

taken any permission from the Board and had gone ahead with construction of the lab. Directions

were issued on 8.1.2003 to the petitioner under Section 33(a) of the Water (Prevention and Control

of Pollution) Act, 1974 (hereinafter referred to as the "Water Act") and Section 31 (a) of the Air

(Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as the "Air Act") to stop all

construction/ development activities with immediate effect. It was pointed out in the notice that as

per the provisions of Section 25/26 of the Water Act and Section 21/22 of the Air Act, it was

mandatory to obtain consent for establishment from the Board and thus there was violation of

Section 25 of the Water Act and Section 21 of the Air Act, which is punishable respectively under

Sections 44 and 37 of the Water Act and the Air Act.

4. The petitioner on receipt of notice appears to have stopped further activity and on 7.3.2003 filed

an application praying for the requisite consent for establishment. The petitioner in its application

pointed out that it was a society registered under the Societies Registration Act and the funding

department was of Department of Bio-technology, Ministry of Science and Technology, Government

of India. Being a Molecular Biological Laboratory, a very small quantity of routine chemicals will be

used and that solid waste will be collected in separate containers and disposed of by M/s. Bio

Medicare, specialized agency. The application of the petitioner was accompanied by Rapid

Environmental Impact Assessment (EIA) report prepared by the Centre for Environment Institute of

Post-Graduate Studies and Research, J.N.T.U., Hyderabad. The Board through its letter dated

22.3.2003 asked for certain clarifications which the petitioner duly conveyed to the Board on

4.4.2003 along with another revised rapid EIA report prepared by the same institute.

5. On 30.4.2003 with reference to the petitioner's application seeking consent for establishment of

Centre for DNA Fingerprinting and Diagnostic Laboratory, the petitioner was informed that

considering the orders of the Supreme Court dated 1.12.2000 in Civil Appeal Nos. 368-371/99 and

G.O. Ms. No. 111 dated 8.3.1996 prohibiting establishments that generate pollution in the

catchment of Himayatsagar and Osmanasagar lakes upto 10 K.Ms., full tank level, the Committee of

the Board feels that it would be inappropriate to approve the proposed site for location of the unit

on the ground that it falls within the prohibited area as per G.O.Ms.No. 111 dated 8.3.1996 and is

covered by the ban imposed by the Supreme Court. Petitioner was informed that the request for

grant of consent for establishment to the lab is rejected but only dry operations, such as computer

records, DNA printing and human resources development may be carried on in the area.

6. On 7.5.2003 revised application was submitted by the petitioner to set up dry operations

excluding wet operations, and on 30.5.2003 the Board subject to the conditions contained in

Schedules A & B of the order issued consent for establishment under Sections 25 of the Water Act

and 21 of the Air Act to undertake the following activities:

(I) DNA Profile Records and Analysis Facility

(II) Counselling and Consultations Services

(III) Bioinformatics Service Facility

(IV) Computer Center for TCS-CDFD Collaboration studies

(V) Centre of Excellence for Sun Micro Systems and AP Bionet Facility

(VI) Guest House

(VII) Scientist Apartment

(VIII) Single Room Quarters

(IX) Director Residence

(X) Hostel.

7. On 28.8.2003 the petitioner applied to the respondent-Board for re-consideration of its

application in view of the revised EIA report, which had been submitted to the Board on 4.4.2003

since the technical committee of the respondent-Board had met only on 9.4.2003 and had not

examined the revised EIA report. The petitioner in the application for re-consideration assigned

reasons that why it was entitled to the consent for establishment, both for dry as well as wet

laboratory operations, which are absolutely essential for conducting all activities of CDFD, as

planned originally. Again on 8.12.2003 same request was renewed after the petitioner drastically

reduced its operations and gave further reasons in support of its request. On 16.1.2004 the request

was turned down saying that the Board had examined the matter and decided to reiterate the stand

because of the Supreme Court decisions. Feeling aggrieved, the petitioner preferred statutory

appeal under Section 28(a) of the Water Act and Section 31 of the Air Act before the Appellate

Authority. The appeal was also dismissed on 31.5.2004 on the same grounds as were recorded by

the Board in its order. Still feeling aggrieved the petitioner has approached this Court questioning

the legality and validity of the orders passed by the Board as well as by the Appellate Court in having

rejected its application for setting up of the laboratory for dry and wet operations.

8. The orders impugned in the writ petition have been challenged on the ground that without

conducting any enquiry into the matter or examining the material already on record or applying

mind in a judicial manner the Board as well as the Appellate Authority have mechanically concluded

against the petitioner. The Appellate Authority without any lawful basis concluded that wet

operations lead to pollution of the water in the two lakes. The Appellate Authority also erred in law

in falling to consider that whether the Board had made due enquiry in terms of Section 25(3) of the

Water Act in respect of the petitioner's application for consent, which enquiry is mandatory. The

Appellate Authority also erred in not considering whether the petitioner is an industrial plant and

falls within the category of polluting industry or any other establishment in the catchment areas of

the lakes upto 10 K.Ms. full tank levels in terms of Paragraph 3(1) of GOMs.No. 111. It is also

petitioner's case that the respondents have mechanically taken a decision that absolute ban is

imposed by the Supreme Court in the two cases relied up on by the Board, viz., A.P. Pollution Control

Board v. Prof. M.V. Naidu, 1999 (2) SCC 718 = 1999 (2) ALD (SCSN) 5 and A.P. Pollution Control Board

v. Prof. M.V. Naidu and Ors., 2001 (2) SCC 62, conveniently called as "Surana's case No. 1 and

Surana's case No. 2" respectively. There was no application of mind by the respondents that the so-

called effluents would in any manner cause pollution or was sufficient or likely to cause water and

air pollution. Without such findings it was not permissible to the respondents to have rejected

petitioner's application.

9. The writ petition is opposed by the respondents on the ground that the decision has been taken

by the Board as well as the Appellate Authority within the parameters of law on due consideration of

the material available on record and on correctly applying G.O. Ms. No. 111 and the law laid down

by the Supreme Court. As such the orders are not liable to be interfered with by this Court in

exercise of its writ jurisdiction. CDFD is a highly chemical containment complex. The respondents'

case is also that the proposed activities of the petition will also generate water pollution, which is

supported on the basis of EIA report submitted by the petitioner as well as subsequent report

prepared by the National Environmental Engineering and Research Institute (NEERI) relied upon by

the petitioner. It was urged on behalf of the respondents that applicability of the Water and the Air

Acts is not dependent on treatability of the effluents as suggested in the report of NEERI now relied

upon by the petitioner. G.O. Ms. No. 111 dated 8.3.1996 and the decisions in Surana's cases are

based on precautionary principles. Any likely damage to water body from subject sources would be

irreversible and is likely to affect lakhs of people in twin cities. The Committee of the Board, having

gone through the reports submitted by the petitioner, formed an opinion that the proposed

activities are likely to generate water pollution, therefore, in terms of G.O. Ms. No. 111 and Surana's

cases permission cannot be accorded.

10. We have considered respective submissions of learned Counsel for the parties on legal aspects as

well as mertis of the case.

11. Primarily we are concerned with the Water Act and there is no involvement, for the time being,

of the Air Act. Section 25 of the Water Act, inter alia, provides that no person shall, without the

previous consent of the Board, establish or take any steps to establish any industry, operation or

process, or any treatment and disposal system or any extension or addition thereto, which is likely to

discharge sewage or trade effluent into a stream or well or sewer or on land. Application for consent

of the State Board under Sub-section (1) of Section 25 is to be made in Form 13 as provided under

Rule 32 of the Rules framed under the Act. On receipt of the application, the Board is required to

make such enquiry, as it may deem fit, in respect of the application for consent and in making such

enquiry is required to follow the procedure as may be prescribed. Grant of consent has to be subject

to certain conditions as the Board may impose as are provided for in Section 25(1) of the Water Act.

Refusal, if any, of consent has to be for reasons to be recorded in writing. Any person aggrieved by

the order made by the State Board is entitled to file appeal under Section 28 of the Act to the

Appellate Authority. The terms 'sewage effluent' and 'trade effluent' have been defined under

Clauses (g) and (k) respectively of Section 2 of the Act and combined together have been referred to

as 'discharge of sewage'.

12. One of the submissions made on behalf of the petitioner that since the CDFD is a research and

development organization and is not associated with production, manufacture or trade, thereof,

therefore, it will not fall within the term 'industry' and as such no consent is required to be obtained,

deserves outright rejection in view of the express language of Section 25, which prohibits any person

from establishing or taking steps to establish any industry, operation or process, or any treatment

and disposal system or any extension or addition thereto, which is likely to discharge sewage or

trade effluent into a stream or well or sewer or on land. It is not that only an industry would come

within the ambit but any other person would also fall within the ambit of Section 25 when his

activity by taking steps even for establishment of industry, operation or process or any treatment is

likely to have the effect of discharging effluent into a stream or well or sewer or on land.

13. We are of the view that only one of the points on which submissions were made on behalf of the

petitioner would be sufficient to dispose of this writ petition,

therefore, we need not go elaborately into the merits of the case. The said objection is that the

Board has failed to make any enquiry before taking its decision on the petitioner's application for

consent. After an application is filed the Board after making enquiry is also entitled to obtain further

information as it may deem fit in order to enable it to take appropriate decision in the matter. On

receipt of the application from the petitioner, the Board did ask for further information from the

petitioner. Further information as sought for was supplied by the petitioner, which fact is not in

dispute. Initially, Rapid EIA prepared by the Centre for Environmental Institute of Post-Graduate

Sciences and Research, JNTU, Hyderabad was submitted along with the application. But after the

information was sought and before decision was taken by the Board, it is the petitioner's case that

on 4.4.2003 Revised Rapid EIA prepared by the same Institute was submitted. This Revised

Environmental Impact Assessment Report dealt with different kinds and nature of waste and their

impact. According to the petitioner, this was not subjected to any enquiry by the Board since

decision was taken by the Board on 9.4.2003. Revised EIA had to be examined in detail by the

Technical Committee of the respondent-Board. Learned Standing Counsel for the Board informed us

that the Technical Committee of the Board comprises of seven members, who are experts in various

fields. It is only after the opinion of the Technical Committee is given, that the Board takes its

decision in the matter. After decision was conveyed to the petitioner on 28.8.2003, the petitioner

applied to the Board for re-consideration of its application in view of the revised EIA report

submitted on 4.4.2003 since as per the petitioner, it was not at all considered. On 8.12.2003 request

was further renewed and the petitioner pointed out that it has decided to reduce drastically its

operations and gave further reasons in support of its request. This request was turned down on

16.4.2004 saying that the Board has already examined the matter and decided to reiterate its stand

because of the decisions of the Supreme Court in Surana's cases. As per the stand taken by the

Board, the Revised EIA report dealing with dry operations was submitted by the petitioner only on

7.5.2003 and not on 4.4.2003 when consent for dry operations was issued by the Board on

30.5.2003. Representation was received from the petitioner only on 28.8.2003 to reconsider the

order by which the Board had accorded in principle permission for dry operation alone since

according to the respondent/Board it does not generate any pollution. The appeal was preferred by

the petitioner on 12.2.2004. It was dismissed on 31.5.2004. Writ petition was filed in this Court on

9.9.2004. Along with the writ petition, fresh Report on Establishment of Centre for DNA

Fingerprinting and Diagnostics prepared by the National Environmental Engineering and Research

Institute, Nagpur was submitted in support of the petitioner's case. Obviously, the Board had no

occasion to have it examined.

14. AS per the report submitted by the NEERI, the petitioner is a state-of-the-art ETP with zero

discharge establishment and does not quality as a pollution establishment. The petitioner is totally

environmental benign and cannot be categorized as an establishment or an industry belonging to

the red category that generate pollution within the ambit of G.O. Ms. No. 111. NEERI also asserts

that the Revised Rapid EIA report prepared by the Centre for Environment, Institute of Post

Graduate Studies and Research, JNTU, Hyderabad has also determined that the operation of the

petitioner does not cause any detrimental environmental impact on the environment in general and

to the two lakes in question in particular. The petitioner only envisages establishment of biological

containment laboratory (P3 level) which has all safety aspects internalized as per the international

norms making accidental escape of biological samples practically impossible. Even if there is an

escape, it is not going to pollute the lake as the pathogens proposed to be handled by the petitioner

are not at all water borne pathogens. NEERI has also made certain recommendations that keeping in

view of the sensitivity of the issue of establishment a laboratory within 10 KM of Gandipet lake,

following measures deserves to be taken:

"As per the information furnished by the CDFD and the Rapid EIA Report, CDFD is going to generate

76 cum of domestic sewage and 4 cum of laboratory effluent. In the proposed effluent treatment

plant, both these wastes will be mixed and 80 cum of waste mixed water is proposed to be treated

in the ETP. It is recommended that CDFD segregate 4 cum of laboratory waste and send this

wastewater to Pathancheri CETP for treatment and disposal. This will leave CDFD with only domestic

sewage, which can be easily recycled and reused for toilets and green belt development purposes

thereby achieving zero discharge from CDFD.

It is recommended that CDFD should not install incinerator within the proposed premises. The

incinerator, if at all required for incinerating dead animals from the animal house experiments and

hospital wastes be located at a place which is 10 KM away from the lake as the incinerator ash is

considered as hazardous. Alternatively, CDFD may contact an authorized agency in Hyderabad who

handles biomedical wastes and dispose the dead animals through that agency in an environmental

friendly manner".

15. Admittedly, this report of NEERI was neither considered by the respondent/ Board nor by the

Appellate Authority. They had no occasion to do so. Admittedly the Board only on the basis of what

was stated by the petitioner in its application and in its explanation to the queries of the

respondent/Board and the first Rapid EIA report of the Centre for Environment Institute of Post

Graduate Studies and Research, JNTU., Hyderabad came to the conclusion that the petitioner's

activities are likely to discharge sewage or trade effluent. Therefore, in terms of G.O. Ms. No. 111

and the decisions of the Supreme Court, the Board is within its right to reject the application and it is

not required to make any further enquiry into the matter as argued on behalf of the petitioner. Such

a stand taken by the Board in our view is not at all envisaged under the scheme of the Act. G.O. Ms.

No. 111 has to be read with G.O. Ms. No. 192 dated 31.3.1994 and G.O. Ms. No. 111 was also the

subject-matter of consideration before the Supreme Court in Sarana's cases.

16. In 1st Surana's case, M/s Surana Oil and Derivatives India Limited, hereinafter called the

Company, had been granted by the Government of India letter of intent under the Industries

(Development and Regulation) Act, 1951, inter alia on obtaining no objection certificate from the

respondent/board. The company applied to the respondent/board seeking clearance to set up unit

under the provisions of the Water Act. The company listed 'glycerin, spent bleaching earth and

carbon and spent nickel catalysts' as by-products of its process. The Pollution Control Board rejected

company's application mainly on the ground that the unit was a polluting industry, as was done in

the instant case, since it fell under the red category of polluting industries. The Appellate Authority

allowed the appeal and held the industry as non-polluting industry and directed the Board to give

consent for establishment. The High Court also upheld the Appellate Authority's order. The matter

was taken to Supreme Court by the Pollution Control Board and by others. In the first order in

Surana's case which was passed on 27.1.1999 the question arose whether the Supreme Court, while

dealing with the environmental matters under Article 32 or 136 or the High Courts under Article 226

of the Constitution, can make reference to National Environmental Appellate Authority for

investigation and opinion. Answering the said question in the affirmative, the Supreme Court, inter

alia, held that in the context of emerging jurisprudence relating to environmental matters it is the

duty of the Supreme Court as well as the High Courts to render justice by taking all aspects into

considerations. However, sometimes in such cases the Supreme Court has been finding sufficient

difficulty in providing adequate solutions to meet the requirements of public interest, environmental

protection, elimination of pollution and sustained development. The monitoring of a case as it

progresses before the professional authority and the consideration of objections raised by the

affected parties to the opinion given by the professional technical bodies have again been creating

complex problems. Therefore, with a view to ensure that there is neither danger to environment nor

to ecology and at the same time ensuring sustainable development, the Supreme Court held that the

scientific and technical aspects can be referred for investigation and opinion to expert bodies, such

like Appellate Authority under the National Environmental Appellate Authority Act, 1997. Any

opinion rendered by such authority would, of course, be subject to approval and such procedure can

be adopted in matters arising in Supreme Court as well as the High Court. In the said case, the

Supreme Court then referred the scientific and technical aspects to the National Environmental

Appellate Authority, viz., (a) Is the respondent-industry a hazardous one and what is its pollution

potentiality, taking into account the nature of the product, the effluents and its location? and (b)

Whether the operation of the industry is likely to affect the sensitive catchment area resulting in

pollution of the Himayat Sagar and Osman Sagar Lakes supplying drinking water to the twin cities of

Hyderabad and Secunderabad?. In addition the question whether the industry concerned may be

permitted to make trial runs was also referred for decision to the Appellate Authority.

17. On receipt of the reference, decision was rendered by the Supreme Court in 2nd Surana's case.

The Supreme Court critically examined the report of National Environmental Appellate Authority as

also three other expect bodies and disposed of the appeals relying upon the opinion rendered by the

Appellate Authority. The Supreme Court applied precautionary principle that the said principle

comes into play and it cannot rely upon a bare assurance of the petitioner that care will be taken in

the storage of serious hazardous materials and they would not be effectively removed without

spillage. The Supreme Court opined that it was humanly not possible to keep track whether the

pollutants are not spilled over. The Supreme Court went through the entire reports in detail and

further opined that it led to the inference that there is a very great risk that these highly hazardous

materials could seep into the earth and reach the tanks, after passing through the dolerite dykes, as

pointed out by the National Geophysical Research Institute. Thus, on the basis of the scientific

material obtained by the Court from the three highly reputed sources, it was held that it was not a fit

case for directing grant of no objection certificate by the Board. Needless to add that the Supreme

Court did not proceed to reject the application of the petitioner merely on the basis of GOMs.No.

111, that the petitioner was a polluting industry and there cannot be any establishment of polluting

industry within 10 K.Ms. from the water body.

18. The question before us now is whether we should or should not proceed to do the same exercise

as was done by the Supreme Court in Surana's case, especially when the Technical Committee of the

Board, which authority is empowered to make such enquiry as may be deemed fit in respect of such

application, has failed to take all aspects into consideration and has gone merely by the first report

submitted to it. In case one would go through the report submitted by the NEERI, one would be led

to assume that the decision of the primary authority is not in consonance with law. Moreover, the

technical committee of the respondent/board had no occasion to go through the said report. In such

a situation the course, which must be adopted, would be to remit the matter for reconsideration.

The Appellate Authority constituted under the Water Act, of course, would examine the legality and

validity of the order of the Board and the Board's decision is based upon the opinion of its Technical

Committee, which must examine the material relied upon by the petitioner critically and find out

whether high risks are or are not involved. When it has been opined by a reputed institute like NEERI

that it is zero polluting industry the case deserves to be re-considered objectively. On these technical

matters reliance has to be placed upon the expert bodies like the one whose reports were submitted

by the petitioner. Even in G.O. Ms. No. 111, JNTU, is one of the agencies recognized by the

Government who is to monitor periodically the level of different pesticides, fertilizers, etc., carried

into the lakes.

19. Resultantly, we will allow the writ petition, set aside the two orders impugned in the writ

petition and direct the respondent/ Board to consider afresh the application of the petitioner in

consonance with law after making due enquiry and calling for further information which the

respondent/ Board would like the petitioner to supply or the other material which the petitioner

would like to place before the Board. The respondent/Board will take its decision in accordance with

law as expeditiously as possible and in any case within a period of three months from the date of

receipt of writ order from the Court. No costs.

Equivalent Citation: 2005(3)AWC2970

IN THE HIGH COURT OF ALLAHABAD

Criminal Misc. Writ Petition No. 1600 of 2003

Appellants: Arvind Kumar Dube s/o Shri Parmeshwari Dayal Dube Vs.

Respondent: State of U.P. through Prescribed Authority/Special Secretary, Forest Department, U.P.

Govt. and Ors. Decided On: 17.03.2005

Hon'ble Judges:

Ravindra Singh, J.

Counsels:

For Appellant/Petitioner/Plaintiff: Brij Raj Singh, Adv.

For Respondents/Defendant: A.K. Singh Solanki, Adv. and A.G.A.

Subject: Criminal


Catch Words:

Accused, Act, Allegation, Appeal, Appellate Court, Arrest, Arrested, Authority, Bona Fide, Case,

Claimant, Commission, Concern, Condition, Confiscated, Custody, Damaged, Date, Detaining

Authority, Dispute, Driving, Finding, Forest Department, Forest Officer, Government, Ground,

Information, Offence, Offences, Officer, Order, Owner, Pass, Petition, Prescribed, Prescribed

Authority, Prosecution, Protection, Record, Register, Registered, Release, Secretary, Seized, Set

Aside, State, State Government, Wild Life, Writ, Writ Petition

Acts/Rules/Orders:

Forest Act - Sections 26 and 52; Wild Life Protection Act, 1972 - Sections 29, 39, 50 and 51; Wild Life

Protection (Amendment) Act, 1991

Disposition:

Petition allowed

JUDGMENT

Ravindra Singh, J.

1. Heard Sri Brij Raj Singh learned counsel for the petitioners, learned A.G.A. and Sri A.K. Singh

Solanki.

2. This petition is filed against the order dated 8.12.2002 , passed by the Up Van Sanrakshak/

Pradhikrit Adihkari, Rashtriya Chambal Sanctuary Project, Agra, whereby truck no. UP-84-2388,

Engine No. 692802371486 and Chassis No. 364046359759 was confiscated in favour of the State and

the order dated 11.3.2003 passed by the Pradhikrit Adhikari/Special Secretary, Van Vibhag, U.P.

Shasan in Appeal No. 01/4241-2003/405 (23) / 2003 filed by the petitioner was dismissed.

3. It is contended by the learned counsel for the petitioner that the petitioner is registered owner of

the abovementioned truck and there is no other claimant of the truck in dispute. It is contended by

the learned counsel for the petitioner that the truck of the petitioner was seized by the Forest

Officer on 6.8.2002 and the Driver of the truck namely Sugreev Singh was arrested by the Forest

Officer and he was challaned for the offences punishable under Section 26/52 Ka, Kha and Ga of the

Forest Act and Section 29, 39, 50 and 51 of the Wild Life Protection Act 1972 as amended in the year

1991. It is contended that the allegations of the prosecution is that wood of the forest was loaded on

the truck in dispute. Sugreev Singh the driver of the truck was driving the truck in dispute. He was

arrested and the truck was taken in custody by the Forest Officer. Subsequently, on 8.12.2004 it was

confiscated in favour of the State Government. It is contended by the learned counsel for the

petitioner that the petitioner is bona fide owner of the truck in dispute. He was having no knowledge

that the Driver was loading the truck of the wood which was of the forest department. Even the

prosecution has failed to establish that the petitioner was having the knowledge that his truck was

used in the abovementioned offence. The petitioner filed an appeal. The appellate court also did not

record any finding to show that the petitioner was having the knowledge that his truck was used in

the commission of the abovementioned offence. The appeal filed by the petitioner was dismissed on

the ground that the truck was involved in a very serious offence. It is further contended that, if the

truck in dispute is not released in favour of the petitioner it will be damaged, because it will not be

properly maintained by the detaining authority and the petitioner is ready to comply with the

condition imposed by the authority concerned.

4. In view of the facts and circumstances of the case and the submissions made by the learned

counsel for the petitioner and from the perusal of the record that it is clear that the petitioner is a

bona fide owner of the truck in dispute and at this stage the prosecution has failed to establish that

the petitioner was having knowledge that his truck was used in the commission of the

abovementioned offence and the petitioner himself is not accused in the abovementioned case. In

such circumstances it will be proper to release the truck in dispute in favour of the petitioner by

imposing certain necessary condition, so the Up Van Sarankshak/ Pradhkrit Adhikari, Rashtriya

Chambal Sanctuary Project, Agra is directed to release the aforementioned truck in favour of the

petitioner by imposing certain necessary conditions, which are required by the law.

5. Accordingly, both the abovementioned orders are set aside and the petition is allowed.

Equivalent Citation: AIR2005Mad304


Writ Appeal No. 723 of 2004 and W.A.M.P. Nos. 3026,3027, 4393 to 4395 and 1351 to 1353 of 2004

Appellants: The State of Tamil Nadu rep. by its Secretary to Government, Forest and Fisheries

Department and The Ranger, Gulf of Mannar Vs. Respondent: Kaypee Industrial Chemicals (P) Ltd.

rep. by its Managing Director and Ors.:Decided On: 29.03.2005

[Alongwith Writ Appeal Nos. 724 and 725 of 2004]

Hon'ble Judges:

Markandey Katju, C.J. and F.M. Ibrahim Kalifulla, J.

Counsels:

For Appellant/Petitioner/Plaintiff: V.S. Sethuraman, Spl. Govt. Pleader

For Respondents/Defendant: R. Thiagarajan, Sr. Counsel for Aiyar and Dolia in W.A. No. 725/04 for

Respondent No. 1 and V. Raghupathy, Govt. Pleader in W.A. No. 723/04 for Respondent Nos. 6 and 7

and in W.A. Nos. 724 and 725/04 for Respondent No. 3 and 4


Catch Words:

Certiorari, Damage, Deposit, National Parks

Acts/Rules/Orders:

Wild Life (Protection) Act, 1972 - Sections 2(1), 2(2), 2(31), 2(36), 9, 11, 12, 29(1), 35(6), 39, 49B and

61; Companies Act; Environment (Protection) Act, 1986; Wild Birds and Animals Protection Act, 1912

Disposition:

Appeal dismissed

JUDGMENT

Markandey Katju, C.J.

1. These three writ appeals have been filed against the common order in three writ petitions being

W.P. Nos. 26363 of 2001 and 1511 and 40350 of 2002 dated 30.04.2003.

2. Heard the learned counsel for the parties, and perused the records.

3. In all the writ petitions, the petitioners have prayed for a Writ of Certiorari to quash the

notification dated 11.7.2001 issued by the first respondent, Union of India, represented by its

Secretary, Ministry of Environment and Forests, New Delhi. By that notification, the Wild Life

(Protection) Act, 1972 (hereinafter referred to as 'the Act') has been amended by including various

species to the schedule. The species with which we are concerned are as follows: -

" Part IV A - Coelenterates

1.Reef Building Coral (All Scleractinians)

2.Black Coral (All Antipatharlans)

3.Organ Pipe Coral (Tubipora musica)

4.Fire Coral (All Hillipora species)

5.Sea Fan (All corgenians)"

4. The petitioner in W.P. No. 26363 of 2001 is a Company registered under the Indian Companies

Act. It is engaged in the manufacture of Lime. It was established in the year 1996. It is alleged in

paragraph-3 of the affidavit filed in support of the writ petition that on 08.10.2001, the Forest

Ranger, Gulf of Mannar National Harine Park/the fourth respondent, orally informed the writ

petitioners that all corals have been included in Schedule I, Part IV A of the Act. The said notification

issued by the Ministry of Environment and Forests warned of legal action under the Act against

purchase, transportation or use of any kind of coral.

5. It is alleged in paragraph-4 of the petitioner's affidavit that the petitioners are using a hard, white

calcareous substance called 'coral'. This coral is a lifeless substance which is secreted by marine

polyps (also called coral). When the marine polyps die due to various reasons, the secreted

calcareous lifeless substance breaks from the coral and falls on the sea floor, and the same is carried

away by sea currents and washed ashore. The same is collected by the fisherfolk, and are sold to the

petitioners for the manufacture of lime.

6. It is alleged that the coral reefs are protected by the formation of Gulf of Mannar National Marine

Park by G.O. Ms. No. 962, Fisheries and Forest Department dated 10.09.1986 issued by the State of

Tamil Nadu/second respondent. It is submitted that only the white calcareous substances, which are

washed ashore outside boundaries of the National Marine Park, are collected by the fisherfolk for

supplying the same to the lime factory. It is alleged that the notification dated 11.7.2001 issued by

the first respondent/ Union of India, is arbitrary and unreasonable, and it is liable to be quashed. It is

alleged that there is no life in the calcareous substance purchased by the petitioners. It is not a living

organism. Hence, it is alleged that it does not come within the purview of the Act. It is alleged that

the livelihood of the persons employed in lime industries have been affected on account of the

issuance of the impugned notification. It is alleged that the petitioners were not given opportunity of

hearing before issuance of the impugned notification.

7. A counter affidavit has been filed in the aforesaid writ petition, and we have perused the same. In

paragraph-4 of the counter affidavit, it is stated that corals are extremely slow growing and

sedentary organisms with only the tip bearing the live animals. These live corals secrete calcareous

substances around their bodies for protection from ocean currents. The status paper on coral reefs

of Gulf of Manner prepared by Zoological Survey of India indicates that the coral reefs and their

associates in Gulf of Mannar are under severe threat due to industrialization, pollution and mining of

corals by the local people. It is alleged that large scale exploitation of corals, fishes, and others has

driven many species to extinction in these islands. It is alleged that the corals are invariably collected

from the sea beds by breaking the natural attachment to the sub-stratum causing extensive

ecological damage to the whole eco system. It is alleged that this activity is illegal under the

provisions of the Act. It is alleged that the contention of the petitioners that the corals break away

from the reefs and are carried away from the sea currents and finally collected by the fishermen is

misconceived. The corals are mostly damaged by the trawlers that move inside the creeks for illegal

fishing and in turn damage the corals which are collected by the people for use as raw material by

the lime industry. It is alleged that these industries cannot sustain on incidentally broken corals

brought ashore with sea currents. Such a quantum can only be produced through exploitation. The

collection of corals and coral reefs for manufacture of lime is also a prohibited activity under the

Coastal Regulatory Zone Notification 1991, and invites penal action under the provisions of

Environment (Protection) Act, 1986. It is alleged that the corals are wild animals and form an integral

component of the marine ecosystem, and therefore the notification issued on 11.7.2001 comes

within the ambit of the Act. Corals, whether dead or alive, are the property of the Government.

Collection, possession and trade in such species is illegal.

8. Before dealing with the submissions advanced by the learned counsel for the parties, we may

refer to certain provisions of the Act.

9. The Preamble of the Act states: -

"An Act to provide for the protection of wild animals, birds and plants and for matters connected

therewith or ancillary or incidental thereto."

10. Section 9 of the Act states: -

" Prohibition of hunting: - No person shall hunt any wild animal specified in Schedules I, II, III and IV

except as provided under Section 11 and Section 12."

11. The word 'animal' is defined in Section 2(1) of the Act as follows: -

" 'animal' includes amphibians, birds, mammals and reptiles and their young, and also includes, in

the cases of birds and reptiles, their eggs".

12.Section 2(2) of the Act defines "animal article" as follows: -

" 'animal article' means an article made from any captive animal or wild animal other than vermin,

and includes an article or object in which the whole or any part of such animal has been used, and

ivory imported into India and an article made therefrom"

13. Section 2(36) of the Act defines " wild animal" as follows: -

" 'wild animal' means any animal found wild in nature and includes any animal specified in Schedule

I, Schedule II, Schedule III, Schedule IV or Schedule V, wherever found."

14. Section 39 of the Act states: -

" Wild animals, etc., to be Government Property - (1) Every -

(a) wild animal, other than vermin, which is hunted under section 11 or sub-section (1) of Section 29

or sub-section (6) of section 35 or kept or bred in captivity or hunted in contravention of any

provision of this Act or any rule or order made thereunder or found dead, or killed by mistake; and

(b) animal article, trophy or uncured trophy or meat derived from any wild animal referred to in

clause(a) in respect of which any offence against this Act or any rule or order made thereunder has

been committed;

(c) ivory imported into India and an article made from such ivory in respect of which any offence

against this Act or any rule or order made thereunder has been committed;

(d) vehicle, vessel, weapon, trap or tool that has been used for committing an offence and has been

seized under the provisions of this Act shall be property of the State Government, and where such

animal is hunted in a sanctuary or National Park declared by the Central Government, such animal or

any animal article, trophy, uncured trophy or meat derived from such animal, or any vehicle, vessel,

weapon, trap or tool used in such hunting shall be the property of the Central Government.

(2) Any person who obtains, by any means, the possession of Government property, shall, within

forty-eight hours from obtaining such possession, make a report as to the obtaining of such

possession to the nearest police station or the authorized officer and shall, if so required, hand over

such property to the officer-in-charge of such police station or such authorized officer, as the case

may be.

(3) No person shall, without the previous permission in writing of the Chief Wild Life Warden or the

authorized officer -

(a) acquire or keep in his possession, custody or control, or

(b) transfer to any person, whether by way of gift, sale or otherwise, or

(c) destroy or damage, such Government property."

15. Section 2(37) of the Act defines "wild life" as follows: -

" 'wild life' includes any animal, bees, butterflies, crustacea, fish and moths; and aquatic or land

vegetation which form part of any habitat"

16. Chapter VA of the Act relates to prohibition of trade or commerce in trophies, animal articles etc,

derived from certain animals. This chapter was inserted by Act 28 of 1986. Section 49B of the Act

states that on and after the specified date, no person shall commence or carry on the business of

dealings in trophies, animal articles, etc. derived from scheduled animals. Chapter VI of the Act deals

with prevention and detection of offences.

17. Section 61 of the Act permits the Central Government, if it is of the opinion that it is expedient so

to do, by notification add or delete any entry to or from any schedule. Thus, the impugned

notification has been issued under Section 61 of the Act, which specifically permits the Central

Government to add or delete any entry to or from any schedule.

18. By the impugned judgment, the learned single Judge has held that the inclusion of "Reef Building

Coral" in the schedule to the Act by the notification dated 11.7.2001 by itself does not authorize the

respondents to interfere with the business of the petitioners, who are only purchasing the "coral

reef" or outer skeleton of dead sea animal, which is washed ashore after the death of the reef

building coral. According to the learned single Judge, coral is a hard stony substance secreted by

certain colonial marine animals as an external skeleton typically forming large reefs. The learned

single Judge was of the view that the external skeleton of dead marine animals forming such reef by

itself cannot be considered as "Reef Building Coral". The learned single Judge held that reef is an

outer skeleton of the dead marine animal, which is severed from the dead animal and washed

ashore. Hence, the learned single Judge was of the view that it cannot be considered as "wild life" or

"wild animal" as defined in the Act.

19. As regards the submission of the learned counsel for the Forest Department that the sea-farers

catch the live animal by venturing into the sea and kill the animal by severing the external skeleton

reef from the animal and for that purpose action has been taken against the petitioners, the learned

single Judge was of the view that the authorities under the Act are not powerless to prevent the

persons violating the provisions of the Act. However, as stated above, the learned single Judge was

of the view that the Act does not authorise the respondents to interfere with the business of the

petitioners if they only purchase coral reef i.e., outer skeleton of dead sea animal, which is washed

ashore after the death of the reef building coral. We fully agree with the view taken by the learned

single Judge.

20. When we interpret and apply the provisions of the Wild Life Act, in our opinion, we must utilize

the Heydon's rule of interpretation (the mischief rule). In other words, we must see the mischief

which was prevailing before the said Act was enacted, and the reason why the said Act had to be

made. Obviously, the purpose of introducing the Wild Life (Protection) Act was that the wild life in

India was being destroyed by industrialization, poaching, etc. and it had to be protected so as to

preserve the ecological balance. Keeping this primary object of the Act, we cannot say that the

activities of the writ petitioners violate the provisions of the Act.

21. According to Collins Concise Dictionary, the word "coral" has two meanings : -

" (i) any of a class of marine colonial; and

(ii) the calcareous or horny material forming the skeleton of certain of these animals.

The word 'coral' also means "a rocklike aggregation of certain of these animals or their skeletons,

forming an island or reef."

22. In The Chambers Dictionary, the word 'coral' is defined as follows: -

" a rocklike substance of various colours deposited on the bottom of the sea formed from the

skeletons, mostly calcareous, of certain invertebrates of the classes"

It is also defined in the same dictionary as follows:-

" the invertebrates themselves"

23. In the New International Webster's Dictionary and Thesaurus, the word 'coral' is defined as

follows: -

"The calcareous skeleton secreted in or by the tissues of various, usually compound marine

coelenterates and deposited in various forms and colors. 2. These skeletons collectively 3. An animal

of this type."

24. In Concise Oxford Dictionary, the word "coral" has two meanings : -

" (i) A marine living organism and (ii) Secretion of the above living organism which is a calcareous

substance. The said calcareous substance is called "Coral Reef". This coral is a lifeless substance

which is secreted by marine polyps"

25. Thus the word "coral", as defined in the various dictionaries, has broadly two meanings: -

(i) A marine living organism; and

(ii) Secretions of the above living organism, which is a calcareous substance called 'Coral Reef",

which is a lifeless substance secreted by marine polyps"

26. It is contended by the writ petitioner that when the marine polyps die due to various reasons,

the secreted calcareous lifeless substance breaks from the coral reef base and falls on the sea floor

and the same is carried away by sea currents and washed ashore. The same is collected by fisherfolk

and are sold to the petitioners for manufacturing lime.

27. On the other hand, the stand of the respondents in the writ petitions (appellants herein) is that

the corals are collected from the sea beds by breaking the natural attachment to the sub-stratum

and the corals are mostly damaged by the trawlers that move inside the creeks for illegal fishing and

in turn they damage the corals which are collected by the people for use as raw material by the lime

industry.

28. Since there is a factual controversy on this point, it is not possible for us to decide the same in

writ jurisdiction. However, we are of the view that if the contention of the writ petitioner that when

the marine polyps die due to various reasons, and the secreted calcareous lifeless substance breaks

from the coral reef base and falls on the sea floor and the same is carried away by sea currents and

washed ashore on the coast, is correct, then in our opinion the Act does not apply to the same.

29. It may be noted that the expression "animal article" in Section 2(2) of the Act means "an article

made from any captive animal or wild animal". In our opinion, the word 'made' used in the definition

denotes the process involving human effort. Hence if the stand of the writ petitioner that secreted

calcareous substance breaks from the coral reef base on its own and falls on the sea shore is correct,

then obviously it cannot be called 'animal article', because it was not made by human effort.

30. It may be noted that the definition of 'animal' in Section 2(1) of the Act includes only living

organisms. The coral reef fragments being a calcareous substance cannot be included in the

definition of 'Wildlife' or 'Wild Animal' by any stretch of imagination.

31. Learned counsel for the writ petitioner submitted that the 'coral reefs' survive only in calm,

shallow and clear water where there is sufficient sunlight penetration for photosynthetic activity by

the symbiotic algae present in the coral polyps to sustain their basic food energy needs of both.

Once the symbiotic algae are killed due to unavailability of sufficient light and rise in sea

temperature, the coral polyps also perish subsequently. Once the coral is dead, the calcareous

secretion later gets bleached, becomes vulnerable to bacterial attacks and gets weakened in due

course. They are further damaged by the changed ambient physio-chemical conditions.

Subsequently, bits are broken off from the base of the calcareous rocks (Coral reefs) by waves,

currents, streams of tidal force etc. and carried further away from the original habitat and becomes

a waste calcareous material on the seashore. It is true that corals when alive are part and parcel of

the coral calcareous substance and hence the living and non-living parts of the corals are

inseperable. However, once the symbiotic algae and polyps are dead, what remains is the chemical

calcareous substance having been secreted by the polyps. When these calcareous substance are

washed away into a new altogether different inter-tidal environment, the adjective either living or

nonliving cannot be attached to these substances. It is akin to substances like fallen hair, waste nail

clippings of human beings, etc. As a matter of fact, once the coral polyps die, due to natural

phenomenon like high sea temperature and pollution, the calcareous substance secreted by it gets

washed ashore. The petitioners do not indulge in any mining activities to collect the same. The

activities carried on by the respondents herein do not result in destruction of any habitat. Only the

coral reef fragments, which are washed ashore by sea currents, are collected by the respondents

herein.

32. We agree with the learned counsel for the writ petitioners (respondents in these appeals) that if

the factual averments in the petition are correct Sections 2(1) and 2(2) of the Act will not be

applicable to the coral reef fragments which the petitioners are using, since the same are not living

organisms at all.

33. Learned counsel for the writ petitioners submitted that the coral reef fragments collected by the

respondents/writ petitioners for the manufacture of lime will not in any way affect the fish

production nor will the collection of the reefs endanger the betterment of the people who depend

on the marine eco system for their livelihood and that as long as the coral reef fragments are utilised

for the purpose of manufacturing of lime without affecting the natural habitat, it is not open to the

appellants to prevent the respondents from collecting the calcareous substance, since the coral reef

fragments are broken bits of coral reef which are washed ashore by sea currents, and therefore no

destruction of wildlife habitat is done by the respondents/writ petitioners.

34. Learned counsel for the writ petitioners also submitted that the collection of calcareous

substance is also beneficial to the fisherfolks in as much their services are utilised for collecting the

same and therefore, the interest of fisherfolks in particular and that of the public at large is

protected.

35. Learned counsel for the writ petitioners further submitted that once the marine living organism

coral dies on account of global warming, discharge of hotwater into the sea by the Tuticorin Thermal

Power Station etc., the dead marine living organism coral is attacked by bacteria and eaten away,

and after eating away the coral, the bacteria bores into the secreted calcareous substance thereby

weakening it and the same gets broken by tidal waves and the broken substance which falls on the

sea floor are carried away by the sea current and the same reaches the sea shore and once the dead

organism is eaten away, the secreted portion will break.

36. Learned counsel for the writ petitioners then submitted that they do not go to the coral island

for collecting the coral reef fragment and they collect only the washed ashore material which gets

carried away on account of natural phenomenon like sea currents. Further the respondents herein

do not indulge in any act that would damage the coral reef. As already stated, the petitioners use

the secreted calcareous substance which is washed ashore. It is submitted by the learned counsel

that the coral reef fragment is not an animal trophy. As per Section 2(31) of the Act, Animal trophy

would include hair, feather, bones, shell etc. As already stated, the coral reef fragments are

secretions of coral which are calcareous substances and the same will not come under the purview

of Sections 2(31) and 39(b) of the Act since secretions are not specifically included in the definition

of animal trophy and it is also submitted that coral reef fragments are not wildlife trophy since

secretions of wildlife is not specifically included in the definition of wildlife trophy. It is also

submitted that the removal of the coral reef fragments from the sea shore will not in any way affect

the live corals. It is contended that the appellants are not right in stating that the coral reefs are

removed by mining process.

37. Lastly it is submitted by the learned counsel that the removal of coral reef fragments will not in

any way affect the complex interplay between physical, chemical, faunal and floral elements in the

near shore systems and such averments are made with a view to prejudice the mind of this Court to

show as if the respondents are causing damages to the natural habitat.

38. We are in entire agreement with the view of the learned counsel for the writ

petitioners/respondents that the activities carried on by them, if factually correct, do not violate any

of the provisions of the Act.

39. We have already noted above that the word 'coral' can have two meanings i.e., (i) a marine living

organism; and (ii) secretions or dead outer skeleton of the said living organism. In our opinion, the

items mentioned in the notification dated 11.07.2001 only refer to the living marine organism, and

not the dead secretions, being the outer skeleton of the dead sea animal. Hence, the second

interpretation of the word 'coral' does not, in our opinion, come within the ambit of the impugned

notification dated 11.07.2001. In our opinion, the interpretation which we are taking will be in

consonance with the aims and objects of the Wild Life Protection Act. As already stated above,

Heydon's rule of interpretation (the mischief rule) has to be applied in this case, and we have to see

the mischief which was sought to be rectified by the law. That mischief is stated in the Statement of

Objects and Reasons of the Wild Life Protection Act, 1972.

40. The Statement of Objects and Reasons state: -

" The rapid decline of India's wild animals and birds, one of the richest and most varied in the world,

has been a cause of grave concern. Some wild animals and birds have already become extinct in this

Country and others are in the danger of being so. Areas which were once teeming with wild life have

become devoid of it and even in Sanctuaries and National Parks the protection afforded to wild life

needs to be improved. The Wild Birds and Animals Protection Act, 1912 (8 of 1912) has become

completely outmoded. The existing State laws are not only out-dated but provide punishments

which are not commensurate with the offence and the financial benefits which accrue from

poaching and trade in wild life produce. Further, such laws mainly relate to control of hunting and do

not emphasise the other factors which are also prime reasons for the decline of India's wild life,

namely, taxidermy and trade in wild life and products derived therefrom.

Having considered the relevant local provisions existing in the States, the Government came to the

conclusion that these are neither adequate nor satisfactory. There is, therefore, an urgent need for

introducing a comprehensive legislation, which would provide for the protection of wild animals and

birds and for all matters connected therewith or ancillary and incidental thereto."

Thus, the object of the Act was to protect wild life in this country which was in the danger of

becoming extinct, thereby disturbing the ecology of the environment.

41. In our opinion, therefore, it is not necessary to give a wider definition of the word 'coral" (so as

to include both the meanings of the word 'coral') to sub serve the purpose of the Act. In this way by

giving a narrower meaning of the word 'coral' we will be striking a balance, and not interfere with

the livelihood of a large number of people, who depend upon gathering such dead coral and selling

them.

42. In our opinion, the learned single Judge has taken a correct view and hence it is not necessary to

strike down the impugned notification, but instead it has to be interpreted in the manner suggested

by the learned single Judge.

43. We, therefore, make it clear that as long as the writ petitioners do not catch and kill alive animals

by severing their external skeleton, but only purchase the coral reef being the outer skeleton of the

dead sea animal, which is washed ashore after the death of the reef building coral, the authorities

have no right to interfere with the activities, as they do not violate the provision of the Act.

44. With these observations, the writ appeals are dismissed. No costs. Consequently, W.AM. Ps are

also dismissed.

Equivalent Citation: 2005(4)ALD61, 2005(3)ALT533


Writ Petition No. 22052 of 2004

Appellants: J.K. Johnson and Ors. Vs. Respondent: Principal Chief Conservator of Forests and Ors.:


Hon'ble Judges:

V. Eswaraiah, J.

Counsels:

For Appellant/Petitioner/Plaintiff: B. Nalin Kumar, Adv.

For Respondents/Defendant: G.P.


Catch Words:

Accused, Act, Animal, Any Order, Any Person, Appeal, Article, Authority, Bearing, Case,

Compensation, Compensation Amount, Compounding, Compounding Of Offence, Condition,

Conduct, Convicted, Conviction, Cost, Criminal Court, Criminal Proceeding, Criminal proceedings,

Custody, Date, Dead, Departmental, Departmental Proceeding, Destruction, Direction, Discharge,

Enquiry, Filing, Fine, Forest Department, Forfeiture, Forthwith, Further Proceeding, Good, Goods,

Government, Government Pleader, Government Property, Guideline, Guidelines, Ignorance,

Imposition, Imprisonment, In Connection With, Information, Issue, Legal, Meeting, Nature, Offence,

Offences, Office, Order, Owner, Panchanama, Pass, Payment, Payment Of Compensation, Penalty,

Period, Permit, Person, Petition, Pleader, Prescribed, Presumption, Prima Facie, Principal, Procedure,

Proceeding, Proceedings, Property, Purchase, Reason, Register, Registered, Release, Report, Seized,

Seized Article, Seized Goods, Seizure, Self-Defence, State, Statement, Trial, Two Persons, Valid, Valid

Permit, Vehicle, Vehicles, Verification, Vessel, Wild Life, Writ, Writ Petition

Acts/Rules/Orders:

Wild Life (Protection) Act, 1972 - Sections 9, 39(1), 51(2) and 54

Disposition:

Petition allowed

ORDER

V. Eswaraiah, J.

1. The Conservator of Forests, Nizamabad Circle, Nizamabad (2nd respondent) by his proceedings in

POR No. 38/C/2004-05 dated 25-7-2004, Office file No. 4178/2004/M1, dated 10-8-2004, while

compounding the offence on payment of compensation of Rs. 25,000/-, forfeited the vehicle jeep

No. AP 12 D 703 and two riffles of the petitioners to the State under Section 39 (1)(d) of Wild Life

(Protection) Act, 1972 and the third petitioner, who is the owner of the said vehicle, was informed

that the said vehicle has been forfeited to the Government vide proceedings of the Conservator of

Forests, Nizamabad Circle, dated 4-10-2004 in Rc. No. 4178/2004/MI(i). Against the said orders, the

first petitioner filed an appeal before 1st respondent-the Principal Chief Conservator of Forests,

which was dismissed by his order dated 9-10-2004 in RC No. 3634/2004/WL-4. Questioning the

aforesaid orders forfeiting the vehicle and two riffles to the State, the present writ petition has been

filed.

2. Heard the Counsel appearing for the petitioners as well as the learned Government Pleader for

Forests appearing on behalf of the respondents.

3. The brief facts that led to filing of the present writ petition are as follows:-

On the intervening night of 24/25-7-2004 the S.I. of Police-third respondent along with other

constables was checking the vehicles at Pothamsettipalli X Roads. In the course of his check, he

stopped a jeep bearing No. APR 12 D 703 coming from Medak side checked and found one gunny

bag tied on the front side bumper of the jeep. On enquiry and on verification of the gunny bag he

found hunted and killed one forest pig in one bag and the three rabbits in another bag. The carcass

of the said forest pig, three rabbits along with 2 riffles were seized under the cover of Panchanama.

Then, he registered a case in crime No. 43 of 2004 under Section 9 of Wild Life (Protection) Act,

1972. The jeep was not at all seized under the cover of Panchanama. But what was seized are only

the carcass of the forest pig and 3 rabbits along with 2 riffles. The petitioners were taken into

custody. Thereafter, the petitioners have requested to compound the offence and accordingly a

statement was taken from the petitioners on the same day i.e., 25-7-2004 in which they have stated

that they went to Sangareddy town for attending the Telangana meeting and they dropped one P.

Kishta Goud in Kolcharam village and proceeded. On the way, they met two persons possessing one

forest pig and rabbits in a gunnybag. They only purchased the said animals but not hunted them. The

weapons, which they were holding, are only meant for their self-defence and they are having valid

permits to hold the same. Accordingly, they pleaded ignorance of the legal consequences in

purchasing the said dead animals and requested to excuse them and to compound the offence by

imposing any penalty.

4. In view of the compounding statement given by the petitioners, the Conservator of Forests,

Nizamabad Circle, Nizamabad by his proceedings No. 4178/2004/M1 dated 10-8-2004 compounded

the offence and ordered to pay a sum of Rs. 25,000/- towards compensation. Further, while

compounding the said offence, a condition was imposed in the said order stating that on payment of

the compensation amount in full, the seizures detailed namely vehicle No. AP 12 D 703 and (2) riffles

shall be forfeited to the State under Section 39(1)(d) of the Wild Life (Protection) Act, 1972. Hence,

the writ petition.

5. Learned Counsel for the petitioners submits that once the offence has been compounded under

Section 54 of the Wild Life (Protection) Act, 1972, by way of imposition of compensation in respect

of the offence from the persons who have been suspected to have committed an offence and on

payment of such sum of money, the suspected persons, if in custody, shall be discharged and no

further proceedings in respect of the offence shall be taken against such persons. He further submits

that in respect of the offence in question, as there is no minimum period of imprisonment

prescribed and for such offence the maximum period of imprisonment that can be extended is upto

3 years or can be imposed only fine and therefore the authorities have compounded the offence in

question. The learned counsel for the petitioners also submits that once the offence is compounded,

it is not open for the respondents to confiscate the seized goods. Hence, he sought the direction for

release of the seized articles.

6. On the other hand, the learned Government Pleader appearing for the respondents submits that

under Section 39(1)(d) of Wild Life (Protection) Act, 1972, every vehicle, vessel, weapon, trap or tool

that has been used for committing an offence and has been seized under the provisions of this Act,

such property cannot be released in any circumstances unless the Chief Field Warden passes any

order for release of the vehicle. Hence, the writ petition does not sustain.

7. The S.I. of Police in the presence of mediators seized the carcass of one forest pig and three

rabbits and took the petitioners, who were accused in the said crime, into his custody. A reading of

the crime report and the seizure Panchanama, discloses that, prima facie, the petitioners were

suspected to have committed the said crime, which is serious in nature, under Wild Life (Protection)

Act. It is also to be observed that the respondents without making any enquiry and without stating

anything whether the offence committed by the petitioners relates to such offence, where the

minimum imprisonment is prescribed or not, compounded the offence and hence it appears that

there are lapses on the part of the compounding authority in compounding the offence. Whatever

may be reasons for compounding the offence, unless the case is tried and the accused are convicted

by the Criminal Court, there is no possibility of-confiscating the seized goods under Section 39(1)(d)

of the Act. The compounding of offence is only against the persons, but not against the seized goods.

Once the offence against the person is compounded by imposing the compensation, it cannot be

said that there is a conviction enabling the Forest Department to treat the seized goods as

Government property. There cannot be any automatic presumption to treat the seized goods as

Government property unless there is trial and conviction in the criminal proceedings or in the

departmental proceedings conducted by the authorities. Therefore, I am of the opinion that unless

there are specific guidelines issued by the Chief Conservator of Forests, it is not just and proper for

the respondents to compound such kind of offences, which are serious in nature, which will also

encourage destruction of wild life.

8. Admittedly, there is no procedure contemplated for the forfeiture of the vehicle, vessel, weapon,

tool etc. The only procedure contemplated under Section 51 (2) of the Act is that when any person is

convicted of an offence against this Act, the Court trying the offence may order for forfeiture of the

vehicle, vessel, weapon, trap or tool that has been used in connection with the said offence to the

State. Admittedly, there is no trial or conviction that has been made in the instant case. The

respondents have liberally compounded the offence. Since the offence has been compounded

without there being any trial either in the departmental proceedings or in the criminal proceedings, I

am of the opinion that the said vehicle and riffles cannot be forfeited.

9. For the aforesaid reasons, the writ petition is allowed and the respondents are directed to release

the said vehicle and riffles of the petitioners forthwith. No costs.

Equivalent Citation: 2005(3)KLT190


W.A. Nos. 2062/03 and 76/04 and W.P.(C) Nos. 27842 and 35877 of 20

Appellants: Malayath Vs. Respondent: State of Kerala :Decided On: 06.04.2005

Hon'ble Judges:

K.S. Radhakrishnan, Ag. C.J. and Thottathil B. Radhakrishnan, J.

Counsels:

For Appellant/Petitioner/Plaintiff: P. Chandrasekhar, Adv.

For Respondents/Defendant: K. Lakshmi Narayanan, Government Pleader, Babu Joseph

Kuruvathazha and Saju J. Vallyara, Advs.

Subject: Motor Vehicles


Catch Words:

Agreement, Air Quality Standard, Ambulance, Carriage, Damage, Date Of, Discharge, Disease,

Exhaust Gas, Fundamental Right, Health, Identification, Information, Inspection, Jurisdiction, Motor

Vehicle, Motor Vehicles Department, Noise Pollution, Officer, Owner, Pedestrian, Pollution Control,

Prohibition, Quality Standard, Registering Authority, Regulation, Restriction, Revision, Signal, Stage

Carriage, Statutory Provision, Transport, Transport Commissioner, Welfare

Acts/Rules/Orders:

Environment (Protection) Act, 1986 - Section 120(2); Motor Vehicles Act, 1988 - Section 208; Bureau

of Indian Standards Act, 1986; Noise Pollution (Regulation and Control) Rules, 2000 - Rule 3 and 3(1);

Central Motor Vehicles Rules, 1989 - Rules 119 and 120(2); Central Motor Vehicles (Amendment)

Rules, 1999 - Rule 120; Constitution of India - Article 19(1); Environmental Protection Law;

Environmental Protection Rule; Environmental Protection Regulation

Cases Referred:

Church of God v. K.K.R. Majestic Colony Welfare Association, 2000 (3) KLT 651 (SC); Neelakandan

Namboodiri v. State of Kerala, 2004 (1) KLT 335, ILR 2004 (1) Ker. 634; Inco Europe Ltd. v. First

Choice Distribution (a firm), (2002) 2 All ER 109

JUDGMENT

K.S. Radhakrishnan, Ag. C.J.

1. The necessity of enforcing the provisions of the Noise Pollution (Regulation and Control) Rules,

2000 issued under the Environment (Protection) Act, 1986 was highlighted by the Apex Court in

Church of God v. K.K.R. Majestic Colony Welfare Association, 2000 (3) KLT 651 (SC). Rule 3(1) of the

Noise Pollution (Regulation and Control) Rules, 2000 provides for the ambient air quality standards

in respect of noise for different areas/zones as specified in the Schedule annexed to the Rules.

Responsibility as to the enforcement of noise pollution control measures has been narrated therein.

So also, its consequences. The principle laid down by the Apex Court was followed by a Bench of this

Court in W.A.3125 of 2001 and the following directions were issued.

"We, therefore, dispose of the Writ Appeal and the Original Petition by directing the State of Kerala,

the first respondent, to take necessary steps to identify the zones and generally to fulfil all the

requirements of Rule 3 of the Noise Pollution (Regulation and Control) Rules, 2000 within six months

from this date. The defined authority under the Rules will, thereafter, be entitled to consider the

application for use of loud speakers and permit them strictly in terms of the said Rules and the

identification of the zones. The State and the authorities under it, including the Pollution Control

Board, will continue to enforce the directions issued by the Deputy Inspector General of Police in the

Circular dated 22.7.2000 until the required exercise under the Noise Pollution (Regulation and

Control) Rules, 2000 is undertaken by the State Government.

It is a matter of serious concern that Environmental Protection laws are not properly implemented

and/or enforced by the various authorities and officers of the State including the Pollution Control

Board. The State Government is directed to ensure that its officers, the Local Authorities and the

Pollution Control Board strictly implement the Environmental Protection Laws, Rules, Regulations

and notifications and to take strong action against those who do not implement them strictly and in

consonance with the spirit of such laws".

World Health Organisation in its report on human health has stated as follows:

"Prolonged or excessive exposure to noise, whether in the community or at work, can cause serious

permanent medical conditions like hypertension and ischemic heart disease. Noise can adversely

affect performance, for instance reading, attentiveness, problem solving and memory".

Motor vehicles fitted with horn is always a menace to the travelling public as well as pedestrians and

people residing on either side of the roads. Driver may be enjoying the use of air horns. Vehicles

fitted with air horn would get the pedestrians off the road, at times caused danger to the life of the

pedestrians. Use of air horn may cause severe physiological and psychological impacts on the

pedestrians: Deafness is the last stop of noise and can damage the eardrum. Legislature has thought

of illeffects of such use of air horns and has introduced Rule 119 to Central Motor Vehicles Rules,

1989 which is extracted below for easy reference.

"119. Horns:-- (1) On and after expiry of one year from the date of commencement of the Central

Motor Vehicles (Amendment) Rules, 1999, every motor vehicle including a construction equipment

vehicle and agricultural tractor manufactured shall be fitted with an electric horn or other devices

conformed to the requirements of IS: 1884-1992, specified by the Bureau of Indian Standards for use

by the driver of the vehicle and capable of giving audible and sufficient warning of the approach or

position of the vehicle.

Provided that on and from 1st January, 2003, the horn installation requirements shall be as per AIS-

014 specifications, as maybe amended from time to time, till such time as corresponding Bureau of

Indian Standards specifications are notified.

(2) No motor vehicle including agricultural tractor shall be fitted with any multi-toned horn giving a

succession of different notices or with any other sound-producing device giving an unduly harsh,

shrill, loud or alarming noise.

(3) Nothing contained in Sub-rule (2) shall prevent the use on vehicles used as ambulance or for fire-

fighting or salvage purposes or on vehicles used by police officers or operators of construction

equipment vehicles or officers of the Motor Vehicles Department in the course of their duties or on

construction equipment vehicles of such sound signals as may be approved by the registering

authority in whose jurisdiction such vehicles are kept".

Rule 120 of the Rules says that every motor vehicle shall be fitted with a device so as to reduce as far

as practicable, the noise that would otherwise be made by the escape of exhaust gases from engine.

Section 120(2) deals with noise standards which reads as follows:

"(2) Noise standards:-- Every motor vehicle shall be constructed and maintained as so to conform to

noise standards specified in Part E of the Schedule VI to the Environment (Protection) Rules, 1986,

when tested as per IS: 3028-1998, as amended from time to time".

To give effect to those statutory provisions the Transport Commissioner issued Circular No. 19/2003

which reads as follows:

"Sub: M.Vs.-- Banning of digital airhorns - enforcement of Rule 120(2) of CMV Rules -

Ref: This office letter No. C1-10293/TC/98 dated 28.9.1998 and (2) C1-15752/TC/2002 dated

3.9.2002.

Inspite of repeated instructions about banning of air horns capable of producing noise exceeding the

noise standards prescribed by rules, many complaints are being received from the public regarding

the nonimplementation of the provisions contained in Rule 120(2) of CMV Rules, prescribing the

noise level from various class of vehicles.

It is laid down in Rule 120(2) of CMV Rules that every motor vehicle shall be constructed and

maintained as to conform to noise level indicated in the table appended with the Rules, and their

standards shall be tested as per Indian Standards (IS: 3028-1998). According, to the table maximum

noise from a motor vehicle is 91 d(B)A.

The permitted level of sound of different classes of vehicles is given below:

(i)�� Two

wheelers��

�� 80dB(A)

(ii)� All Passenger Cars, Petrol driven 3 wheelers and

�� diesel two

wheelers��

82dB(A)

(iii) Passenger or light Commercial Vehicles including

�� 3 wheeled vehicles fitted with diesel engine/gross

�� vehicle weight upto 4000

Kgs.�� 85dB(A)

(iv)� Passengers or Commercial Vehicles above 4000 Kgs.

�� and upto 12,000

Kgs.�� 89dB(A)

(v)�� Passengers or Commercial Vehicles with gross vehicle

�� weight above 12,000

Kgs.�� 91dB(A)

All the concerned officers are once again directed to take stringent action against the vehicle

owners, who violate the provisions, the use of multi toned horns exceeding the noise level

prescribed by Rule. Action taken report should be sent to Transport Commissioner (quarterly). In

doubtful cases the equipment available with the Pollution Control Board regional officers may be

used to test the noise level or insist on production of certificate of proof of the noise level of the

horn by the manufactures.

The receipt of the circular should be acknowledged.

Sd/-

Transport Commissioner".

Appellants in W.A.2026/03, W.A.76/04 and petitioner in W.P.(C). 35877/04 are aggrieved by the

above mentioned circular and also the action taken by the police. They have sought for a declaration

that the prohibition on the user of air horns by stage carriages imposed by the respondents is

without jurisdiction, ultra vires and is unreasonable restriction imposed on the fundamental rights

guaranteed to the petitioners to carry on their business. They also contend that the procedure laid

down under Section 208 of the Motor Vehicles Act, 1988 does not empower the police to issue

summons requiring appearance before the Judicial Magistrate.

2. Learned Single Judge repelled those contentions and gave a positive direction to the police and

Transport Authorities to ensure that effective and appropriate action is taken forthwith to abate

noise pollution. Judgment is reported in Neelakandan Namboodiri v. State of Kerala, 2004 (1) KLT

335 = ILR 2004 (1) Ker. 634. Learned Judge has elaborately considered the various provisions of the

Motor Vehicles Act as well as the provisions of the Environment (Protection) Act, 1986 and the Noise

Pollution (Regulation and Control) Rules, 2000. We do not propose to reiterate those findings with

which we fully concur. We may all the same point out in Rule 119 of Central Motor Vehicles Rules

reference is made to IS: 1884-1992. We have called for the Indian Standard Specification published

by the Bureau of Indian Standard (Third Revision) and found the Indian Standard Automotive

Vehicles - Electrical Horns -- Specification is IS 1884 : 1993. We notice a drafting error in the rule,

when it is stated the IS mark as IS 1884: 1992. Once the Court finds that it is drafting error, it is the

constitutional duty of the Court to discharge its interpretative function by substituting the words and

omit the wrong provision or words. The Legislature and the Court would function in unison to

achieve the Legislative intention. Reference may be made to the decision of House of Lords in Inco

Europe Ltd. v. First Choice Distribution (a firm) (2002) 2 All ER 109. Before carrying out the exact

words, generally the Courts should be sure of three matters: (1) the intended purpose of the statute

or provision in question, (2) that by inadvertence the draftsman and Parliament failed to give effect

to that purpose in the provision in question; and (3) the substance of the provision Parliament would

have made, although not necessarily the precise words Parliament would have used, had the error in

the Bill been noticed.

3. The Indian Standard is adopted by the Bureau of Indian Standards, after the draft finalized by the

Automotive Electrical Equipment Sectional Committee had been approved by the Transport

Engineering Division Council. The use of Standard Mark is governed by the provisions of the Bureau

of Indian Standards Act, 1986 and the Rules and Regulations made thereunder. The Standard Mark

on products covered by an Indian Standard conveys the assurance that they have been produced to

comply with the requirements of that standard under a well defined system of inspection, testing

and quality control which is devised and supervised by Bureau of Indian Standards and operated by

the producer. Standard marked products are also continuously checked by Bureau of India Standard

for conformity to that standard as a further safeguard.

4. Electric horns and air horns are conceptionally different. Rules enable the manufacturer to install

electric horn and not air horn in conformity with the requirements of IS 1884 : 1993. The

manufacturer can install only electric horn and other fittings in the vehicle in conformity with the

requirements of IS 1884 : 1993. Air horn is therefore not legally permitted by the Motor Vehicles

Rules. We are therefore in agreement with the learned Single Judge that there is no infirmity in Rule

119 of the Central Motor Vehicles Rules, 1989." Petitioners who are private operators have no legal

right to use air horns, they have to operate vehicles only fitted with electric horn in strict conformity

with IS 1884 - 1993. The Standards prescribed is only regulatory and would not affect the

fundamental right guaranteed to the petitioner under Article 19(1)(g) of the Constitution of India to

carry on their trade or business. We also endorse the view of the learned Single Judge that such a

provision is in conformity with the provisions of the Environment (Protection) Act, 1986 and the

Noise Pollution (Regulation and Control) Rules, 2000.

Writ Appeals and Writ Petitions are disposed of as above.

Equivalent Citation: AIR2005Delhi334, 121(2005)DLT674, 2005(82)DRJ298

IN THE HIGH COURT OF DELHI

W.P.(C) Nos. 18450/2004 and 3436/2005

Appellants: Jackson and Company Vs. Respondent: Union of India (UOI) and Anr. WITH Appellants:

Manoj Gupta Vs. Respondent: Central Pollution Control Board and Anr.Decided On: 07.04.2005

Hon'ble Judges:

B.C. Patel, C.J. and Sanjay Kishan Kaul, J.

Counsels:

For Appellant/Petitioner/Plaintiff: Shanti Bhushan, Sr. Adv., Anurag Dubey, D.P. Pande, Alok Tripathi,

Sanjay Pathak and Rajan Saluja, Advs.

For Respondents/Defendant: Rajive Mehra and Alpana Poddar, Advs.



Catch Words:

Biological Diversity, Breach of Fundamental Right, Certiorari, Composition, Constitution of India,

Contract, Damage, Decent Environment, Definition, Directive Principle, Discharge, Emission,

Emission Standard, Enforcement of Fundamental Right, Environmental Pollution, Existing Law,

Fundamental Duties, Fundamental Right, Guarantee, International Agreement, Liberty, Nature of

Certiorari, Noise Pollution, Parliament, Pollution Control, Prohibition, Public Interest, Reasonable

Restriction, Recommendation, Representation, Right to Life, Right to Live, Speaker, Wild Life

Acts/Rules/Orders:

Environment (Protection) Act, 1986 - Sections 2, 3, 3(2), 6, 6(1), 6(2), 7, 25 and 25(2); Consumer

Protection Act, 1986; Indian Contract Act; Constitution of India - Articles 14, 19, 19(1), 21, 48A and

51A; Environment (Protection) (Amendment) Rules, 2002 - Rules 2, 3 and 89; Environment

(Protection) Rules, 1986

Cases Referred:

Sagun Kaushik v. Lieutenant Governor of Delhi and Ors., 2000 VII AD (Delhi) 225; M.C. Mehta v.

Kamal Nath, AIR 2000 SC 1997

Disposition:

Petition dismissed

Case Note:

Environment (Protection) Second Amendment Rules, 2002 - Rule 2(c) -- Writ petition by

manufacturer of diesel generator challenging the validity of rule -- The amendment of rules requiring

noise limit for all diesel generators upto 1000 KVA irrespective of its use and its location --

Enactment of rule for the purpose of protection of environment -- The rule enacted to give effect to

right to life under Article 21 of Constitution -- Writ petition challenging the rule held not

maintainable.

JUDGMENT

B.C. Patel, C.J.

1. The petitioners, engaged in the business of manufacturing Diesel Generators (hereinafter referred

to as DG Set) which are being sold and used in India, have prayed for issuance of a writ, order or

direction in the nature of certiorari, inter alia, to quash Rule 2(c) of the Environment (Protection)

Second Amendment Rules, 2002 contained in the notification dated 17.5.2002 published in Extra

Ordinary Gazette Part-II.

2. The Competent Authority in exercise of powers conferred by Sections 6 and 25 of the

Environment (Protection) Act, 1986 (hereinafter referred to as the Act) made the rules known as The

Environment (Protection) Rules, 1986 (hereinafter referred to as the Rules). By the aforesaid

notification in exercise of the powers conferred under Sections 6 and 25 of the Act the Rule making

authority, made the rules, known as The Environment (Protection) Second Amendment Rules, 2002

(hereinafter referred to as the Amended Rules). By the said amendment, noise limit of generator

sets run with diesel came to be re-determined or fixed. Relevant part of Clause (1) of Entry 94 as

inserted by the aforesaid Amended Rules reads as under:-

"Noise limit for diesel generator sets (upto 1000 KVA) manufactured on or after the 1st July, 2003.

The maximum permissible sound pressure level for new diesel generator (DG) sets with rated

capacity upto 1000 KVA, manufactured on or after the 1st July, 2003 shall be 75 dB(A) at 1 metre

from the enclosure surface.

The diesel generator sets should be provided with integral acoustic enclosure at the manufacturing

stage itself.

The implementation of noise limit for these diesel generator sets shall be regulated as given in

paragraph 3 below."

3. Reading the Amended Rules, it is clear that the noise from diesel generator set must be controlled

by providing an acoustic enclosure or by treating acoustically at the manufacturing stage. The limits

are to be regulated by the State Pollution Control Boards and the State Pollution Control

Committees. Amended Rule 3.1 refers to diesel generator sets upto 1000 KVA rated out put,

manufactured or imported in India on or after 1st July, 2003. Rule 3.2 mandates every manufacturer

to have a valid certificate. Agencies for certification are also appointed by Rule 3.6.

4. Learned counsel for the petitioners submitted that rules are violative of the provisions contained

in Articles 14, 19 and 21 of the Constitution of India in so far as it fixes standard noise limit of 75

dB(A) for all diesel generator sets up to 1000 KVA irrespective of location for use and capacity. The

duty to provide integral acoustic enclosure for these generator sets upon the manufacturers is also

violative of the fundamental rights, as aforesaid. It was further submitted that Section 7 of the Act

prohibits emission or discharge of environmental pollutants in excess of the standards. Section 7 of

the Act reads as under:-

"No person carrying on any industry, operation or process shall discharge or emit or permit to be

discharged or emitted any environmental pollutant in excess of such standards as may be

prescribed."

5. According to learned counsel for the petitioners, this section would come into play only when

diesel generator sets are put to use and not before that. It is open, according to learned counsel for

the petitioners, for a consumer to purchase a generator set and it is for him to use the same in such

a way which may not exceed the noise level prescribed. He may purchase the accessories from the

market or may prepare himself and use the same so as to reduce the noise level so as to bring the

same as per standard. If the consumer is not providing acoustic enclosure or such other device to the

D.G. Set so as to bring the noise level within the permissible limits, then its use by a consumer is

prohibited. According to the submission made by learned counsel for the petitioners, possession of

diesel generator set without acoustic enclosure is not prohibited. What is prohibited is the use of

diesel generator set causing the noise pollution which is not within the prescribed norms. He further

submitted that there is no obligation cast on the manufacturer to provide �acoustic enclosure or a

safety device so as to reduce the noise level. Learned counsel for the petitioners further submitted

that Rule 3 of the Rules refers to standards for emission or discharge of environmental pollutants.

The word �environmental pollutants means any solid, liquid or gaseous substance present in such

concentration as may be, or tend to be injurious to environment. �Environmental Pollution means

the presence in the environment of any environmental pollutant. According to learned counsel for

the petitioners, the rule making authority is not empowered to make rule, calling upon the

manufacturer to provide a device to control the noise pollution. According to the submission, it is for

the Parliament to amend the Act so as to bring the noise pollution within the limits that may be

prescribed. In the Environment Act, as it stands, according to learned counsel for the petitioners,

there is no power to make rules as amended.

6. It was further submitted that reading Section 6(2)(b) of the Act, the maximum allowable limits of

concentration of various environmental pollutants (including noise) for different areas are required

to be prescribed. According to learned counsel for the petitioners, in view of Section 6 of the Act, it

is difficult to understand the act of the State in compelling the manufacturer to provide acoustic

enclosure on all the DG Sets, as there may not be need of such a rigorous control if the farmer is

using a diesel generator set in his farm for the purpose of drawing water or other purpose. While in

the case of a city, according to learned counsel for the petitioners, it may be felt absolutely

necessary. It is in view of this that a submission is made that the restriction should be at the user end

and not with the supplier. The Government has utterly failed in examining these aspects. It was

submitted that a loud speaker used in a thickly populated locality may be a nuisance to every one,

but use of a loud speaker in an open space where a public meeting is held, may not be harmful to

the people living in a different area. In view of Section 6, it was submitted that the standards are

required to be fixed for different places and, therefore, it is incumbent upon the Government to

impose restriction or to lay down conditions at the time of the use, but, it cannot direct the

manufacturer to supply the D.G. Sets with acoustic enclosure. Section 25 of the Act was read in toto

and it was submitted that in the said section, there is nothing to indicate that a rule making

authority is empowered to issue or make rules so as to oblige the manufacturer to provide acoustic

enclosure on a diesel generator set.

7. It was also submitted that sub-section (2) of Section 3 of the Act permits to take such measures to

prevent pollution but it must be with respect to the matters indicated in sub-section (2). Standards

can be laid down for the quality of environment and its various aspects. Standards can be laid down

for emission or discharge of environmental pollutants. There can be restriction in certain areas on

industries, operations or processes as also prohibition or the same would be allowed subject to

certain safeguards. Sub-section (2) of Section 3 of the Act nowhere authorizes to make a provision

directing the manufacturer to provide acoustic enclosure on the diesel generating set as argued by

the learned counsel for the petitioners.

8. On behalf of the respondent - Union of India, our attention was invited to a notification dated

19.5.1993 whereby at the manufacturing stage, the manufacturers were duty bound to maintain the

standards prescribed, namely, of noise limits for automobiles, i.e. (a) motor cycle, scooters and three

wheelers; (b) passenger cars; (c) passenger or commercial vehicles upto 4 MT; (d) passenger or

commercial vehicles above 4 MT and upto 12 MT and (e) passenger or commercial vehicles

exceeding 12 MT. Similarly, for domestic appliances, the manufacturers were expected to see that

the domestic appliances are manufactured in such a way that it does not create noise more than the

prescribed limits. The article refers to window air conditioners of 1 ton to 1.5 ton; air coolers;

refrigerators; diesel generators for domestic purposes; compactors (rollers); front loaders etc. These

rules were issued in view of the power conferred under Sections 6 and 25 of the Act.

9. It was further submitted that so far as the diesel generator sets are concerned, it is not for the

first time rules have been made. Apart from the diesel generators for domestic purposes in the year

1998, subsequently notification was issued and in Entry 83 the standards were prescribed as under:-

"Standards/Guidelines for control of Noise Pollution from Stationary Diesel Generator (DG) sets.

(A) Noise Standards for DG sets (15-500 KVA)

The total sound power level, Lw. of a DG set should be less than 94+10 log10 (KVA), dB(A), at the

manufacturing stage, where, KVA is the nominal power rating of a DG set.

This level should fall by 5 dB(A) every five years, till 2007, i.e. in 2002 and then in 2007.

(B) Mandatory acoustic enclosure/ acoustic treatment of room for stationary DG sets (5 KVA and

above).

Noise from DG set should be controlled by providing an acoustic enclosure or by treating the room

acoustically.

The acoustic enclosure/acoustic treatment of the room should be designed for minimum 25 dB(A)

Insertion Loss or for meeting the ambient noise standards, whichever is on the higher side (if the

actual ambient noise is on the higher side, it may not be possible to check the performance of the

acoustic enclosure/acoustic treatment. Under such circumstances the performance may be checked

for noise reduction upto actual ambient noise level, preferably, in the night time). The measurement

for Insertion Loss may be done at different points at 0.5m from the acoustic enclosure/room, and

then averaged.

The DG set should also be provided with proper exhaust muffler with Insertion Loss of minimum 25

dB(A).

(C) Guidelines for the manufacturers/ users of DG sets (5 KVA and above).

01 The manufacturer should offer to the user a standard acoustic enclosure of 25 dB(A) Insertion

Loss and also a suitable exhaust muffler with Insertion Loss of 25 dB(A).

02 The user should make efforts to bring down the noise levels due to the DG set, outside his

premises, within the ambient noise requirements by proper siting and control measures.

03 The manufacturer should furnish noise power levels of the unsilenced DG sets as per standards

prescribed under (A).

04 The total sound power level of a DG set, at the user(tm)s end, shall be within 2 dB(A) of the total

sound power level of the DG set, at the manufacturing stage, as prescribed under (A).

05 Installation of a DG set must be strictly in compliance with the recommendations of the DG set

manufacturer.

06 A proper routine and preventive maintenance procedure for the DG set should be set and

followed in consultation with the DG set manufacturer which would help prevent noise levels of the

DG set from deteriorating with use.

10. After a long time, looking to the requirement of the day, the Legislature made provisions by

enacting and/or amending the provisions to protect the environment. People since ages have given

due importance to water, reservoir and greenery. Since ages it is known that air, water, sky, earth

and fire are the five elements which are the key elements for the composition of human body.

Forests and wild life protection had a special place in Indian culture. The care was taken during the

period of Rig Veda till British period for environment. Various Acts came to be enacted to take care

of nature and to punish the wrong doers.

11. In view of various inventions, the situation is complex now a days, therefore, the Legislature was

required to enact the laws. The problems are so serious that at international level conferences were

held and are being held. Various countries participated so as to protect and improve the

environment. That being a major issue for the well being of the people as also for economic

development through out the world, the proper course of actions were considered. It must be noted

that on account of attack on the environment knowingly or unknowingly, scientists, economists,

policy makers and administrators have given serious thoughts on the subject. Article 48A of the

Constitution of India mandates that the State shall endeavour to protect and improve the

environment and to safeguard the forests and wild life of the country. Article 51A of the Constitution

of India imposes as one of the fundamental duties on every citizen, the duty to protect and improve

the natural environment including forests, lakes, rivers and wild life and to have compassion for

living creatures. The United Nations Conference on the Human Environment, held at Stockholm on

16th June, 1972, sought to build upon it, with the goal of establishing a new and equitable global

partnership through the creation of new levels of co-operation among States, Key sectors of

societies and people, working towards international agreements which respect the interests of all

and protect the integrity of the global environmental and developmental system, recognizing the

internal and interdependent nature of the Earth, our home. The decline in environmental quality has

been evidenced by increasing pollution, loss of vegetal cover and biological diversity, excessive

concentrations of harmful chemicals in the ambient atmosphere and in the food grains. There are

growing risks of environmental accidents and threats to life and existing laws dealing directly and

indirectly with environmental matters were not sufficient. All aspects were not covered and to

eliminate the uncovered gaps, in the year 1986 the Act came into force. So far as pollution is

concerned, Halsbury(tm)s Laws of England, Fourth Edition, Vol. 38 states as under:-

"The direct or indirect discharge by man of substances or energy into the aquatic environment

resulting in hazard to human health, harm to living resources and aquatic ecosystems, damage to

amenities or interference with other legitimate uses of water. The above definition relates to

pollution of water, and has not covered pollution in general. As regards noise pollution, it simply

connotes unwanted sound in the atmosphere. It is unwanted because it lacks the agreeable

amicable quality. Noise is, therefore, sound, but it is pollution when the effects of sound become

undesirable."

12.The Encyclopedia Britannica (Vol.16, 1968, p.558) states about �Noise as under:-

"In acoustics noise is defined as any undesired sound. According to this definition, a sound of church

bells may be music to others. Usually, noise is a mixture of many tones combined in a non-musical

manner."

13.The Encyclopedia Americana states about �Noise as under:-

"Noise by definition is unwanted sound. What is pleasant to some ears may be extremely unpleasant

to other, depending on a number of psychological factors. The sweetest music, if it disturbs a person

who is trying to concentrate or to sleep, is noise to him, just as the sound of a pneumatic riveting

hammer is noise to nearly everyone. In other words, any sound may be noise if circumstances cause

it to be disturbing."

14. The root cause of pollution lies in the sort of world we have chosen to build for ourselves, and in

our thoughtless worship of progress at any cost. Industrialization, urbanization and modernization

has invited noise pollution and resultantly, its evil effects. This causes several problems. It disturbs

sleep, concentration of work, increases blood pressure in some cases or it causes depression or

mental stress or annoyance. It is known to human beings that noise pollution affects not only human

beings but also animals and nature. Music, which is loved by people, is nothing but a systematic

noise created by instrument. However, when it exceeds its level, it causes annoyance and it has evil

effects on others. It is also required to be noted that the sound is not static. Waves move which

causes vibrations. Everyone felt that it is necessary to impose restriction so as to see that human

being lives his life with peace and there is no breach of Article 21 of the Constitution of India.

Considering the aforesaid aspects and other aspects, the rules came to be amended from time to

time.

15. Section 7 of the Act is not applicable only to the person who engages himself in any industry,

operation or process but is also applicable to one who permits, discharge or emission of any

environmental pollutant in excess of such standards as may be prescribed. If diesel generating set is

manufactured without providing acoustic enclosure, would mean knowingly allowing others to

commit breach of the norms by selling the same in the market either by himself or through

agents/dealers. It appears that the same person will be equally responsible. Manufacturing and

selling of Diesel generating set, knowing full well that it does not meet with the noise emission

standards without providing acoustic enclosure, will be a violation of the provisions of the Act and

Rules. In such case, the manufacturer and seller are jointly and severally liable for the violation of

the provisions of the Act. Moduling a machine to achieve a prescribed standard of emission is a

process related to its manufacture, and that can never be a user(tm)s responsibility, but is always

the manufacturer(tm)s responsibility. To achieve that standard, if an acoustic enclosure is essential,

it must, and should be at the manufacturing level, and not at the user level. Not providing such an

acoustic enclosure will amount to offering for sale a machine that do not meet with a standard

having considerable public important, and thus constraining others to commit a breach of the

norms. An end-user is always not supposed to know the emission standards prescribed for a

machine, and, therefore, it ought have to be fixed at the manufacturing stage. It can be said to be a

responsibility of the end-user to ensure that the equipment is well kept so as to ensure that

emission is maintained. A manufacturer cannot be heard to say that acoustic enclosures are

available in the market, and the purchaser may use it to reduce the noise pollution.

16. One cannot ask a consumer to go from one place to other place to buy and fit the accessories

before the use so as to see that use of it is not an offence. It is a duty of a manufacturer to deliver

the article manufactured in a condition whereby use of it is not an offence. In a motor car the

manufacturers are providing a silencer or a muffler. The manufacturers cannot say to the consumers

to get it from the market and fit in the car. When the goods are delivered by the manufacturer, it

must be delivered in such a state so as to see that the use of the same is not offensive to any one

much less is not an offence. Goods are to be supplied to a consumer without any defect. The

legislature by enacting the Consumer Protection Act,1986 has provided an Act for better protection

of the interests of consumers. Defect is defined in sub-clause (f) of Section 2 of the said Act, which

reads as under:-

"2 (f) �defect means any fault, imperfection or shortcoming in the quality, quantity, potency, purity

or standard which is required to be maintained by or under any law for the time being in force or

under any contract, express or implied or as is claimed by the trader in any manner whatsoever in

relation to any goods;"

If the article manufactured has any fault, imperfection or shortcoming in the quality etc, then it

would be considered as defective goods. Considering the provisions contained in the Constitution of

India and the provisions contained in other Act, namely, the Indian Contract Act, it is not open to a

person to supply a defective machine. If a D.G.Set is creating noise, then it can be said that there is a

shortcoming in the quality or the standard which is required to be maintained. A D.G. Set may run

perfectly and there many not be any fault at the time of running the machine. However, while

operating the machine it is creating more noise than the prescribed level, it can be said that there is

a defect in the manufacture. The norms which are prescribed under the Act and the amended Rules

are required to be maintained. Consumer is not expected to have a detailed knowledge about the

noise level or noise being created by the use of a machine which is beyond the norms prescribed.

The consumer would be interested in buying a machine so as to see that the use of it is not creating

any nuisance or annoyance including by making noise. That is the reason why a provision is made by

the Legislature with regard to providing appropriate device and maintaining standards at the time of

manufacturing itself.

17. Section 6 of the Act has been brought into force with effect from November, 1986. Section 3 of

this Act confers power on the Central Government to take all such measures as it deems necessary

or expedient for the purpose of protecting and improving the quality of the environment and

preventing, controlling and abating environmental pollution. �Environment includes water, air and

land and the inter-relationship which exists among and between water, air and land and human

being, other living creatures, plants, micro-organism and property. It is in this back ground that

Section 6 is enacted. We have to consider sub-section (1) of Section 6 of the Act, which provides the

Central Government to make rules in respect of all or any of the matters referred to in Section 3.

Section 3 has two parts, namely, sub-section (1) and sub-section (2). Maximum allowable limits of

concentration of various environmental pollutants including noise can be prescribed. The short

dispute, if we may say so is the restriction imposed by the Amended Rules. Entry referring to noise

limit for diesel generating sets run by diesel states �the diesel generator sets should be provided

with integral acoustic enclosure at the manufacturing stage itself. The objection raised by learned

counsel for the petitioners is that if instead of �at the manufacturing it is stated �at the time of

use, the petitioners would not be in a position to make any grievance. According to learned counsel

for the petitioners, the use of generator set which is creating noise beyond the prescribed limits is an

offense. It is required to be noted that the Legislature has provided Section 3(1) which reads as

under:-

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.

18. By virtue of this section, the government is empowered to take all such measures as it deems

necessary, not only for the purpose of protecting and improving the quality of the environment but

also for preventing, controlling and abating environmental pollution. It is under this provision that,

for the purpose of preventing the excessive noise or controlling the noise level so as to prevent,

control and abate environmental pollution, the rules have been made.

19. It is required to be borne in mind that the buyers are going to pay the cost for acoustic

enclosure. It is not that the manufacturers are compelled to supply free of cost and on that account

the petitioners cannot make any grievance by stating that it violates fundamental rights to carry on

business or manufacturing activities. His manufacturing activities are not prohibited but the product

which he is manufacturing is regulated so as to prevent and control environmental pollutant. Rules

are made keeping in mind Sections 6 and 25 of the Act. The standards are prescribed for

environmental pollutants under sub-clause (a) of sub-section (2) of Section 25. Section 6 read with

Section 3 makes it abundantly clear that not only the maximum allowable limits of concentration of

various environmental pollutants can be fixed but in view of Section 3, the State has power to take

all such measures including of preventing, controlling and abating environmental pollution. It is this

provision which authorizes the rule making authority to call upon the manufacturers to provide

controlling devices before the manufactured goods are delivered for its actual use and to control the

noise pollution so as to see that the same is within the prescribed norms when machine is used.

Manufacturers are not prohibited from manufacturing, but are asked to provide a device to control

the noise pollution which is in the interest of public at large. The said rule can not be said to be in

any way contravening the provision of the parent Act or violates any fundamental rights. Unless the

amended rules contravenes the parent Act or fundamental rights, there can not be any question of

quashing the rule.

20. In the year 1999 in exercise of the powers conferred by Sections 6 and 25 of the Act, entry

relating to noise standards for fire crackers was brought into force even at the manufacturing stage.

The relevant Entry 89 reads as under:-

"(i) The manufacture, sale or use of fire-crackers generating noise level exceeding 125 dB(A) or 145

dB(C)pk at 4 meters distance from the point of bursting shall be prohibited.

(ii) For individual fire-cracker constituting the series (jjoined fire-cracker), the above mentioned limit

be reduced by 5 log10(N) dB, where N= number of crackers joined together."

21. In the case of Sagun Kaushik v. Lieutenant Governor of Delhi and Ors. (2000 VII AD (Delhi) 225),

the petitioners approached the court in view of the restriction with regard to fire crackers. The

Division Bench of this Court pointed out for the strict compliance of the notification with certain

directions. The manufacturers were directed to specify and record the noise level on the cracker

itself. The Apex Court in Writ Petition (C) No. 72/1998 had an occasion to examine the same

question. The Court was concerned with the control of noise pollution caused by fire crackers and to

control noise pollution arising out of bursting of fire crackers. Interim directions were also issued.

The Apex Court directed strict compliance with Rule 89. Thus even manufacturers were directed not

to manufacture fire crackers which, on bursting, would breach the noise pollution norms. Before the

Apex Court in a petition In re: Noise Pollution Implementation of the Laws for Restricting Use of

Loudspeakers and High Volume Producing Sound Systems, being Writ Petition (C) No. 72/1998, on

10.9.2003 in response to submission that certain local festivals and celebrations are accompanied

customarily by bursting of fire crackers which is at times at such hours as is not permissible under

the order of the Court dated 27.9.2001 and that the industry of fire works may face serious difficulty,

even partial closure, on account of the directions issued by the Court, the Apex Court pointed out

that �we have grave doubts if the above said considerations can come in the way of the

enforcement of fundamental rights guaranteed by the Constitution for the citizens and people of

India to live in peace and comfort and in an atmosphere free from pollution of any kind, such as one

caused by noise and foul/poisonous gases. However, parties were allowed to make representations

to the Government. Learned counsel for the respondents pointed out that much earlier the

Government indicated the measures to be adopted for preventing and controlling the noise

pollution.

22. It was submitted that diesel generating sets used in city or field would not make any difference

so far as noise pollution is concerned. If the arguments of learned counsel for the petitioners is

accepted, then one may not require a muffler or a silencer in a vehicle used in the areas where it is

not thickly populated, and, therefore, such vehicles need not have controlling device for preventing

the noise pollution in rural areas. In our opinion, if such submission is accepted, then the

manufacturers manufacturing vehicles will say that the vehicle will create noise pollution at the time

of its use and while using it in thickly populated area, muffler would be required to be used by the

user of the vehicle. Therefore, it is for the persons using the vehicles to provide controlling system if

the vehicle is used in city or towns. Distant places where there is not much habitation, one may think

that it is not required. Therefore, the manufacturers should be free to manufacture the vehicles

without device for controlling the noise pollution. A manufacturer cannot be heard to take such a

plea.

23. In our opinion, by calling upon the manufacturers to provide acoustic enclosure, the right to

manufacture is not taken away but the same right continues to see that the D.G. Set, when put to

use, is not causing any noise pollution. In the opinion of the Court, this is not a case of restriction of

any type whatsoever, but considering the need of the day, for the general health of the public at

large and to protect the environment as it was found absolutely necessary, the rules have been

made to provide a controlling device so as to see that the noise pollution is within the norms

prescribed. Article 21 of the Constitution of India mandates that State shall take every step to

protect the life and liberty. The scope has been expanded, and to allow the citizen to live a peaceful

life, these rules have been made. Rules have been amended as in the opinion of the Court the rule

making authority is obliged to protect the citizens(tm) rights, their fundamental rights and by

amending the rules, citizens(tm) right under Article 21 is protected and at the same time, there is no

violation of the rights of the manufacturer, as the manufacturer is not prohibited from

manufacturing but a restraint is put to provide a device to control the noise pollution.

24. Right to life, enshrined in Article 21 means something more than survival or animal existence.

Every citizen has a right to live with human dignity. It includes all those aspects of life, which go to

make a man's life meaningful, complete and worth living and this article includes right to a decent

environment. Citizens have a right to an environment free from pollution. This right refers to the

quality of life which is inherent in the guarantee offered by Article 21. Obligation is cast upon the

state to preserve the right of citizens.

25. The Supreme Court in case of M.C. Mehta v. Kamal Nath (AIR 2000 SC 1997) has held that any

disturbance of the basic elements of the environment namely air, water and soil, which are

necessary for life would be hazardous to life within the meaning of Article 21.

26. Even assuming for the sake of argument that by calling upon the manufacturer to provide a

device at the stage of manufacturing amounts to breach of fundamental rights of a manufacturer,

the petitioners have no case, as in the opinion of the Court, allowing the manufacturer to

manufacture without providing a controlling device so as to bring the noise pollution within the

limits prescribed under the rules would amount to allowing the manufacturer to manufacture a

diesel generating set which would cause noise pollution on its use. Even if there is a conflict between

fundamental rights of two persons, only that right which would advance public interest would be

enforceable. Right to have a healthy life is certainly to be preferred and that is to be enforced.

27. It is required to be noted that there cannot be any such thing as absolute or uncontrolled liberty

wholly free from restraint, for that would lead to permit to cause pollution by use of a diesel

generating set manufactured by a manufacturer without providing a controlling device to bring the

noise pollution within the prescribed norms. The rights are subject to reasonable restrictions as may

be necessary and essential to the safety, health, peace, or general order and the morale of the

community. Ordinarily every citizen has the liberty to follow any trade, occupation or calling at his

pleasure and to do any other thing which he can lawfully do without let or hindrance. One has to

strike a balance between individual liberty and interest of public at large. Article 19 of the

Constitution refers to the liberties. However, various clauses refer to the restraints that maybe

placed upon them by law so that they may not come in conflict with public welfare or general

morality.

28. Any restriction upon the citizens right to carry on any occupation, trade or business under Article

19 (1) (g) must be held to be void unless it is saved by clause (6) of the said article. It is also to be

borne in mind that one cannot claim that his rights should be unfettered by any restriction which the

state would otherwise be entitled to impose not only in respect of freedom of others but to

safeguard others(tm) rights. It is also required that in order to be reasonable, the restrictions must

be reasonable and must have a reasonable relation to the object which is sought to be achieved.

With a view to achieve the goal of preventing pollution, which is in the interest of public at large,

when the restrictions are necessary to control the noise pollution, it cannot be said that calling upon

the manufacturer to provide a device so as to see that the diesel generating set is not causing noise

pollution and if it causes, the same is within the prescribed norms is unjust. The Court is required to

consider the matter from the point of view of furthering the public interest. The interest of

lawmaking authority is to see that public at large may not suffer on account of noise pollution.

29. It is also required to be noted that state has not imposed any restriction on the manufacturer.

One is permitted under a license or a permit to manufacture the diesel generating sets. He is only

asked to provide a device for prevention of noise pollution. That is with a view to protect health of

public. It is in consonance with the directive principles as enshrined in the Constitution. It is also in

consonance with the other rights of the citizens. This is provided with a view to safeguard the rights

of the citizens flowing from Article 21 of the Constitution of India. One has to remember the need of

the day. With a view to achieve the object of some of the provisions contained in the Constitution of

India and to safeguard the rights of the citizens, rules have been amended. Thus, even considering

the submissions on behalf of the petitioners, the Court is of the opinion that there is direct and

proximate nexus or reasonable connection between the so-called restrictions imposed and the

object sought to be achieved. In view of what is stated herein above it cannot be said that the

provisions contained in amended rules are violative of any of the fundamental rights of the

petitioners or the lawmaking authority had no power to make the rules.

30. In our opinion, in view of what is stated hereinabove, it is not possible to say that the Act is not

authorizing the State to make rules calling upon the manufacturers to provide a device for

preventing noise pollution i.e. acoustic enclosure, but on the contrary the Act casts duty to frame

rules to prevent noise pollution. As indicated above, for vehicles, air conditioners, diesel generating

sets for domestic purposes etc. the State has made provision for noise level at the manufacturing

stage and in our opinion rightly, in view of Section 3 which specifically authorizes the State to make

rules in this behalf.

31. We find no substance and, therefore, these petitions are required to be dismissed. Ordered

accordingly.

Equivalent Citation: 2005(II)OLR40

IN THE HIGH COURT OF ORISSA

W.P. (C) No. 8131 of 2004

Appellants: Dr. Jaykrushna Patnaik Vs. Respondent: Divisional Forest Officer, Ghumsur North Division

and Anr.:Decided On: 20.04.2005

Hon'ble Judges:

B.P. Das and A.K. Samantaray, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: B.P. Ray, S.J. Pradhan, P.K. Patnaik and B. Sahoo, Advs.

For Respondents/Defendant: Addl. Government Adv.


Catch Words:

Absence, Acquisition, Act, Activity, Agricultural, Alienation, Ancestor, Any Order, Appeal, Appellate

Authority, Application, Application of, Approval, Article, Authority, Bearing, Belated Stage, Bench,

Brother, Calling, Case, Central Government, Challenge, Classification, Collector, Committee,

Condition, Conduct, Consideration, Constitution, Constitution of India, Contentions, Contrary,

Convert, Converted, Copy, Cost, Cultivation, Cut Off Date, Date, Date Of, Dealing, Death, Decision,

Deed, Definition, Development, Dictionary Meaning, Direction, Division, Division Bench, Door, Draft,

Drawing, Due, Ecological Imbalance, Effects, Efflux of time, Enactment, Enquiry, Error, Father, Fault,

Filing, Finding, Forest Officer, Forest Produce, Forthwith, Garden, Government, Government Lease,

Grant, Ground, Guideline, Hybrid, India, Information, Intent, Interest, Interpretation, Issue,

Judgment, Justification, Land, Lease, Lease hold, Leased, Leasehold, Legal, Legal Position, Legislation,

Legislative Intent, Letter, Litigation, Material, Month, Name, Nature, Necessity, New, Notice,

Notification, Object, Object of, Occupied, Officer, Opposite Party, Order, Order Contrary, Owner,

Ownership, Parties, Pass, Patta, Period, Permission, Permission under, Permit, Petition, Plant,

Plantation, Position, Prejudice, Prior Approval, Private Land, Procedure, Process, Proof, Proof of Fact,

Property, Protected, Public, Publish, Published, Purchase, Purposive Interpretation, Quashing, Rate,

Reason, Receipt, Record, Reference, Refusal, Rejection, Remedy, Removal, Rent, Report,

Requirement, Reserve, Restriction, Revenue, Right, Rights, Sale, Sale deed, Settlement, State, State

Government, Statute, Statutory, Sub-Division, Subject, Survey, Terms, Title, Transit, Tribunal,

Validity, Verification, Verify, Work, Writ, Writ Petition, Writ Petitioner

Acts/Rules/Orders:

Forest Conservation Act, 1980 - Section 2; Orissa Survey and Settlement Act, 1958; Orissa Forest Act,

1972; Indian Forest Act, 1927; Orissa Communal Forest and Private Lands (Prohibition of Alienation)

Act, 1948 - Section 2; West Bengal Land Reforms Act, 1996 - Section 4A, 4B and 4C; Orissa Timber

and Other Forest Produce Transit Rules, 1980 - Rule 7(3); Orissa Timber and Other Forest Produce

Transit Act, 1980 - Section 7(3); Orissa Survey and Settlement Rules; Constitution of India - Articles

226 and 227

Cases Referred:

Laxminarayan Saw Mill and Ors. v. State and Ors., 79 (1995) CUT 189; T.N. Godavarman

Thirumulkpad case, AIR 1997 SC 1228; Bhagawan Bhoi v. State of Orissa, represented through

Commissioner-cum-Secretary, Forest & Environment Department and Ors., 2002 (II) OLR-206;

Ambica Quarry Works v. State of Gujarat, 1987 (I) SCC 213, AIR 1987 SC 1073; Rural Litigation and

Entitlement Kendra v. State of U.P., 1989 Suppl. (I) SCC 504, AIR 1989 SC 594; Supreme Court

Monitoring Committee v. Mussoorie Dehradun Development Authority, WP(C) No. 749 of 1995;

Samatha v. State of Andhra Pradesh and Ors., AIR 1997 SC 3297; Sri Ram Saha v. State of West

Bengal and Ors., AIR 2004 SC 5080

Disposition:

Petition allowed

JUDGMENT

A.K. Samantaray, J.

1. In this writ petition under Articles 226 & 227 of the Constitution of India the petitioner has

challenged the order dated 30.6.2004 of Divisional Forest Officer, Ghumsur North Division,

Bhanjanagar (opposite party No. 1) rejecting his application for issue of Timber Transit permit for

removal of trees (forest produce) standing on his private recorded land in Mouza Mujagada under

Ghumsur Tahsil in the District of Ganjam.

2. The petitioner along with others is the owner of a piece of land in Mouza Mujagada under M.S.

Holding No. 210, Plot No. 1958 and the petitioner had applied on 5.3.2001 to opposite party No. 1

for issuance of T.T. permit for removal of trees standing over the said plot of land. As per the letter

of opposite party No. 1 bearing No. 454 dated 4.2.2004 the petitioner submitted the required

documents i.e., ROR and rent receipts etc. The opposite party No. 1 thereafter issued intimation to

the Tahasildar, Ghumsur, Bhanjanagar (opposite party No. 2) for a joint verification and joint

verification was conducted in presence of Revenue and Forest officials and it was found that 111

numbers of trees of Sal and Teak variety were standing over the said plot. After report of joint

verification (Annexure-3} was received by opposite party No. 1 he took up the matter and after

considering all the materials observed that the petitioner had acquired the land on 24.1.1985 i.e.,

after 25.10.1980 when Forest Conservation Act, 1980 came into force. He further observed that the

Hon'ble High Court by order dated 18.12.2000 in OJC No. 7498 of 2000 had put an embargo on issue

of TT permit in respect of trees standing on Patta land in the State where Patta (lease) granted and

title acquired was after 25.10.1980. Opposite party No. 1 referred to the judgment of this Court

dated 10.7.2002 in OJC No. 4819 of 2001 and held that TT permit could not be issued for the trees of

the recorded plot No. 1958 under holding No. 210 of Mujagada belonging to the applicant

(Annexure-4) and rejected his application.

3. While challenging the ground of rejection under Annexure-4 petitioner has stated in the writ

petition that the said M.S. Plot No. 1958 under Holding No. 210 measuring an area of Ac.4.00

corresponds to Sabik Plot No. 351-2C under Holding No 184 area Ac.3.94 decimals of Mouza

Mujagada. The said land was acquired by the father of the petitioner long since and draft ROR was

issued on 26.6.1978 in the names of Ananta Patnaik and Sitaram Patnaik, father of the petitioner,

(vide Annexure-5) and after the death of the father of the petitioner the same has been recorded in

the name of the petitioner and his brothers in the final ROR published in 1985 (Annexure-6). It is

stated in the writ petition that the observation of opposite party No. 1 that the land in question was

acquired after 1980 is absolutely without any basis and the cut off date i.e., 25.10.1980 fixed by this

Court in OJC No. 7598 has no application to the petitioner's case as his land was acquired long

before 25.10.1980. Besides; the land of the petitioner is not a government leased land and it was

acquired and occupied by the ancestors who had planted Teak and Sal saplings and raised cashew

plantation over it after acquisition. It is stated with reference to a decision of this Court reported in

79 (1995) CUT 189 (Laxminarayan Saw Mill and Ors. v. State and Ors.) that "in view of the provisions

of Orissa Survey and Settlement Act, 1958 and the Rules framed thereunder, Orissa Forest Act, 1972,

Indian Forest Act, 1927, no area can be treated as forest without following elaborate procedure and

then due notification and as such the land of the petitioner cannot be treated or termed as forest or

forest land". The learned counsel for the petitioner referring to the case of T.N. Godavarman

Thirumulkpad, AIR 1997 SC 1228 has stated that over their private piece of land the predecessor of

the petitioner had planted Sal and Teak saplings which have matured by efflux of time and by no

stretch of imagination the said land can be termed as forest and cannot be construed as a forest nor

can it be brought under the fold of Forest Conservation Act, 1980. It is further pleaded that land of

the petitioner which admittedly has 111 numbers of Sal and Teak trees and recorded in the ROR as

Cashew plantation does not come under the definition of forest land as defined in Section 2(c) of the

Orissa Communal Forest and Private Lands (Prohibition of Alienation), Act, 1948 as the same has at

no point of time been declared to be forest land by notification of the State Government. Finally, it is

pleaded that since the forest authorities are already influenced by the judicial pronouncement of

this Court and no remedy against Annexure-4 can possibly be available by preferring an appeal the

petitioner has approached this Court for a decision on merit and has prayed for quashing of

Annexure-4 and a direction to opposite party No. 1 to issue TT permit in favour of the petitioner.

4. Opposite party No. 1 in the counter affidavit has asserted, inter alia, that the land of the petitioner

has been acquired on 24.1.1985 as the settlement authorities have issued the ROR on that date and

in view of the verdict of this Court the rejection of the petition for issue of TT permit cannot be

called in question as no document was produced by the petitioner before the opposite party No. 1

to show that the land was purchased by his ancestors long back and the land being acquired in 1985

i.e., long after cut off date 25.10.1980 the petitioner has rightly been denied TT permit.

5. The short question that arises for consideration in view of the rival contentions of the parties is

whether in view of the Forest Conservation Act, 1980 and the order of this Court dated 18.12.2000

passed in Misc. Case No. 12538 of 2000 arising out of OJC No. 7498 of 2000 directing not to issue TT

permit in respect of the trees standing over Patta land of the State where title has been acquired

after 25.10.1980 has any application to the petitioner's land so as to reject this petition for issue of

TT permit.

6. The learned counsel for the petitioner submitted that opposite party No. 1 has not only misread,

he has misconstrued Annexure-6 the ROR of the land of the petitioner and has rejected the

application for grant of TT permit wrongly interpreting and applying the decision of this Court in OJC

No. 7498 of 2000 to the petitioner's case. He further submitted that this Court passed order on

18.12.2000 in Misc. Case No. 12538 of 2000 in OJC No. 7498 of 2000 restricting issue of TT permit in

respect of trees in Patta land of the State when Patta or title had been acquired after 25.10.1980. In

the said case the petitioner had got the land recorded in his name as a Raiyat only in the year 1988

when he was issued Patta by the Settlement authorities and he came within the purview of order

dated 18.12.2000. Besides, the reason for which he intended to fell the forest growth and sought TT

permit was for cultivation of the land and the available trees standing thereon not affecting his

cultivation in any manner and the petitioner having substantial agricultural properties and there

being no real necessity for felling the trees and removing them, in the interest of conservation of

forest, the prayer was rejected. Distinguishing the case of the petitioner from the facts of the case

decided in OJC No. 7498 of 2000 learned counsel for the petitioner submitted that the joint

verification report (Annexure-6) prepared and submitted to opposite party No. 1 pursuant to

Annexure-1 his letter to the opposite party No. 2 and there is specific mention in paragraph-8 of

Annexure-1 to verify and incorporate in the report if the plot of land of the petitioner was a lease

plot or not and if a leased out plot, the year of such lease. He argued that as is apparent on the face

of Annexure-6 one Revenue Inspector and one Revenue Supervisor accompanied the ACF and the

Range Officer and verification was done in presence of the petitioner on 16.3.2004 and had it been a

lease hold land and acquired after 25.10.1980 the officials conducting the joint verification could not

have failed to make a mention to that effect in Annexure-6. Drawing our attention to the copy of the

draft ROR in respect of the said plot, learned counsel for the petitioner argued that copy of the draft

ROR published was obtained in the year 1978 which is a concrete proof of fact that Annexure-5 was

published prior to 1978 and final ROR in respect of the said property was published in the year 1985

by the Settlement authority. Apart from these two annexures he referred to copy of sale deed No.

201 dated 25.1.1957 filed along with his rejoinder and submitted that since final ROR was already

published after current settlement was over and the petitioner had submitted the same at the time

of joint verification, he did not file the copy of the sale deed and since opposite party No. 1

misconstrued the ROR to be a lease document, he was constrained to file the same (copy of the sale

deed) to show that the land was not lease hold land but was acquired by the father of the petitioner

in the year 1957. We have examined the document including Annexure-6 and we have absolutely no

hesitation to find that the land of the petitioner is not a lease hold land and obtained from

Government on lease and on the other hand it is a purchased land of the father of the petitioner and

recorded in the names of the petitioner and others in the current settlement vide Annexure-6. On

the face of our above finding on the nature of the petitioner's land in question the contention of

opposite party in the counter affidavit that the land has been acquired after 25.10.1980 is without

any merit and substance and thus cannot be accepted. The learned Addl.Government Advocate

failing utterly to convince us that the petitioner's land is a leasehold land acquired after 25.10.1980

drew our attention to a decision of this Court rendered in 2002 (II) OLR-206 (Bhagawan Bhoi v. State

of Orissa, represented through Commissioner-cum-Secretary, Forest & Environment Department

and Ors., where the question whether the Forest Conservation Act, 1980 applies to trees standing on

the private owned land was answered by the Division Bench following the view in the decision of the

apex Court in the case of T.N. Godavarman (supra) held that the Act applies to any forest land

whether declared as private forest or not and whether the 'forest' is a reserved forest or not. Once

the land satisfies the description of being a forest land, it has to be taken that the Act would have

application and no permission to fell trees could be granted without prior concurrence of the Central

Government. In. T. N. Godavarman case (supra) dealing with the scope of the expression 'forest' and

speaking on the scope of the 'forest' in the Forest Conservation Act, 1980 their Lordships of the apex

Court have stated thus:-

"The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which

ultimately results in ecological imbalance; and therefore, the provisions made therein for the

conservation of forests and for matters connected therewith must apply to all forest irrespective of

the nature of ownership or classification thereof. The word 'forest' must be understood according to

its dictionary meaning. This description covers all statutorily recognized forests, whether designated

as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act.

The term 'forest land', occurring in Section 2, will not only include 'forest' as understood in the

dictionary sense, but also any area recorded as forest in the Government record irrespective of the

ownership. This is how it has to be understood for the purpose of Section of the Act. The provision

enacted in the Forest Conservation Act, 1980 for the conservation of forest and the matters

connected therewith must apply clearly to all forests so understood irrespective of the ownership or

classification thereof...."

This aspect has been made abundantly clear in the decision of the Court in the case of Ambica

Quarry Works v. State of Gujarat, 1987 (I) SCC 213 :(AIR 1987 SC 1073). Rural Litigation and

Entitlement Kendra v. State of U.P., 1989 Suppl. (I) SCC 504 (AIR 1989 SC 594) and recently in the

order dated 29th of November, 1996 in WP(C) No. 749 of 1995, Supreme Court Monitoring

Committee v. Mussoorie Dehradun Development Authority. In that decision the apex Court has

stated that in view of the meaning of the word 'forest' in the Act, it was obvious that prior approval

of the Central Government was required for any non-forest activity within the area of any forest. The

Court also directed that in accordance with this Section of the Act all ongoing activities within any

forest in any State throughout the Country without the prior approval of the Central Government

had to cease forthwith.

7. The apex Court once again in the case of Samatha v. State of Andhra Pradesh and Ors., AIR 1997

SC 3297 in paragraph 233 observed that :-

"Bearing in mind the objects sought to be achieved by the Conservation Act, we see no justification

to give a restrictive meaning to the expression 'forest land' used in Section 2 of the Conservation Act.

On the other hand, the expression 'forest land' should be given an extended meaning to cover a

track of land covered with trees, shrubs, vegetation and undergrowth under mingled with trees with

pasture, be it of natural growth or man-made forestation."

8. Learned Addl. Government Advocate heavily relying on the aforesaid decision of the apex Court

argued that there could not be any doubt that the Forest Conservation Act would apply to any forest

land whether declared as private forest or not and whether the forest is a reserved forest or not. He

further argued that once it is found that the land satisfies the description of being a forest land it has

to be held that the Forest Conservation Act would have application and no permission to fell trees

would be granted without prior concurrence of the Central Government. Calling our attention to

Annexure-6, the ROR of petitioner's plot No. 1958 and its area which stretches up to four acres, its

recorded character i.e. cashew plantation (Valia Bagayat) and admittedly 111 numbers of Teak and

Sal trees standing over it, the learned Addl. Government Advocate argued that the guideline of the

Supreme Court relating to definition of forest within the Forest Conservation Act, 1980 squarely

applies to the land of the petitioner and thus it comes within the definition of the forest as defined

in Section 2(i) of the said Act and as such the rejection of the petition of the petitioner for grant of TT

permit for felling and transporting the trees standing over it is lawful and justified.

9. Learned counsel for the petitioner citing a recent decision of the apex Court reported in AIR 2004

SC 5080 (Sri Ram Sana v. State of West Bengal and Ors. where in a case under Sections 4-B, 4-C, 4-A

of West Bengal Land Reforms Act (10 of 1996) relating to permission of Collector to fell trees, held

that it was not required for felling trees in non-forest private plantation/orchard/bagan. The Court

also held that the ban on felling of trees imposed of by Court in T.N. Godavarman (supra) does not

extend to non-forest private plantation. Restriction imposed Under Section 4-A on cutting more than

one tree in non-forest private plantation is confined to three sub-divisions of Darjeeling District.

Court cannot enlarge or extend the scope of Section 4-A to areas in State of West Bengal other than

areas specified in three sub-divisions of Darjeeling District. The apex Court heard the appeal of the

appellant, owner of certain land classified as 'Bagan' (garden) in the ROR who in the process of

cutting trees from his garden to renovate it by planting new hybrid saplings was prevented by police

personnel and Block Land Reform Officer from further felling trees citing the judgment of the apex

Court in T.N. Godavarman case (supra). The appellant in the circumstance approached the High

Court by filing the writ application challenging the action of the officers and seeking some directions.

The Hon'ble Single Judge of the High Court referred the matter to the Division Bench. The Division

Bench of the High Court disposed of the writ petition permitting the appellant to fell trees standing

on his garden but subject to certain conditions and restrictions. Hence, the appeal was preferred in

the apex Court questioning the validity and correctness of the impugned judgment contending that

to fell trees within his garden land, the appellant was not required to seek any permission Under

Section 4-B read with Section 4-C of the Act.

10. The apex Court in the said appeal had the occasion to deal with the provisions of Forest

Conservation Act, 1980 and the legislative intent behind its enactment and interpreting the decision

in T.N. Godavarman (supra) in their judgment, quoted the direction given in paragraph 5 which we

would profitably extract below some of which we consider relevant for our purpose :-

"(i) In view of the meaning of the word 'forest' in the Act, it is obvious that prior approval of the

Central Government is required for any non-forest activity within the area of any 'forest'. In

accordance with Section 2 of the Act all ongoing activity within any forest in any State throughout

the Country without prior approval of the Central Government must cease forthwith.

(ii)�� Xxx�� xxx�� xxx

(iii)�� Xxx�� xxx�� xxx

(iv) The ban will also not affect felling in any private plantation comprising of trees planted in any

area which is not a forest."

11. In the said judgment the apex Court has given certain specific directions to States specified

therein and relevant directions given to the State of Himachal Pradesh and the hill regions of the

State of U.P. and West Bengal which is relevant read as follows :-

"There will be no felling of trees permitted in any forest public or private. This ban will not affect

felling in any private plantation comprising of trees in any area which is not a forest and which has

not been converted from an earlier forest."

12. Learned counsel for the petitioner submitted that the Apex Court in the judgment of Sri Ram

Saha (supra) in paragraphs- 9 and 10 has elaborately interpreted the earlier judgment in T.N.

Godavarman (supra) and the effects of the direction given therein and has made it abundantly clear

that the direction given by the Court is clearly confined to felling of trees in forest land and the said

ban was not extended to non-forest private plantation. Learned counsel took us through the

relevant paragraphs of the judgment which are quoted below :-

"9. It is clear from the aforesaid judgment of this Court that the observations made and directions

given were in relation to Forest Land. The term of 'forest land' occurring in Section 2 of the

Conservation Act will not only include 'forest' as understood in the dictionary sense but also includes

any land recorded as forest in the Government record irrespective of the ownership. It is also stated

that the provisions of the Conservation Act for the conservation of Forest and the matters connected

therewith must apply clearly to all forests so understood irrespective of ownership or the

classification thereof. By the directions given in the said judgment, certain bans are imposed

including a ban in respect of felling of trees in forest, irrespective of the nature of the forest, i.e.

whether the forest is public forest or private, reserved, protected or otherwise. It is clear from the

observations made and directions given in the aforesaid judgment of this Court that though ban was

imposed in respect of undesirable activities in the forest irrespective of the nature of the forest and

its ownership but such a ban did not affect felling of trees in any private plantation in an area which

is not a forest. Thus, it is clear that the direction given by this Court is clearly confined to felling of

trees in forest land and the said ban was not extended to non-forest private plantation. It is made

clear in the judgment that the directions given are to be implemented notwithstanding any order at

variance made or which may be made by Government or any authority, tribunal or Court including

the High Court. In the impugned judgment, the High Court having referred T.N. Godavarnan

Thirumulkpad etc. (supra) of this Court has stated thus :-

In other words, the direction of the Supreme Court regarding the application of ban on felling of

trees in forests and non-application of the same in non-forest private plantation has to prevail over

any other deviating order even if such order has been or is passed by the High Court. It is however to

be noticed here that while the Supreme Court expressly recorded in its direction about the non-

application of the ban in any non-forest private plantation, the Supreme Court only nullified in clear

words the orders at variance which might have been or might be passed by any Government,

authority, tribunal or Court. The Supreme Court however, did not say nor purported to say that any

statutory or enacted law regarding non-forest private plantation will not be given effect to."

"10. In the impugned judgment, the High Court has clearly stated ban on felling of trees imposed by

this Court was only relating to trees in forest area and not to non-forest private plantation and that

any order contrary cannot prevail. Having said so, the High Court went on to say that this Court did

not direct that any statutory or enacted law regarding non-forest private plantation will not be given

effect to. This legal position cannot be faulted but the High Court committed an error in its

application. Admittedly, there is no statutory or enacted law which enabled the State authorities

either to take action for felling of trees in private plantation not being forest and in the absence of

any requirement of any statutory enactment to take permission for felling of tree in a private

plantation, the High Court could not have imposed restrictions and conditions as is ultimately done

in the impugned judgment while permitting the appellant to fell the trees."

13. At the cost of the repetition, we would say that the Apex Court as such has held that when

admittedly there is no statutory enacted law which enabled the State authorities either to take

action for felling trees in private plantation not being forest and in the absence of any requirement

of statutory enactment to take permission for felling of trees in a private plantation, the High Court

could not have imposed restriction and condition while permitting the appellant to fell trees.

14. The Apex Court in the concluding paragraph held that no permission is required for felling trees

in the non-forest private plantation/orchard/bagan. The Apex Court said."...at any rate in the guise

of positive interpretation Courts cannot re-write a statute. A purposive interpretation may permit a

reading of the provision consistent with the purposes and object of the Act, but the Courts cannot

legislate and enact the provisions either creating or taking away substantial rights by stretching or

straining a piece of legislation.

15. Learned Addl. Government Advocate could not place before us any statutory enactment of the

State Government banning felling of trees standing in the non-forest private plantation/

orchard/bagan and submitted that the State Government has not enacted any such legislation

banning such operation save and except ban on felling of fruit bearing trees and sandal trees. He

further submitted that the refusal or rejection of application for grant of T.T. permit by opposite

party No. 1 is in keeping with the decision of this Court in O.J.C. No. 7498 of 2000.

16. It is needless to mention that the aforesaid decision of this Court was rendered placing heavy

reliance on T.N. Godavarman case (supra). Now that the Apex Court in Sri Ram Saha (supra) after

interpreting its judgment in T.N. Godavarman and considering the definition of forest as per the

Forest Conservation Act, 1980 has in clear and categorical terms held that the ban imposed in T.N.

Godavarman in the matter of felling of trees does not extend to non-forest private

plantation/orchard/bagan and admittedly there being no State enactment felling of trees in non-

forest private plantation, the authorities cannot refuse T.T. permit to the owner of such forest

produce if after due enquiry under Section 7(2) of the Orissa Timber and Other Forest Produce

Transit Rules, 1980, he is found entitled to.

17. Learned Addl. Government Advocate finally submitted that the writ petitioner has directly

knocked at the door of this Court without exhausting the appellate forum, which was available to

him under Rule 7(3) of the aforesaid Rules, 1980, and as such, he may be directed to move the

appellate authority challenging the order of rejection passed by opposite party No. 1. Learned

counsel for the petitioner, on the other hand, contended that the petitioner has in his writ

application categorically stated the reasons and the circumstance under which he did not choose to

prefer an appeal and came to this. Court. He submitted that the forest officials are so much

prejudiced and influenced after the judgment and order passed in O.J.C. No. 7498 of 2000 that the

petitioner felt insecured and apprehending no better result in the appellate forum preferred to

move this Court for a decision on merit in the matter by filing this writ petition. We find sufficient

force in his contention and at this belated stage; we do not think it just and proper to direct the

petitioner to move the appellant authority although the order in Annexure-4 is appealable one.

18. Before parting, we would like to make it clear that the ban or restriction on felling trees

contemplated in Section 2 of the Forest Conservation Act, 1980 shall not apply to any private

plantation/orchard/bagan comprising of trees planted in any area which is not a forest. The ban shall

also not apply to lease hold land irrespective of date of grant of lease or date of acquisition of title, if

the land was not converted from an earlier forest.

19. The writ petition is accordingly allowed. The impugned order dated 30.6.2004 passed by the

Divisional Forest Officer, Ghumsur North Division, Bhanjanagar (opposite party No. 1) under

Annexure-4, is quashed. Opposite party No. 1 is directed to deal with the application of the

petitioner for grant of T.T. permit in terms of the observations made in the foregoing paragraphs and

pass necessary orders on the same within a period of two months from the date of receipt of a copy

of this judgment.

There shall be no order as to cost.

B.P. Das, J.

20. I agree.


Writ Petition Nos. 5314 and 5315 of 2005

Appellants: Dindigul Spinners Association (Regn. No. 330/97) rep. by its Adviser K. Venkatachalam

Vs. Respondent: Secretary to Government of Tamil Nadu, Environment and Forests Department and

The Chairman, Tamil Nadu Pollution Control Board: Decided On: 26.04.2005

Hon'ble Judges:

M. Karpagavinayagam and C. Nagappan, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: G. Masilamani, Sr. Counsel for R.S. Pandiyaraj, Adv.

For Respondents/Defendant: K. Mahendran, Spl. G.P. for Respondent No. 1 and Rita Chandrasekar,

Adv. for Respondent No. 2

Subject: Civil


Catch Words:

Consent Order, Mandamus, Pollution Control, Sewage, Trade Effluent

Acts/Rules/Orders:

Water Act; Air Act

Disposition:

Petition dismissed

ORDER

M. Karpagavinayagam, J.

1. These two Writ Petitions have been filed by Dindigul Spinners Association, seeking for issuance of

a writ of certiorarified mandamus, to quash the records relating to G.O. Ms. Nos. 165 and 166, dated

30.07.1996, issued by the first respondent, namely, Environment and Forests (E.C.I.) Department,

and consequently direct the respondents to refix the entire Red, Orange and Green categories of

industries with transparent policies.

2. We have heard Mr. G. Masilamani, learned Senior Counsel for the petitioner, and also gone

through the records.

3. According to Mr. G. Masilamani, learned Senior Counsel appearing for the petitioner, despite the

order passed by the Appellate Authority on 08.08.2002 to the effect that the consent fee structure

needs a second look by the Tamil Nadu Pollution Control Board taking into account the effective

steps taken by the applicant industries to control pollution and the nature and quantum of

pollutants discharged and in spite of the representations made before the second respondent,

requesting to consider the said observation of the Hon'ble Appellate Authority, the second

respondent has not acted upon on the said observation and, on the other hand, the Board insists on

every industry, situated in Tamil Nadu, irrespective of the fact whether it pollutes or not, to get a

consent order from the Board and has to renew the same at periodical intervals once in a year or

two years without, making any scrutiny for reconsideration of the fee structure, as per the

observation made the Appellate Authority.

4. The said submission is stoutly opposed by the learned counsel for the respondents on the strength

of the counter affidavit filed by the Joint Chief Environmental Engineer, namely, second respondent

herein, that the petitioner mills are the spinning mills, which are engaged in the production of cotton

yarn, which involves the process of blowing, drawing, cone winding and spinning, generating sewage

and trade effluents. As per the provisions of the Water and Air Acts, it is clearly revealed that any

industrial unit, discharging any sewage or trade effluent into a stream or well or sewer or on land,

should obtain prior consent. That consent shall be given, subject to some conditions. By an order of

a Division Bench of this Court, dated 26.02.1996, all the spinning mills are directed to approach the

Appellate Authority to decide whether the petitioners come under the purview of Water and Air

Acts and also to strike down the pattern of the fee collected by the Board. On that basis, G.O. Ms.

Nos. 165 and 166 were issued on 30.07.1996 and came into force with immediate effect; by which,

the industries were classified as Red, Orange and Green. Prior to the introduction of these G. Os.,

consent fees was levied on the Gross Fixed Assets only. As per the order of the Division Bench of this

Court, the first respondent was directed to revise the consent fee structure on the quantum and

grade of pollution caused by various industries. Accordingly, rules were amended and G.O. Ms. Nos.

165 and 166, dated 30.07.1996, were issued. Even thereafter, the spinning mills preferred an appeal

before the Appellate Authority. However, the said appeal was rejected. Subsequent to that, the

petitioner mills filed a Writ Petition, questioning the consent fee and the same was also dismissed on

30.04.2001, by a Division Bench of this Court, and the matter was remanded back to the Appellate

Authority to decide the issue whether the petitioner spinning mills come within the purview of

Water and Air Acts. On remand, the Appellate Authority, heard the parties at length; various

contentions were raised and the same were dealt with in detail and rejected, by an order dated

26.12.2003. Having taken into consideration the pollution potential aspects and the Gross Fixed

Assets, the impugned G. Os. came to be passed.

5. According to the learned counsel for the respondents, the G. Os., issued in the year 1996, are

sought to be quashed only in the year 2004 i.e., after a lapse of eight years, and, as such, the Writ

Petitions are liable to be dismissed, on the ground of latches.

6. On a perusal of the entire records, it is clear, that the main questions relating to the applicability

of the Water and Air Acts to the spinning mills were considered by the Appellate Authority, which, in

turn, rejected the contentions of the petitioner and accepted the arguments of the Board, with

reference to the applicability of the Acts. Only on the bais of the order passed by this Court on

26.02.1996, G.O. Ms. Nos. 165 and 166 were passed on 30.07.1996, classifying the industries as Red,

Orange and Green. Red indicates highly polluting; Orange indicates medium polluting and Green

indicates less polluting.

7. There is no dispute in the fact that prior to introduction of these G. Os., consent fee was levied

based on the Gross Fixed Assets only. After the same was struck down by the Division, the first

respondent considered various factors and revised the consent fee structure, on the basis of

quantum and grade of pollution, caused by various industries.

8. The industries are categorised as Red, Orange and Green, based on pollution potential only. For

each category, consent fee is differentiated, based on Gross Fixed Assets, for small and large

industries and, as such, there is no material to conclude that there is an arbitration for fixing the

quantum.

9. As per the counter filed by the respondents, an industry with Gross Fixed Assets of Rs. 1.00 Crore

falls under Red category and will be charged Rs. 7,500/- per year whereas if it falls under Orange or

Green category, it will be charged Rs. 6,000/- and 5,000/- respectively. The amounts fixed for Orange

and Green category are renewable once in two years, if the industries comply with the stipulations.

From this, it is clear that the amounts come to Rs. 3,000/- and 2,500/- for Orange and Green

categories per year respectively. This shows that there is a substantial difference between the

categories. Therefore, the prayer made by the petitioners in these Writ Petitions, seeking for

quashing of the impugned G.O. Ms. Nos. 165 and 166, dated 30.07.1996, is without any valid

reasons, that too after a lapse of eight years, and is not sustainable.

10. Writ Petitions are dismissed. No costs. Also, the connected W.P.M.P. Nos. 5875 to 5878 of 2005

are dismissed.